EXHIBIT 99.1
NINTH AMENDMENT
TO LOAN AND SECURITY AGREEMENT
This NINTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Amendment") is entered into as of the 31st day of July, 1997, by
and among XXXXXX MANUFACTURING AND TECHNOLOGY, INC., a Delaware
corporation (the "Borrower"), TRANSAMERICA BUSINESS CREDIT
CORPORATION, as agent (the "Agent"), and the lenders parties to the
Loan Agreement referred to below (the "Lenders").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have
heretofore entered in a Loan and Security Agreement dated
October 22, 1993, as amended (the "Loan Agreement"); and
WHEREAS, the Agent, the Lenders and the Borrower wish to enter
into this Amendment to make certain changes to the Loan Agreement;
NOW, THEREFORE, in consideration of the premises and intending
to be legally bound hereby, the parties hereto hereby agree as
follows:
1. Definitions. Capitalized terms used herein but not
defined herein shall have the respective meanings ascribed to them
in the Loan Agreement.
2. Amendments to Change Borrowing Base Reporting. Subject
to the Borrower's maintaining, at all times, Excess Availability of
at least Ten Million Dollars ($10,000,000), the Borrower's duty to
provide Borrowing Base Certificates to the Agent shall be changed
from a weekly reporting frequency to a monthly reporting frequency.
The change shall be effected by (a) amending Section 2.4(a) of the
Loan Agreement in its entirety to read as follows:
(a) (i) So long as (x) no Default, Event of Default or
Subsidiary Event of Default has occurred and exists and (y)
Excess Availability is Ten Million Dollars ($10,000,000) or
more, Borrower shall, on the fifth Business Day following the
end of each month, provide Agent with preliminary Borrowing
Base Certificates for itself and for each Subsidiary on a
consolidating basis for such month, and on the fifteenth day
following the end of each month, unless sooner requested by
Agent, provide Agent with the final versions of such Borrowing
Base Certificates, each in the form attached hereto as Exhibit
A-1 for such month; and (ii) (x) after the occurrence and
during the continuance of any Default, Event of Default or
Subsidiary Event of Default or (y) if and for so long as
Excess Availability is less than Ten Million Dollars
($10,000,000), Borrower shall, on the second Business Day
following the end of each week, unless sooner requested by
Agent, provide Agent with Borrowing Base Certificates for
itself and for each Subsidiary on a consolidating basis in the
form attached hereto as Exhibit A-2 for such week.
(b) deleting the words "EXHIBIT A Form of Borrowing Base
Certificate" on the List of Exhibits and substituting the following
words therefor:
EXHIBIT A-1 Form of Monthly Borrowing Base Certificate
EXHIBIT A-2 Form of Weekly Borrowing Base Certificate
(c) deleting the Exhibit A attached to the Loan Agreement; and (d)
providing that the Exhibits A-1 and A-2 to the Loan Agreement shall
be in the forms thereof attached hereto as Exhibits A-1 and A-2.
3. Amendments to Section 4.1. Effective July 1, 1997, the
non-default interest rate with respect to Base Rate Loans or any
other Obligations other than LIBOR Loans is hereby decreased from
a fluctuating rate equal to one-half percent (.50%) per annum above
the Base Rate in effect from time to time to a fluctuating rate
equal to the Base Rate in effect from time to time and with respect
to LIBOR Loans is hereby decreased from a fluctuating rate equal to
two and three-quarters percent (2 3/4%) per annum above the LIBOR
Rate to two percent (2%) per annum above the LIBOR Rate. Such
decreases shall be effected by (a) deleting the words "one-half
percent (.50%) per annum above" in the third and fourth lines of
Section 4.1(a)(i) of the Loan Agreement and (b) deleting the words
"two and three-quarters percent (2 3/4%)" from the third line of
Section 4.1(a)(ii) of the Loan Agreement and substituting the words
"two percent (2%)" therefor.
4. Amendments to Eliminate Unused Line Fee. Effective July
1, 1997, the unused line fee shall be eliminated. Such elimination
shall be effected by (a) deleting Section 4.5 of the Loan
Agreement, (b) deleting the words "(with an appropriate adjustment
of any amount payable under Section 4.5 to avoid duplicative
charges to Borrower)" beginning in the fourth to the last line of
Section 4.10 of the Loan Agreement, and (c) deleting the words
"together with all paid unused line fees pursuant to Section 4.5"
from the third and fourth lines of Section 22.4(b) of the Loan
Agreement.
