EXHIBIT 99.1
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AMENDMENT THREE TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT THREE TO AMENDED AND RESTATED CREDIT AGREEMENT
("Amendment") is made and entered into as of this 26th day of September, 2003
(the "Effective Date"), by and among NORTH AMERICAN GALVANIZING & COATINGS,
INC., a Delaware corporation formerly known as Kinark Corporation ("NAGC") as
"Guarantor", and NORTH AMERICAN GALVANIZING COMPANY, a Delaware corporation
("NAG") (NAGC and NAG are herein collectively referred to as "Borrowers" and
separately as "Borrower"), and BANK ONE, NA (as successor by merger to Bank One,
Oklahoma, NA) ("Bank").
INTRODUCTORY STATEMENT
A. Reference is made to the Amended and Restated Credit Agreement dated
November 26, 2001, by and among Guarantor, Borrower and Bank, as amended by the
Amendment One to the Amended and Restated Credit Agreement dated October 28,
2002 and the Amendment Two to the Amended and Restated Credit Agreement dated
January 28, 2003 (as amended, the "Credit Agreement"), pursuant to which exists
a: (i) Term Loan initially equaling $3,692,594.87; (ii) $9,000,000 Revolving
Commitment; and (iii) $3,000,000 Construction Loan which has converted to term
loan with a current outstanding balance of $2,833,332. Terms used herein shall
have the meaning ascribed to them in the Credit Agreement, unless otherwise
defined herein.
B. Borrowers have requested Bank to: (i) reduce the $9,000,000
Revolving Credit Facility to $7,000,000; and (ii) extend the maturity dates to
January 1, 2005 as to the $7,000,000 Revolving Note, the $1,911,924.16 Term
Note, and the $2,833,332 Construction Note; and Bank has agreed to accommodate
Borrower's request, subject to the following:
AGREEMENT
For valuable consideration received the parties agree to the following:
1. Loan Documents. Each of the Loan Documents is hereby amended to evidence that
any reference to (i) "$9,000,000" in the context of the Revolving Credit
Facility is hereby amended to read "$7,000,000" and (ii) "Kinark Corporation"
and/or "Kinark" shall now read "North American Galvanizing & Coatings, Inc."
and/or "NAGC" as applicable. Borrowers agree to execute and deliver any
certificates, documents and agreements reasonably required by Bank to evidence
such name change and to verify the enforceability and priority of all rights
conferred upon Bank; and Borrowers irrevocably authorize Bank to electronically
file documentation it deems necessary to maintain first and prior liens in the
Collateral with all necessary and appropriate filing offices.
2. Amendments to Credit Agreement.
2.1. Revolving Credit Facility. (i) The term "Revolving Commitment" is
hereby amended
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to replace the sum "$9,000,000" with "$7,000,000"; (ii) the term "Revolving
Commitment Period" is hereby amended to replace the date "June 30, 2004" with
"January 1, 2005"; and (iii) the Maturity Date of the Revolving Note is hereby
extended to January 1, 2005, as further evidenced by the $7,000,000 Promissory
Note ("$7,000,000 Revolving Note") in form and content as set forth on Schedule
"2.1" hereto.
2.2. Term Note. The Maturity Date of the Term Note is hereby extended
to January 1, 2005, as further evidenced by the $1,911,924.16 Promissory Note
("$1,911,924.16 Term Note") in form and content as set forth on Schedule "2.2"
hereto.
2.3. Construction Note. The Maturity Date of the Construction Note is
hereby extended to January 1, 2005, further evidenced by the $2,833,332
Promissory Note ("$2,833,332 Construction Note") in form and content as set
forth on Schedule "2.3" hereto.
2.4. Bond L/C. The term "Bond L/C" is hereby amended to evidence that
the originally issued Bond L/C (No. STI 15477) currently has a face amount of
$7,744,057 and an expiry date of January 1, 2005.
3. Ratification of Loan Documents. Each Borrower hereby ratifies and confirms
the Loan Documents to which they are a party, and represent and warrant that (i)
all Loan Documents, including the extended Revolving Note, constitute legal and
valid obligations as to Borrowers enforceable in accordance with their
respective terms, and (ii) no Material Adverse Effect exists.
4. Ratification of Guaranty. Each Guarantor, whether with respect to a Guaranty
pursuant to Section 3.6 of the Credit Agreement or with respect to a specific
Guaranty Agreement executed and delivered pursuant to Section 3.7 of the Credit
Agreement, hereby acknowledges and accepts the extension of the Revolving Note,
Term Note and Construction Note and hereby ratifies and confirms their
respective guaranty obligations.
