Exhibit 99.1
CONSENT AND SEVENTH AMENDMENT
This CONSENT AND SEVENTH AMENDMENT (this "Consent") is
entered into as of the 5th day of June 1997, by and among XXXXXX
MANUFACTURING AND TECHNOLOGY, INC., a Delaware corporation (the
"Borrower"), the lenders parties to the Loan Agreement referred to
below (the "Lenders"), and TRANSAMERICA BUSINESS CREDIT
CORPORATION, a Delaware corporation, as agent (the "Agent") for the
Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have
heretofore entered into a Loan and Security Agreement dated October
22, 1993, as amended (the "Loan Agreement");
WHEREAS, the Borrower has formed Xxxxxx International
Sales Corporation, a Barbados corporation ("TISC"), and the
Borrower has purchased one share of the stock of TISC for a
purchase price of $1.00 (the "TISC Stock") such that TISC is a
wholly-owned subsidiary of the Borrower (the "TISC Formation");
WHEREAS, TISC has filed an election with the Internal
Revenue Service for the purpose of being treated as a Foreign Sales
Corporation ("FSC") as that term is defined in Section 922 of the
Internal Revenue Code;
WHEREAS, the Borrower intends to cause TISC to act as
agent for all of the export sales of the Subsidiaries (other than
Xxxxxx Canada, Inc.), and, in return, TISC will earn commissions to
be payable by the Subsidiaries (the "TISC Commissions");
WHEREAS, the Borrower intends to cause TISC to
subcontract certain of its responsibilities as agent to each of the
Subsidiaries (the "TISC Subcontracted Services");
WHEREAS, each of the Subsidiaries intends to charge TISC
certain fees for the performance of the TISC Subcontracted Services
(the "TISC Service Fees") and any TISC Service Fees payable by TISC
to a Subsidiary will be deducted from any TISC Commissions payable
by such Subsidiary to TISC;
WHEREAS, the TISC Formation, the earning and collection
of the TISC Commissions, the subcontracting of the TISC
Subcontracted Services and the payment of the TISC Service Fees
(collectively, the "TISC Operations" and, together with the TISC
Formation, the "TISC Formation and Operations") require the written
consent of the Agent and the Required Lenders, and the Borrower has
requested that the Agent and the Required Lenders so consent;
WHEREAS, the Agent and the Required Lenders are willing
to consent to the TISC Formation and Operations on the terms and
conditions herein set forth;
NOW, THEREFORE, in consideration of the foregoing
premises and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and intending to
be legally bound, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein and not
defined herein shall have the respective meanings given to such
terms in the Loan Agreement.
2. Consent. The Agent and the Required Lenders hereby
consent, effective as of January 23, 1997, to the TISC Formation
and Operations; provided, however, that such consent is subject to
the following conditions:
2.1. The TISC Formation and Operations shall
substantially conform to the terms set forth in the
letter from Xxxxxxx Xxx to Xxxx X. Xxxxxxxxxxxx, Esq.,
dated February 21, 1997, a copy of which is attached
hereto as Exhibit A;
2.2. Within thirty (30) days after the end of each
fiscal quarter of the Borrower, (i) the Borrower shall
cause TISC to declare and to pay to the Borrower a
dividend in an amount equal to the lesser of (a) the
excess of the cash and cash equivalents reflected on
TISC's balance sheet at the end of such fiscal quarter
over $750,000 and (b) the maximum amount permitted by
applicable law or (ii) the Borrower shall cause TISC to
make a loan to the Borrower in an amount equal to the
excess of the cash and cash equivalents reflected on
TISC's balance sheet at the end of such fiscal quarter
over $750,000, such loan to be repaid in full by the
Borrower within sixty (60) days after the end of the
fiscal year of the Borrower, provided, however, that
within thirty (30) days following the repayment of such
loan by the Borrower, the Borrower shall cause TISC to
declare and to pay to the Borrower a dividend in an
amount equal to the lesser of (x) the amount of such loan
repayment and (y) the maximum amount permitted by
applicable law. The parties hereto agree that any
dividend or loan made by TISC to the Borrower pursuant to
this Section 2.2 may at any time exceed the amount
required under this Section 2.2.
2.3. TISC is established in accordance with, and at
all times maintains its qualification as an FSC under,
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Sections 921 through 927 of the Internal Revenue Code and
the rules and regulations promulgated thereunder;
2.4. TISC shall not, at any time, have any material
assets other than claims for and proceeds of the TISC
Commissions;
2.5. TISC shall not, at any time, have any material
liabilities other than obligations in respect of the TISC
Service Fees and the TISC Commissions;
2.6. TISC shall not, at any time, conduct any
material business other than the TISC Operations as
described herein and in Exhibit A attached hereto;
2.7. Such consent is strictly limited to the facts
set forth herein and in Exhibit A attached hereto; and
2.8. All other conditions set forth in Section 6
hereof shall have been satisfied.