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5. Amendments to Cash Dominion Procedures. So long as no
Default, Event of Default or Subsidiary Event of Default has
occurred and Borrower maintains at least Ten Million Dollars
($10,000,000) of Excess Availability, the Borrower shall be
permitted to receive directly from the Collecting Banks the funds
deposited therein. This change shall be effected (a) by adding to
Section 1.1 of the Loan Agreement, in appropriate alphabetical
order, the following definition:
"Blockage Notices" shall have the meaning ascribed to
such term in Section 13.1 hereof.
and (b) by amending and restating Section 13 of the Loan Agreement
in its entirety to read as follows:
13. Payments; Collection.
13.1 Unless otherwise agreed in writing from time to time
hereafter, all payments which Borrower is required to make to
Agent under this Agreement or under any of the other Loan
Documents may, at the option of the Agent, be made by
appropriate debits to the Loan Account. Agent may in its sole
discretion elect to xxxx Borrower for such amounts in which
case the amount shall be immediately due and payable with
interest thereon as provided herein. At any time after either
(a) an Event of Default has occurred or (b) Agent reasonably
believes or suspects that Borrower or its Affiliates have
committed fraud or made a statement, representation or
warranty which shall have been materially false or misleading
when made, then Agent or its designee may, at any time, notify
customers or Account Debtors that Receivables have been
assigned to Agent or of its security interest therein, collect
the same directly and charge all reasonable out-of-pocket
collection costs and expenses to the Loan Account. All
proceeds of Collateral (including all revenue, collections and
other monies from the Subsidiaries under the Subsidiary Loan
Agreements), all dividends and other sums paid to Borrower by
the Subsidiaries and all payments of money by any Person
shall, at the direction of Agent, be deposited by the Borrower
into a lockbox account, dominion account or such other
"blocked account" as Agent may require pursuant to an
arrangement with such bank as may be selected by Borrower and
be acceptable to Agent ("Collecting Bank"). The Borrower
shall issue, and shall cause the Subsidiary Borrowers to
issue, to the Collecting Banks irrevocable letters of
instruction, in form and substance satisfactory to the Agent,
directing the Collecting Banks, upon receipt of instructions
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("Blockage Notices") to do so from the Agent, thenceforth to
transfer all funds then and thereafter deposited in the
Collecting Banks solely to the Agent, either to any account
maintained by the Agent at the Collecting Bank or by wire
transfer to appropriate account(s) of the Agent, and not to
the Borrower or any Subsidiary. All funds deposited in such
"blocked account" shall immediately become Collateral and the
Borrower shall use its best efforts to obtain the agreement by
the Collecting Bank to waive any offset rights against the
funds so deposited. Agent assumes no responsibility for such
"blocked account" arrangement, including without limitation,
any claim of accord and satisfaction or release with respect
to deposits accepted by the Collecting Bank thereunder.
Alternatively, upon the issuance of a Blockage Notice, Agent
may establish depository accounts in the name of Agent at a
bank or banks for the deposit of such funds and Borrower shall
deposit all proceeds of Receivables, dividends and other sums
paid to Borrower by the Subsidiaries or cause same to be
deposited, in kind, in such depository accounts of Agent in
lieu of depositing same to the blocked accounts. Except as
otherwise contemplated in Section 13.2 hereof, Agent will
credit all such payments to Borrower's Loan Account,
conditional upon final collection; credit will be given for
cleared funds received prior to 1:00 p.m. Eastern Standard or
Daylight Savings Time, by Agent at its account at the First
National Bank of Chicago (or such other account of Agent as it
shall designate in writing to Borrower), two (2) Business Days
after such receipt thereof and until receipt by Agent at such
address, no credit will be given. In all cases, Borrower's
Loan Account will be credited only with the net amounts
actually received by Agent. Should any check or item of
payment not be honored for payment, then, Borrower shall be
deemed not to have made such payment, and interest shall be
recalculated accordingly. Any prepayment of any LIBOR Loan
shall be accompanied by payment of any amounts required under
Section 5.4 (b) hereof.
Borrower agrees to pay to Agent any and all out-of-pocket
fees, costs and expenses which Agent incurs in connection with
opening and maintaining any "blocked account" and depositing
for collection by Agent any check or item of payment received
and/or delivered to any Collecting Bank, Agent or any Lender,
respectively, on account of the Obligations and Borrower
further agrees to reimburse Agent for any claims asserted by
the Collecting Banks in connection with Borrower's "blocked
account" and any amounts paid to any Collecting Banks arising
out of Agent's indemnification of such Collecting Banks
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against damages incurred by the Collecting Bank in the operation of
such Borrower's "blocked account". Borrower further agrees that
Agent shall have the right, in its sole discretion, to require
Borrower to establish lock box accounts in addition to, or in lieu
of, Borrower's "blocked account", which lock box accounts will be
subject to an agreement (consistent with the provisions of this
Agreement) acceptable to Agent among Agent, Borrower and the
Collecting Banks.
