Exhibit 99.5
▇▇▇▇ INDUSTRIES, INC.
POSTCLOSING MATTERS AGREEMENT
Reference is hereby made to the Amended and Restated Credit Agreement,
dated as of December 31, 2002 (as such agreement may be amended, restated,
supplemented or otherwise modified from time to time, together with all
attached exhibits and schedules, the "Amended and Restated Credit
Agreement"), made among ▇▇▇▇ Industries, Inc., a Delaware corporation (the
"Parent "), each of the Parent's domestic Subsidiaries, as borrowers
(together with the Parent, collectively, the "Borrowers"), the Parent and
each of the Parent's domestic Subsidiaries, as guarantors (the "Guarantors"
and each a "Guarantor", and together with the Borrowers, collectively the
"Credit Parties" and each a "Credit Party"), the financial institutions
that are or may from time to time become parties hereto, as lenders
(together with their respective successors and assigns, the "Lenders" and
each a "Lender"), LaSalle Bank National Association, a national banking
association, as administrative agent for the Lenders (in its individual
capacity, "LaSalle", in its capacity as administrative agent for the
Lenders, the "Administrative Agent"), and National City Bank, a national
banking association, as syndication agent for the Lenders (in its
individual capacity, "NCB", in its capacity as syndication agent for the
Lenders, the "Syndication Agent" and together with the Administrative
Agent, the "Agents"). Capitalized terms used in this Amendment and not
otherwise defined have the meanings assigned to such terms in the Amended
and Restated Credit Agreement.
The Credit Parties hereby agree to provide each of the items listed on
Schedule A hereto on the terms set forth on such Schedule A. Any failure of
the Credit Parties to provide any of the items listed on Schedule A on the
terms set forth thereon shall constitute an Event of Default under the
Amended and Restated Credit Agreement. This Agreement is the Postclosing
Matters Agreement referred to in the Credit Agreement and shall be given
the effect with respect thereto set forth in Section 11.3 of the Credit
Agreement.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the Credit Parties have executed this Post-Closing
Matters Agreement as of this 31st day of December, 2002.
CREDIT PARTIES:
▇▇▇▇ INDUSTRIES, INC.
▇▇▇▇ INSTALLATION SERVICES, INC.
▇▇▇▇ ENCLOSURES, INC.
▇▇▇▇, INC.
▇▇▇▇ PRODUCTS, INC.
▇▇▇▇ CONSTRUCTION, INC.
FOLDING CARRIER CORP.
▇▇▇▇ FOREIGN HOLDINGS, INC.
UNR REALTY, INC.
By: /s/ ▇▇▇▇ ▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇
Title: Vice President and CFO
(for each of the foregoing
entities)
SCHEDULE A
----------
(i) The Credit Parties shall have delivered to the Administrative Agent
opinions of (a) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, (b) ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, and (c) such opinions of local counsel
that the Agents may reasonably request, each in form and substance
satisfactory to the Agents, as soon as possible but in any event no
later than January 17, 2003. Any failure of the Credit Parties to
provide any of the items listed in this clause (i) shall constitute
an Event of Default under the Amended and Restated Credit
Agreement.
(ii) The Credit Parties shall have delivered to the Administrative Agent
a certificate of the secretary or an assistant secretary of each of
the Credit Parties as of the Closing Date certifying the names of
the officer or officers of such entity authorized to sign the Loan
Documents and the Asset Purchase Documents to which such entity is
a party, together with a sample of the true signature of each such
officer (it being understood that the Agents and each Lender may
conclusively rely on each such certificate until formally advised
by a like certificate of any changes therein), in form and
substance satisfactory to the Agents, as soon as possible but in
any event no later than January 17, 2003. Any failure of the Credit
Parties to provide any of the items listed in this clause (ii)
shall constitute an Event of Default under the Amended and Restated
Credit Agreement.
