Exhibit 99.1
INCREMENTAL TERM LOAN AMENDMENT
To: JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank)
as Administrative Agent under the Credit Agreement referred to below
Reference is hereby made to the Amended and Restated Credit Agreement dated
as of September 1, 2004 (as amended, amended and restated, supplemented, waived
or otherwise modified from time to time, the "Credit Agreement") among XXXXXXX &
XXXXXX PRODUCTS CO. (the "Borrower"), XXXXXXX & XXXXXX CORPORATION ("Holdings"),
the financial institutions from time to time party thereto (the "Lenders"),
CREDIT SUISSE FIRST BOSTON, as syndication agent, DEUTSCHE BANK SECURITIES INC.,
as documentation agent, and JPMORGAN CHASE BANK, N.A. (formerly known as
JPMorgan Chase Bank), as administrative agent (in such capacity, the
"Administrative Agent"). Capitalized terms used and not defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
I. Incremental Amendment. (a) This amendment (the
"Incremental Amendment") is the Incremental Term Loan Amendment
referred to in the Credit Agreement, and the Borrower and Credit
Suisse First Boston (the "Incremental Lender") hereby notify you that:
1. the total Incremental Term Loan Commitment of the
Incremental Lender is $75,000,000; and
2. (x) subject to the satisfaction of the conditions to
effectiveness set forth in Section 3 hereof, the Incremental Term Loan
Activation Date is April 4, 2005 and (y) subject to (A) the effectiveness of
Amendment No. 1 to the Credit Agreement ("Amendment No. 1") and (B) the
satisfaction of the conditions to Borrowing under Section 4.01 of the Credit
Agreement, the funding of the Incremental Term Loan will occur on the later of
the first business day following the effective date of Amendment No. 1 and April
11, 2005. In the event that the conditions to Borrowing the Incremental Term
Loan are not satisfied on or before April 18, 2005, then this Incremental
Amendment and the Incremental Term Loan Commitment hereunder shall automatically
terminate unless CSFB shall, in its discretion, agree to an extension.
(b) Each of the Incremental Lender and the Borrower hereby agrees that the
Incremental Term Loan made pursuant to this Incremental Amendment will be a
Tranche B-1 Term Loan for any and all purposes under the Credit Agreement.
II. Representations and Warranties. The Borrower represents
and warrants to the Administrative Agent and to the Incremental Lender
that:
A. this Incremental Amendment has been duly
authorized, executed and delivered by it and constitutes a
legal, valid and binding obligation of each Loan Party party
hereto, enforceable against such Loan Party in accordance with
its terms;
B. after giving effect to this Incremental Amendment
and Amendment No. 1, the representations and warranties set
forth in Article III of the Credit Agreement are true and
correct in all material respects on and as of the date hereof
with the same effect as if made on and as of the date hereof,
except to the extent such representations and warranties
expressly relate to an earlier date;
C. the proceeds of the Incremental Term Loan will be
used in accordance with Section 4.5(h) of the indenture
governing the Existing Subordinated Notes and Section 4.5(8)
of the indenture governing the Existing Senior Notes; and
D. after giving effect to this Incremental Amendment
and Amendment No. 1, no Default or Event of Default has
occurred and is continuing.
III. Conditions to Effectiveness. This Incremental
Amendment shall become effective when:
A. the Administrative Agent shall have received
counterparts of this Incremental Amendment that, when taken
together, bear the signatures of Holdings, the Borrower and
the Incremental Lender;
B. the representations and warranties set forth in
Section 2 hereof are true and correct (as set forth on an
officer's certificate delivered to the Administrative Agent
and CSFB); and
C. all fees and expenses required to be paid or
reimbursed by the Borrower pursuant to the Credit Agreement,
including all invoiced fees and expenses of counsel to the
Administrative Agent shall have been paid or reimbursed, on or
prior to effectiveness as applicable.
IV. Acknowledgement. The Incremental Lender hereby
acknowledges that it will vote to approve Amendment No. 1. The
Incremental Lender further acknowledges, and each Lender (an
"Assignee") to which the Incremental Lender assigns or participates
any such Incremental Term Loan pursuant to the Credit Agreement will
acknowledge by acceptance of such assignment or participation, that
the Borrower is not current in its filings with the United States
Securities and Exchange Commission and the publicly available
financial information concerning the Borrower and its subsidiaries is
incomplete and subject to revision and change upon audit and review by
the Borrower's auditors. The Incremental Lender acknowledges, and each
such Assignee will acknowledge by acceptance of such assignment or
participation, that it is nonetheless making its evaluation of the
Borrower and the Credit Agreement, the Loans and Commitments and the
transactions contemplated hereby and making its decision to make or
acquire Loans under such circumstances. None of the Borrower or any of
its Affiliates takes any responsibility for any decision by the
Incremental Lender or any of such Assignee to limit the scope of the
information it has obtained or elected to obtain in connection with
its evaluation of the Borrower and this Incremental Amendment, the
Loans and Commitments and the transactions contemplated hereby. The
foregoing acknowledgement does not limit any rights that any Lender
may otherwise have under the Credit Agreement.
V. APPLICABLE LAW. THIS INCREMENTAL AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
VI. Credit Agreement. Except as expressly set forth herein,
this Incremental Amendment shall not by implication or otherwise
limit, impair, constitute a waiver of, or otherwise affect the rights
and remedies of any party under, the Credit Agreement, nor alter,
modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit
Agreement, all of which are ratified and affirmed in all respects and
shall continue in full force and effect after giving effect to Waiver
No. 1 to the Credit Agreement dated as of March 31, 2005. The
interpretation of the provisions hereof shall be deemed to give effect
to such Waiver No. 1.
VII. Counterparts. This Incremental Amendment may be
executed in two or more counterparts, each of which shall constitute
an original, but all of which when taken together shall constitute but
one agreement. Delivery of an executed counterpart of a signature page
of this Incremental Amendment by facsimile transmission shall be as
effective as delivery of a manually executed counterpart of this
Incremental Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Incremental Amendment to be duly executed by their authorized officers as of
April 4, 2005.
XXXXXXX & XXXXXX PRODUCTS CO.,
by /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX CORPORATION,
by /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
CREDIT SUISSE FIRST BOSTON, acting through
its Cayman Islands Branch, as the
Incremental Lender,
by /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Director
by /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Associate
CONSENTED TO:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
by /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Managing Director