5. CONDITIONS OF LENDING.
5.1. Effective Date. This Agreement shall be effective as of the
Effective Date, subject to the Borrowers' satisfaction of all of the conditions
set forth in Section 5.2. The delivery of the Loan Documents shall be made on or
as of the Effective Date at such time and place as the parties shall mutually
agree.
5.2. Conditions Precedent. The effectiveness of this Credit Agreement
is subject to the Borrowers' satisfaction of the following conditions precedent
at or as of the Effective Date:
5.2.1. Loan Documents. This Agreement, the extended $7,000,000
Revolving Note, the extended $1,911,924.16 Term Note, the extended
$2,833,332 Construction Note, and any other Loan Documents requested by
Bank shall have been duly and validly authorized, executed and
delivered to Bank by the appropriate parties thereto, all in form and
substance satisfactory to Bank.
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5.2.2. Incumbency Certificates. If requested, the Bank shall
have received a certificate executed by the duly elected and acting
corporate secretary of each of the Loan Parties stating the names and
titles and containing specimen signatures of the officers authorized to
execute and deliver Loan Documents on behalf of such Loan Party.
5.2.3. Lien Searches. The Bank shall have received certified
responses to UCC lien search requests reflecting that there are no
effective UCC financing statements on file in any filing offices in the
States of Oklahoma and Delaware (or any other state in which any of the
Loan Parties is organized or in which it owns any tangible personal
property) naming any of the Loan Parties as debtor, other than
financing statements relating to Permitted Liens.
5.2.4. Other Matters. The Borrowers shall have provided the
Bank with such reports, information, financial statements, and other
documents as the Bank has reasonably requested to evidence the
Borrowers' compliance with the terms and conditions of this Agreement
and the Loan Documents.
5.2.5. Fees. The Borrowers shall have paid all fees provided
for in this Agreement, to the extent such fees are dues and payable at
or as of the Effective Date.
6. Construction; Applicable Law. This Amendment and the other Loan Documents are
contracts made under, and shall be construed in accordance with, the laws of the
State of Oklahoma. Nothing in this Amendment shall be construed to constitute
the Bank as a joint venturer with the Borrowers or to constitute a partnership
among the parties. The descriptive headings of the Sections of this Amendment
are for convenience only and shall not be used in the construction of the
content of this Amendment.
7. Binding Effect. This Amendment and the other Loan Documents shall be binding
on, and shall inure to the benefit of, the parties hereto and their respective
successors and assigns; provided, that without the prior, written consent of the
Bank, neither of the Borrower will assign or transfer any of its interests,
rights or obligations arising out of or relating to the Loan Documents. No third
party shall be considered as an intended beneficiary of this Amendment or have
any rights hereunder.
8. Severability. In the event any one or more of the provisions contained in
this Amendment or the other Loan Documents shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect and in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
thereof.
9. Entire Amendment; Conflicting Provisions. This Amendment and the Loan
Documents constitute the entire Amendment of the parties hereto with respect to
the Facilities and all matters arising out of or related thereto. The Schedules
attached hereto are incorporated herein for all purposes. In the event of any
conflict between or among the provisions of this Amendment and the provisions of
any other Loan Documents, the provisions of this Amendment shall control.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Bank and the Borrowers have caused this
Amendment to be duly executed effective as of the date first above written.
NORTH AMERICAN GALVANIZING & COATINGS,
INC., a Delaware corporation, formerly
known as Kinark Corporation, as Borrower
and Guarantor
By /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Vice President
NORTH AMERICAN GALVANIZING
COMPANY, a Delaware corporation,
as Borrower and Guarantor
By /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Vice President
BANK ONE, NA
By /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Assistant Vice
President
"Subsidiary Guarantors"
PREMIER COATINGS, INC.,
an Oklahoma corporation
By /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Vice President
REINFORCING SERVICE, INC.,
an Oklahoma Corporation
By /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Vice President
XXXXXX GALVANIZING COMPANY-KANSAS
CITY, an Oklahoma corporation
By /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Vice President
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Schedule "2.1"
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($7,000,000.00 Revolving Note)
Schedule "2.2"
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($1,911,924.16 Term Note)
Schedule "2.3"
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($2,833,332 Construction Note)