13.2 Notwithstanding the provisions of Section 13.1
hereof and Article 13 of the Subsidiary Loan Agreements, so
long as (a) no Default, Event of Default or Subsidiary Event
of Default has occurred and (b) Excess Availability is Ten
Million Dollars ($10,000,000) or more, Borrower shall be
permitted to receive directly from the Collecting Banks the
funds deposited therein. However, if at any time (x) any
Default, Event of Default or Subsidiary Event of Default shall
occur, or (y) Excess Availability shall be or become less than
Ten Million Dollars ($10,000,000), such permission shall
automatically cease and Agent may, and upon the request of the
Required Lenders shall, then and thereafter issue Blockage
Notices to the Collecting Banks.
6. Amendment to Working Capital Covenant. Section 18.1 of the
Loan Agreement shall be amended by deleting the columns titled
"Period" and "Amount" therein and replacing them in their entirety
with the following:
Period Amount
------ ------
April 1, 1997 through June 30, 1997 $60,000,000
July 1, 1997 through September 30, 1997 $55,000,000
October 1, 1997 through December 31, 1997 $50,000,000
January 1, 1998 through March 31, 1998 $50,000,000
April 1, 1998 through June 30, 1998 $50,000,000
July 1, 1998 through September 30, 1998 $50,000,000
October 1, 1998 through December 31, 1998 $50,000,000
Every Month Thereafter $50,000,000 plus
an increase of
$250,000 each
January 1,
commencing
January 1, 1999
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7. Amendment to Fixed Charge Coverage Ratio Covenant. Section
18.2 of the Loan Agreement shall be amended and restated in its
entirety to read as follows:
"Borrower shall cause Borrower's and its Subsidiaries
consolidated Fixed Charge Coverage Ratio, as measured at the end of
each calendar quarter, for the fiscal year to date period then
ending, to exceed the following during the term of this Agreement:
Period Ratio
------ -----
April 1, 1997 through June 30, 1997 .85 to 1
July 1, 1997 through September 30, 1997 .85 to 1
October 1, 1997 through December 31, 1997 .85 to 1
January 1, 1998 through March 31, 1998 .65 to 1
April 1, 1998 through June 30, 1998 .95 to 1
July 1, 1998 through September 30, 1998 1.00 to 1
Each March 31, June 30, September 30,
and December 31 thereafter 1.00 to 1
provided, however, that Borrower's and its Subsidiaries'
consolidated Fixed Charge Coverage Ratio as of the end of any such
quarter shall be computed (i) without taking into account payments
made by the Borrower in connection with any severance package
provided by the Borrower to Xxxxxxx X. Xxxxxxxxx and (ii) without
including in the computation of the sum of the consolidated amount
of all Capital Expenditures those Capital Expenditures made by the
Borrower or its Subsidiaries in connection with the development or
manufacturing of occupant restraint systems or any component
thereof.
8. Amendment to Tangible Net Worth Covenant. Section 18.3 of
the Loan Agreement shall be amended by deleting the columns titled
"Period" and "Amount" therein and replacing them in their entirety
with the following:
Period Amount
------ ------
April 1, 1997 through June 30, 1997 $1,000,000
July 1, 1997 through September 30, 1997 $1,000,000
October 1, 1997 through December 31, 1997 $1,000,000
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Period Amount
------ ------
January 1, 1998 through March 31, 1998 $2,000,000
April 1, 1998 through June 30, 1998 $2,000,000
July 1, 1998 through September 30, 1998 $2,000,000
October 1, 1998 through December 31, 1998 $2,000,000
Every Month Thereafter $2,000,000 plus an increase
of $1,000,000 each January 1,
commencing January 1, 1999
9. Amendment to Capital Expenditures Covenant. Section 18.4
of the Loan Agreement shall be amended by deleting the words "in
the calendar quarter ending December 31, 1993, in an aggregate
amount exceeding Two Million Five Hundred Thousand Dollars
($2,500,000) and in any calendar year thereafter, in an aggregate
amount exceeding Seven Million Dollars ($7,000,000)" beginning in
the second line therein and substituting the following therefor:
"in the calendar year ending December 31, 1997, and in any
calendar year thereafter, in an aggregate amount exceeding
Twenty Million Dollars ($20,000,000)".