(iii) TheCredit Parties shall have delivered to the Administrative Agent
certified copies of each of the Credit Parties' articles or
certificate of incorporation and by-laws and long form good
standing certificates and, if applicable, tax certificates, for all
states in which each Credit Party is qualified to do business, as
soon as possible but in any event no later than January 17, 2003.
Any failure of the Credit Parties to provide any of the items
listed in this clause (iii) shall constitute an Event of Default
under the Amended and Restated Credit Agreement.
(iv) The Credit Parties shall have delivered to the Administrative Agent
a certificate, substantially in the form of Exhibit F of the
Amended and Restated Credit Agreement, signed by a vice president
of each of the Credit Parties dated as of the Closing Date,
affirming the matters set forth in Section 11.2(A) of the Amended
and Restated Credit Agreement as of the Closing Date, as soon as
possible but in any event no later than January 17, 2003. Any
failure of the Credit Parties to provide any of the items listed in
this clause (vi) shall constitute an Event of Default under the
Amended and Restated Credit Agreement.
(v) The Credit Parties shall have delivered to the Administrative Agent
a Borrowing Base Certificate dated as of the Closing Date based on
data as of December 27, 2002, in form and substance satisfactory to
the Agents, as soon as possible but in any event no later than
January 17, 2003. Any failure of the Credit Parties to provide any
of the items listed in this clause (v) shall constitute an Event of
Default under the Amended and Restated Credit Agreement.
(vi) The Credit Parties shall have delivered to the Administrative
Agent:
(a) audited consolidated financial statements for the Parent and
its Subsidiaries for the Fiscal Years ended December 31, 2001,
2000 and 1999, and unaudited interim consolidated financial
statements for the Parent and its Subsidiaries for each Fiscal
Quarter ended after the Fiscal Year ended December 31, 2000.
Such financial statements shall be materially consistent with
the information previously delivered to the Agents by the
Parent prior to the Closing Date;
(b) in form and substance satisfactory to the Agents, a pro forma
consolidated balance sheet of the Parent and its Subsidiaries
dated as of the most recent consolidated balance sheet
delivered pursuant to clause (vi)(a) above, giving effect to
the transactions contemplated by the Amended and Restated
Credit Agreement and the Asset Purchase Documents. Such
balance sheets shall be materially consistent with the
information previously delivered to the Agents by the Parent
prior to the Closing Date; and
(c) in form and substance satisfactory to the Agents, projected
income statements, balance sheets and cash flow statements of
the Parent and its Subsidiaries on a monthly basis for the
period from January 2003 through December 2003 giving effect
to the transactions contemplated by the Amended and Restated
Credit Agreement;
each as soon as possible but in any event no later than January 17,
2003. Any failure of the Credit Parties to provide any of the items
listed in this clause (vi) shall constitute an Event of Default
under the Amended and Restated Credit Agreement.
(vii) The Credit Parties shall have delivered to the Administrative Agent
Schedule 9.4 to the Amended and Restated Credit Agreement, in form
and substance satisfactory to the Agents, as soon as possible but
in any event no later than January 17, 2003. Any failure of the
Credit Parties to provide any of the items listed in this clause
(vii) shall constitute an Event of Default under the Amended and
Restated Credit Agreement.
(viii) The Credit Parties shall have delivered to the Administrative Agent
Schedule 9.6 to the Amended and Restated Credit Agreement, in form
and substance satisfactory to the Agents, as soon as possible but
in any event no later than January 17, 2003. Any failure of the
Credit Parties to provide any of the items listed in this clause
(viii) shall constitute an Event of Default under the Amended and
Restated Credit Agreement.
(ix) The Credit Parties shall have delivered to the Administrative Agent
Schedule 9.8 to the Amended and Restated Credit Agreement, in form
and substance satisfactory to the Agents, as soon as possible but
in any event no later than January 17, 2003. Any failure of the
Credit Parties to provide any of the items listed in this clause
(ix) shall constitute an Event of Default under the Amended and
Restated Credit Agreement.