3. Springing Stock Pledge. Upon the failure by the
Borrower to satisfy the conditions set forth in Section 2.2 of this
Consent or upon the occurrence of any other Default, Event of
Default or Subsidiary Event of Default, the Borrower shall, at the
request of the Agent and as security for the payment and
performance of all Obligations, deliver, pledge and assign to the
Agent, for its benefit and the ratable benefit of the Lenders, a
first priority security interest in all of the Borrower's right,
title and interest in and to the TISC Stock, together with all of
the Borrower's rights and privileges with respect thereto. The
Borrower shall provide to the Agent such other agreements,
financing statements, opinions, certificates, representations,
instruments and other documents as the Agent may reasonably require
in connection with the stock pledge, all in form and substance
satisfactory to the Agent.
4. Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and the Lenders that (i) the
execution, delivery and performance of this Consent, 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 Consent and the other documents and instruments to be
executed and delivered in connection herewith by the Borrower and
the Subsidiaries, except for this Consent and those others already
duly obtained, (iii) this Consent and the Confirmation of Loan
Documents set forth below have been duly executed by the Borrower
and the Subsidiaries, respectively, and constitute the legal, valid
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and binding obligation of the Borrower and the Subsidiaries, as the
case may be, enforceable against them in accordance with their
terms, (iv) the execution, delivery and performance by the Borrower
and the Subsidiaries of this Consent and the Confirmation of Loan
Documents, respectively, and the other documents and instruments to
be executed and delivered in connection herewith by the Borrower 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 (other than Liens the creation of which are
expressly contemplated hereunder) by reason of the terms of (a) any
contract, mortgage, Lien, lease, agreement, indenture, or
instrument to which the Borrower or any Subsidiary is a party or
which is binding upon it, (b) any requirement of law applicable to
the Borrower or the Subsidiaries or (c) the Certificate or Articles
of Incorporation or By-Laws of the Borrower or the Subsidiaries,
and (v) no event has occurred and is continuing which constitutes
a Default, an Event of Default or a Subsidiary Event of Default.
5. Amendments to Loan Agreement. Immediately after the
consummation of the transactions contemplated hereby, the Loan
Agreement shall be amended in the following respect:
5.1. The definition of the term "Non-Operating
Subsidiaries" set forth in Section 1.1 of the Loan Agreement shall
be amended in its entirety to read as follows:
"Non-Operating Subsidiaries" shall mean individually
and in the aggregate Xxxxxxx Corporation, Xxxxxxx Aero
Engineering Corporation, The Waterbury Button Company,
Xxxxxx International Investment Corporation, Xxxxxx
Automotive Products, Inc., XxXxxxxx Industries, Inc.,
Dimetrics International Inc., WDC, Inc., Xxxxxx Canada,
Inc. and Xxxxxx International Sales Corporation.
5.2. The following words shall be inserted at the
beginning of Schedule 9.20 of the Loan Agreement:
Borrower
Certain amounts loaned to the Borrower by Xxxxxx
International Sales Corporation, as contemplated by the
terms of the Consent and Seventh Amendment, dated June 5,
1997, by and among the Borrower, the Lenders and the
Agent.
6. Conditions to Effectiveness. This Consent shall be
effective as of the date first above written upon satisfaction of
the following conditions precedent:
6.1. Execution of this Consent. The Agent shall
have received a copy of this Consent duly executed by the
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Borrower and the Lenders constituting the Required
Lenders;
6.2. Confirmation of Loan Documents. Each of the
Subsidiaries shall have executed the Confirmation of Loan
Documents set forth below;
6.3. No Defaults. No Default, Event of Default or
Subsidiary Event of Default shall have occurred and be
existing before this Consent shall have become effective,
and no Default, Event of Default or Subsidiary Event of
Default shall result, occur or exist immediately after
this Consent shall have become effective; and
6.4. 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 Consent.
7. Reference to and Effect on Loan Documents.
7.1. Except as specifically modified herein,
all of the terms of the Loan Agreement and the Subsidiary Loan
Agreements shall remain unchanged and in full force and effect.
7.2. Except as expressly set forth herein, the
execution, delivery and effectiveness of this Consent shall not
operate as a waiver of any right, power or remedy of any Lender or
the Agent under the Loan Agreement, any Subsidiary Loan Agreement
or any of the other Loan Documents, nor constitute a waiver of any
Default, Event of Default or Subsidiary Event of Default, or a
consent to any noncompliance with any provision of the Loan
Agreement, any Subsidiary Loan Agreement or any of the other Loan
Documents.
8. Execution in Counterparts. This Consent 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.
9. GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
10. Headings. Section headings in this Consent are
included herein for convenience of reference only and shall not
constitute a part of this Consent or be given any substantive
effect.
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IN WITNESS WHEREOF, the parties hereto have caused this
Consent 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/s Xxxx X. Xxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
TRANSAMERICA BUSINESS CREDIT CORPORATION, as Agent
By: s/s Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
LENDERS:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: s/s Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO
By: s/s Xxxxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: First Vice President
NATIONAL BANK OF CANADA
By: s/s Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
By: s/s Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
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CONFIRMATION OF LOAN DOCUMENTS
Each of the undersigned hereby consents to the execution
and delivery of the foregoing Consent. 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 "Loan
Agreement" shall be a reference to the Loan Agreement as modified
by the Consent. 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 June 5, 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.; XXXXXX
TECHNOLOGY, INC.; UNIVERSAL
PROPULSION COMPANY; WATERBURY
COMPANIES, INC.; WDC, INC.;
By: s/s Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Secretary
EXHIBIT A
THE TISC PROPOSAL LETTER
See Attached.