10. Amendment to R&D Expenditures Covenant. Section 18.5 of
the Loan Agreement shall be amended by (i) deleting "1994" in the
second line therein and substituting "1997" therefor and (ii)
deleting the words "Five Million Dollars ($5,000,000)" in the third
line therein and substituting "Fourteen Million Dollars
($14,000,000)" therefor.
11. Elimination of the Net Income Before Taxes Financial
Covenant. Section 18.6 of the Loan Agreement shall be deleted in
its entirety.
12. Conditions to Effectiveness. Except for Sections 3 and
4 of this Amendment which shall each be effective as of July 1,
1997, and Sections 6, 7, 8, 9, 10 and 11 of this Amendment which
shall each be effective as of April 1, 1997, this Amendment shall
be effective as of the date first above written, provided, however,
that any and all Sections of this Amendment shall only be effective
upon satisfaction of the following conditions precedent:
12.1. Execution of this Amendment. The Agent shall
have received this Amendment executed by a duly authorized officer
of each Lender and the Borrower.
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12.2. Amendment to Subsidiary Loan Documents. The
Borrower and each Subsidiary shall have executed an amendment (the
"Subsidiary Amendment") to their respective Subsidiary Loan
Agreement, substantially in the form of Exhibit B attached hereto,
and shall have delivered such other documents and instruments in
connection therewith as the Agent shall require, each in form and
substance satisfactory to the Agent.
12.3. Confirmation of Loan Documents. Each Subsidiary
shall have executed the Confirmation of Loan Documents set forth
below.
12.4. Corporate Proceedings. The Agent shall have
received a copy of the resolutions (in form and substance
reasonably satisfactory to Agent) of the Board of Directors of the
Borrower and the Subsidiaries authorizing (i) the execution,
delivery and performance of this Amendment, the documents referred
to in Sections 12.2 and 12.3 hereof, and the other Loan Documents
contemplated hereby and thereby, and (ii) the consummation of the
transactions contemplated hereby and thereby, all certified by the
Secretary or an Assistant Secretary of the Borrower and the
Subsidiaries on the date hereof. Such certificate shall state that
the resolutions set forth therein have not been amended, modified,
revoked or rescinded as of the date of such certificate.
12.5. No Defaults. No Default, Event of Default or
Subsidiary Event of Default shall have occurred and be existing
either before or immediately after giving effect to this Amendment.
12.6. Representations and Warranties True. The
representations and warranties contained herein, in the Loan
Agreement and in all other Loan Documents (other than
representations and warranties that expressly speak only as of a
specified different date) shall be true and correct both as of the
date hereof and immediately after giving effect to this Amendment.
12.7. Certificate of Officers. The Agent shall have
received a certificate, in form and substance satisfactory to the
Agent, dated the date of the effectiveness of this Amendment and
signed by the President or a Vice President and the Treasurer or
Controller of the Borrower certifying that the conditions set forth
in this Section 12 have been fulfilled and as to such other matters
as the Agent shall reasonably require.
12.8. Other Conditions. The Agent shall have received
such other agreements, opinions, certificates, representations,
instruments and other documents as it may reasonably require, all
in form and substance satisfactory to the Agent.
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13. Representations and Warranties. The Borrower hereby
represents and warrants to the Lenders and the Agent that (i) the
execution, delivery and performance of this Amendment and the other
documents and instruments to be executed and delivered in
connection herewith by the Borrower and the Subsidiaries are within
their respective corporate powers and have been duly authorized by
all necessary corporate action, (ii) no consent, approval,
authorization of, or declaration or filing with, any governmental
or public authority, and no consent of any other Person, is
required in connection with the execution, delivery and performance
of this Amendment and the other documents and instruments to be
executed and delivered in connection herewith by the Borrower and
the Subsidiaries, except for those already duly obtained, (iii)
this Amendment and the other documents and instruments to be
executed and delivered in connection herewith by the Borrower and
the Subsidiaries have been duly executed by the Borrower and such
Subsidiaries and constitute the legal, valid and binding obligation
of the Borrower and such Subsidiaries, enforceable against them in
accordance with their terms, (iv) the execution, delivery and
performance by the Borrower and the Subsidiaries of this Amendment
and the other documents and instruments to be executed and
delivered in connection herewith by the Borrower and the
Subsidiaries do not and will not conflict with, or constitute a
violation or breach of, or constitute a default under, or result in
the creation or imposition of any Lien upon the property of the
Borrower or any of the Subsidiaries by reason of the terms of (a)
any contract, mortgage, Lien, lease, agreement, indenture, or
instrument to which the Borrower or such Subsidiary is a party or
which is binding upon it, (b) any requirement of law applicable to
the Borrower or such Subsidiary, or (c) the Certificate or Articles
of Incorporation or By-Laws of the Borrower or such Subsidiary, (v)
no event has occurred and is continuing which constitutes a
Default, an Event of Default or a Subsidiary Event of Default, and
(vi) no change or development or event involving a prospective
change, which in any such case has had or could reasonably be
expected to have a material adverse effect on the ability of the
Borrower to perform its obligations under the Loan Documents or on
the business, operations, assets, conditions (financial or
otherwise) or prospects of Borrower on a consolidated basis, has
occurred and is continuing.
