EXHIBIT 99.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT dated as of April 12, 2006
(this "Amendment") is entered into among XXXXXXX INDUSTRIES, INC., a Delaware
corporation (the "Borrower"), the financial institutions party hereto
(together with their respective successors and assigns, the "Banks"), LASALLE
BANK MIDWEST NATIONAL ASSOCIATION, formerly known as Standard Federal Bank
N.A., as administrative agent for the Banks (in such capacity, the "Agent").
RECITAL
The Borrower, the Banks and the Agent are parties to a Credit Agreement
dated as of November 6, 2003, as amended by a First Amendment to Credit
Agreement dated as of September 27, 2004 (the "Credit Agreement"). The
Borrower and the Guarantors desire to amend the Credit Agreement and the
Banks and the Agent are willing to do so strictly in accordance with the
terms hereof.
TERMS
In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE 1.
AMENDMENTS
The Credit Agreement is amended as follows:
1.1 Reference in Section 3.6 to "$15,000,000" is deleted and
"$20,000,000" is substituted in each place thereof.
ARTICLE 2.
REPRESENTATIONS
The Borrower represents and warrants to the Banks and the Agent that:
2.1 Each of the Borrower and each Guarantor has full power and
authority to execute, deliver and perform this Amendment (including, in the
case of the Guarantors, the Consent and Agreement to this Amendment) and any
other agreements executed in connection herewith to which it is a party (this
Amendment and all of the other foregoing documents, the "Amendment
Documents"). Each of the Borrower and each Guarantor has taken all necessary
action to authorize the execution, delivery and performance of each Amendment
Document to which it is a party. No consent or authorization of, or filing
with, any Person (including, without limitation, any Governmental Authority)
is required in connection with the execution, delivery and performance by
Borrower or any Guarantor or the validity or enforceability against Borrower
or any Guarantor of the Amendment Documents.
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2.2 The execution, delivery and performance by each of the Borrower
and each Guarantor of each Amendment Document to which it is a party do not
and will not (a) violate any Requirement of Law applicable to Borrower or any
Subsidiary, (b) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any contractual obligation
of Borrower or any Subsidiary, (c) result in or require the creation or
imposition of any Lien of any nature whatsoever upon any of Borrower's or any
Subsidiary's properties or assets, other than in favor of the Banks, or (d)
require any approval of any court or Governmental Authority or any approval
or consent of any Person under any contractual obligation of Borrower.
2.3 Each Amendment Document, when executed and delivered, will be
the legally valid and binding obligations of Borrower and of the Guarantors,
as the case may be, enforceable against it and them in accordance with their
respective terms, except as enforcement may be limited by equitable
principles or by bankruptcy, insolvency, reorganization, moratorium or
similar laws, or equitable principles relating to or limiting creditors'
rights generally.
2.4 After giving effect to the amendments herein contained, the
representations and warranties contained in the Credit Agreement and the
representations and warranties contained in the other Loan Documents are true
on and as of the date hereof with the same force and effect as if made on and
as of the date hereof, and no Event of Default or Unmatured Event of Default
exists or has occurred and is continuing on the date hereof.
ARTICLE 3.
CONDITIONS PRECEDENT.
This Amendment shall be effective as of the date hereof when each of the
following has been satisfied:
3.1 This Amendment shall be signed by the Borrower and the Required
Banks.
3.2 Each Guarantor shall have executed the Consent and Agreement
attached hereto.
3.3 The Borrower shall deliver to the Agent any such other
agreements and documents in connection herewith as requested by the Agent.
ARTICLE 4.
MISCELLANEOUS.
4.1 References in the Credit Agreement or in any other Loan Document
to the Credit Agreement shall be deemed to be references to the Credit
Agreement as amended hereby and as further amended from time to time.
4.2 Except as expressly amended hereby, the Borrower and each
Guarantor agrees that the Loan Documents are ratified and confirmed and shall
remain in full force and effect and that it has no set off, counterclaim,
defense or other claim or dispute with respect to any of the foregoing. The
terms used but not defined herein shall have the respective meanings ascribed
thereto in the Credit Agreement.