(x) The Credit Parties shall have delivered to the Administrative Agent
Schedule 9.15 to the Amended and Restated Credit Agreement, in form
and substance satisfactory to the Agents, as soon as possible but
in any event no later than January 17, 2003. Any failure of the
Credit Parties to provide any of the items listed in this clause
(x) shall constitute an Event of Default under the Amended and
Restated Credit Agreement.
(xi) The Credit Parties shall have delivered to the Administrative Agent
Schedule 9.16 to the Amended and Restated Credit Agreement, in form
and substance satisfactory to the Agents, as soon as possible but
in any event no later than January 17, 2003. Any failure of the
Credit Parties to provide any of the items listed in this clause
(xi) shall constitute an Event of Default under the Amended and
Restated Credit Agreement.
(xii) The Credit Parties shall have delivered to the Administrative Agent
Schedule 9.17(A) to the Amended and Restated Credit Agreement, in
form and substance satisfactory to the Agents, as soon as possible
but in any event no later than January 17, 2003. Any failure of the
Credit Parties to provide any of the items listed in this clause
(xii) shall constitute an Event of Default under the Amended and
Restated Credit Agreement.
(xiii) The Credit Parties shall have delivered to the Administrative Agent
Schedule 9.17(B) to the Amended and Restated Credit Agreement, in
form and substance satisfactory to the Agents, as soon as possible
but in any event no later than January 17, 2003. Any failure of the
Credit Parties to provide any of the items listed in this clause
(xiii) shall constitute an Event of Default under the Amended and
Restated Credit Agreement.
(xiv) The Credit Parties shall have delivered to the Administrative Agent
Schedule 9.20 to the Amended and Restated Credit Agreement, in form
and substance satisfactory to the Agents, as soon as possible but
in any event no later than January 17, 2003. Any failure of the
Credit Parties to provide any of the items listed in this clause
(xiv) shall constitute an Event of Default under the Amended and
Restated Credit Agreement.
(xv) The Credit Parties shall have delivered to the Administrative Agent
Schedule 9.27 to the Amended and Restated Credit Agreement, in form
and substance satisfactory to the Agents, as soon as possible but
in any event no later than January 17, 2003. Any failure of the
Credit Parties to provide any of the items listed in this clause
(xv) shall constitute an Event of Default under the Amended and
Restated Credit Agreement.
(xvi) The Credit Parties shall have delivered to the Administrative Agent
Schedule 10.7 to the Amended and Restated Credit Agreement, in form
and substance satisfactory to the Agents, as soon as possible but
in any event no later than January 17, 2003. Any failure of the
Credit Parties to provide any of the items listed in this clause
(xvi) shall constitute an Event of Default under the Amended and
Restated Credit Agreement.
(xvii) The Credit Parties shall have delivered to the Administrative Agent
Schedule 10.8 to the Amended and Restated Credit Agreement, in form
and substance satisfactory to the Agents, as soon as possible but
in any event no later than January 17, 2003. Any failure of the
Credit Parties to provide any of the items listed in this clause
(xvii) shall constitute an Event of Default under the Amended and
Restated Credit Agreement.
(xviii) The Credit Parties shall have delivered to the Administrative Agent
Schedule 10.14 to the Amended and Restated Credit Agreement, in
form and substance satisfactory to the Agents, as soon as possible
but in any event no later than January 17, 2003. Any failure of the
Credit Parties to provide any of the items listed in this clause
(xviii) shall constitute an Event of Default under the Amended and
Restated Credit Agreement.
(xix) The Credit Parties shall have delivered to the Administrative Agent
Schedule 10.20 to the Amended and Restated Credit Agreement, in
form and substance satisfactory to the Agents, as soon as possible
but in any event no later than January 17, 2003. Any failure of the
Credit Parties to provide any of the items listed in this clause
(xix) shall constitute an Event of Default under the Amended and
Restated Credit Agreement.