14. Authorization to Sign Amendments to Subsidiary Loan
Documents and other Documents. By their signatures below, the
Lenders hereby authorize Transamerica Business Credit Corporation,
as Agent for the Lenders, to consent to the execution and delivery
of the Subsidiary Amendment, substantially in the form of Exhibit B
attached hereto; to consent to the delivery of such other documents
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and instruments in connection therewith as the Agent shall require,
each in form and substance satisfactory to the Agent; and to
execute and deliver such written consents and other documents or
instruments in connection therewith as the Agent shall deem
appropriate.
15. Reference to and Effect on Loan Documents.
15.1. On and after the date hereof, each reference
in the Loan Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference in the other
Loan Documents to the Loan Agreement, shall mean and be a reference
to the Loan Agreement as amended hereby.
15.2. Except as specifically amended or waived
above, all of the terms of the Loan Agreement shall remain
unchanged and in full force and effect.
15.3. The execution, delivery and effectiveness of
this Amendment shall not operate as a waiver of any Default, Event
of Default or Subsidiary Event of Default, nor as a waiver of any
right, power or remedy of any Lender or the Agent under the Loan
Agreement or any of the other Loan Documents, nor constitute a
waiver of any provision of the Loan Agreement or any of the other
Loan Documents, other than as specifically set forth herein.
16. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and
delivered (including delivery by telecopier) shall be deemed to be
an original and all of which taken together shall constitute one
and the same instrument.
17. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
18. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not
constitute a part of this Amendment or be given any substantive
effect.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their proper and duly
authorized officers as of the date set forth above.
XXXXXX MANUFACTURING AND TECHNOLOGY, INC.
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Secretary
AGENT:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxxx Xxxxx
-------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
LENDERS:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxxx Xxxxx
-------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: First Vice President
NATIONAL BANK OF CANADA
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
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CONFIRMATION OF LOAN DOCUMENTS
Each of the undersigned hereby acknowledges that the
Loan and Security Agreement, dated October 22, 1993 (as amended or
modified, the "Loan Agreement"), among Xxxxxx Manufacturing and
Technology, Inc., a Delaware corporation, Transamerica Business
Credit Corporation, as agent, and each of the financial
institutions identified on the signature pages thereto is being
amended pursuant to the foregoing Ninth Amendment to Loan and
Security Agreement (the "Amendment"). Each of the undersigned
hereby confirms that each of the Loan Documents to which it is a
party shall remain in full force and effect on the terms provided
therein and that each reference in the Loan Documents to the
"Parent Loan Agreement" shall be a reference to the Loan Agreement
as modified or amended by the Amendment. Each of the undersigned
further confirms that there exists no Default or Event of Default
(as defined in the Subsidiary Loan Agreement to which it is a
party) and that all representations and warranties made by it in
the Loan Documents to which it is a party are true and correct as
though made on and as of the date hereof (other than
representations and warranties that expressly speak only as of a
specified different date).
Dated: As of July 31, 1997
AMCAN SPECIALTY STEELS, INC.;
DIMETRICS, INC.; ELECTRODYNAMICS,
INC.; XXXX X. XXXXXXXX ASSOCIATES,
INC.; PORCELAIN PRODUCTS CO.; XXXX
INDUSTRIES, INC.; XXXXXX AUTOMOTIVE
PRODUCTS, INC.; XXXXXX DEFENSE
SYSTEMS, INC.; XXXXXX INTERNATIONAL
INVESTMENT CORPORATION; XXXXXX METALS
TECHNOLOGY, INC.; UNIVERSAL PROPULSION
COMPANY; WATERBURY COMPANIES, INC.;
WDC, INC.
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Secretary