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4.3 The validity of this Amendment, its construction, interpretation
and enforcement and the rights of the parties hereto will be determined under,
governed by and construed in accordance with the internal laws of the State
of Michigan, without regard to principles of conflicts of law.
4.4 This Amendment may be signed upon any number of counterparts
with the same effect as if the signatures thereto and hereto were upon the
same instrument, and telecopied signatures shall be enforceable as originals.
IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of the day and year first above
written.
"BORROWER"
XXXXXXX INDUSTRIES, INC.
By: /s/Xxxx XxXxx
Print Name: Xxxx XxXxx
Its: CFO
"BANKS"
LASALLE BANK MIDWEST NATIONAL
ASSOCIATION, as a Bank and as Agent
By: /s/Xxxxxx X. Xxxx
Print Name: Xxxxxx X. Xxxx
Its: Senior Vice President
SUNTRUST BANK, as a Bank and as
Syndication Agent
By: /s/Xxxxx X. Xxxx
Print Name: Xxxxx X. Xxxx
Its: Director
UNION PLANTERS BANK, NATIONAL
ASSOCIATION, as a Bank and as
Documentation Agent
By: /s/Xxxxx X. Xxxxxx
Print Name: Xxxxx X. Xxxxxx
Its: Senior Vice President
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FIRST TENNESSEE BANK, as a Bank and as
Managing Agent
By: /s/Xxxx Xxxxxxxxx
Print Name: Xxxx Xxxxxxxxx
Its: Sr. Vice President
REGIONS BANK, as a Bank
By: /s/Xxxxx X. Xxxxxx
Print Name: Xxxxx X. Xxxxxx
Its: Senior Vice President
Attn: _____________________________
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CONSENT AND AGREEMENT
As of the date and year first above written, each of the undersigned
hereby:
(a) fully consents to the terms and provisions of the above
Amendment and the consummation of the transactions contemplated thereby, and
agrees to all terms and provisions of the above Amendment applicable to it;
(b) agrees that all Loan Documents executed by the undersigned in
connection with the Credit Agreement (collectively, the "Documents") are
hereby ratified and confirmed and shall remain in full force and effect, and
the undersigned acknowledges that it has no setoff, counterclaim, defense or
other claim or dispute with respect to any Document or any transactions in
connection therewith; and
(c) acknowledges that it is in its interest and to its financial
benefit to execute this consent and agreement.
WTC HOLDING COMPANY, INC.
By: /s/Xxxxx X. Xxxxxx
Its: President
/s/Xxxx Xxxxxxxxx
as Vice President - Legal and Secretary
for each of the following Guarantors:
XXXXXXX BRASS CO.
XXXXXXX INDUSTRIAL REALTY CO.
ITAWAMBA INDUSTRIAL GAS COMPANY, INC.
XXXXXXX PLASTICS CORPORATION, INC.
XXXXXXX BRASS FORGING COMPANY, INC.
XXXXXXX COPPER FITTINGS COMPANY, INC.
XXXXXXX FITTINGS COMPANY, INC.
XXXXXXX COPPER TUBE COMPANY, INC.
XXXXXXX FORMED TUBE COMPANY, INC.
XXXXXXX IMPACTS COMPANY, INC.
XXXXXXX LINE SET, INC.
XXXXXXX REFRIGERATION PRODUCTS
COMPANY, INC.
XXXXXXX REFRIGERATION
COMPANY, INC.
XXXXXXX STREAMLINE CO.
XXXXXXX CASTING COMPANY, INC.
B&K INDUSTRIES, INC.
XXXXXXX COPPER TUBE PRODUCTS, INC.
XXXXXXX PLASTICS HOLDING COMPANY, INC.
XXXXXXX PRESS COMPANY, INC.
XXXXXXX EAST, INC.
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