EXHIBIT 99.1
THIRD AMENDMENT TO AND CONSENT UNDER
THE AMENDED AND RESTATED REVOLVING CREDIT,
TERM LOAN AND GUARANTY AGREEMENT
THIRD AMENDMENT TO AND CONSENT, dated as of February [ ], 2006
(the "Amendment"), under the AMENDED AND RESTATED REVOLVING CREDIT, TERM LOAN
AND GUARANTY AGREEMENT, dated as of July 28, 2005 (as heretofore amended,
restated, modified or supplemented, the "Credit Agreement"), among XXXXXXX &
XXXXXX PRODUCTS CO., a Delaware corporation (the "Borrower"), a debtor and
debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy Code,
XXXXXXX & XXXXXX CORPORATION, a Delaware corporation and the parent company of
the Borrower (the "Parent"), and the subsidiaries of the Borrower signatory
hereto (together with the Parent, each a "Guarantor" and collectively the
"Guarantors"), each of which Guarantors is a debtor and debtor-in-possession in
a case pending under Chapter 11 of the Bankruptcy Code, JPMORGAN CHASE BANK,
N.A., a national banking association ("JPMCB") and each of the other financial
institutions from time to time party hereto (together with JPMCB, the "Lenders")
and JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, the
"Agent") for the Lenders.
W I T N E S S E T H :
WHEREAS, the Borrower, the Guarantors, the Lenders and the
Agent are parties to the Credit Agreement;
WHEREAS, the Borrower and the Guarantors own or have interests
in certain intellectual property (the "Intellectual Property"), which (i) will
be licensed or assigned to IAC Acquisition Corporation Limited (the "Buyer") in
exchange for various licensing agreements and other consideration, including
cash consideration of approximately $11,046,686, pursuant to the Master Sale
Agreement Relating to the Business of Xxxxxxx & Xxxxxx Group Companies (In
Administration), dated as of November 28, 2005, among the English
court-appointed administrators (the "Administrators") of Xxxxxxx & Xxxxxx Europe
S.A. and its affiliated European debtors (collectively, the "European Debtors")
and the Buyer and (ii) may be licensed or assigned to certain prospective buyers
of assets subject to the UK Administration in exchange for various licensing
agreements and other consideration, including cash consideration of
approximately $1,453,314 (collectively the transactions set forth in the
immediately preceding clauses (i) and (ii), the "IP Sale Transaction");
WHEREAS, the Borrower and the Guarantors are seeking to sell
100% of their equity interest in Xxxxxxx & Xxxxxx MOBIS, LLC, a non-debtor joint
venture with Hyundai MOBIS, and receive repayment of related intercompany
obligations for an aggregate amount of approximately $8,382,000 (the "MOBIS
Sale") and further seeking to monetize certain annuity contracts underlying the
Borrower's prepetition Supplemental Employee Retirement Program and utilize cash
held in certain of the Borrower's rabbi trust accounts for an aggregate amount
of approximately $6,600,000 (the "SERP Transaction", together with the IP Sale
Transaction and the MOBIS Sale, the "Third Amendment Transactions");
WHEREAS, the Borrower and the Guarantors have requested that
the Agent and the Lenders consent to the Third Amendment Transactions as set
forth herein and agree to additional amendments described herein; and
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WHEREAS, the Lenders are willing to agree to such requested
amendments and consents, but only upon the terms and conditions of this
Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
SECTION 2. Amendments to Section 1.01 of the Credit Agreement
(Defined Terms). Section 1.01 of the Credit Agreement is hereby amended to (a)
modify the defined term "Carve-Out" to (i) delete the closed parenthesis
immediately after the phrase "whether before or after the Customer Financing
Period and the New Customer Financing Period", (ii) delete the phrase "Customer
Financing Period and the New Customer Financing Period" wherever it appears
therein and insert in lieu thereof the phrase "Customer Financing Period, the
New Customer Financing Period and the Borrowing Base Deferral Period" and (iii)
insert a closed parenthesis immediately after the phrase "Debtors' counsel to
the Agent" in the second proviso of clause (ii) therein and (b) insert the
following defined term in the appropriate alphabetical order:
""Borrowing Base Deferral Period" shall mean the period from
April 1, 2006 through and including September 30, 2006.".
SECTION 3. Amendment to Section 2.01 of the Credit Agreement
(Commitments of the Lenders). Section 2.01 of the Credit Agreement is hereby
amended to insert the phrase "and the Borrowing Base Deferral Period"
immediately after the phrase "New Customer Financing Period" where it appears in
paragraph (c) therein.
SECTION 4. Amendment to Section 2.03 of the Credit Agreement
(Letters of Credit). Section 2.03 of the Credit Agreement is hereby amended to
insert the phrase "and the Borrowing Base Deferral Period" immediately after the
phrase "New Customer Financing Period" where it appears in paragraph (a)
therein.
SECTION 5. Amendment to Section 2.13 of the Credit Agreement
(Mandatory Prepayment; Commitment Termination). Section 2.13 of the Credit
Agreement is hereby amended to (a) delete the phrase "Customer Financing Period
and the New Customer Financing Period" wherever it appears in paragraph (a)
therein and insert in lieu thereof the phrase "Customer Financing Period, the
New Customer Financing Period and the Borrowing Base Deferral Period", and (b)
delete paragraph (c) in its entirety and insert in lieu thereof the following:
"(c) Any Net Proceeds described in paragraph (b) of this
Section shall be applied as follows: first, ratably (x) to the
reduction of the Total Tranche A Commitment of the Tranche A Lenders
(and the corresponding prepayment of the Tranche A Loans and any
unreimbursed LC Disbursements to the extent such amounts exceed the
Total Tranche A Commitment as so reduced) and (y) to the prepayment of
the Tranche B Loans of the Tranche B Lenders, until such Tranche A
Loans, unreimbursed LC Disbursements and Tranche B Loans have been
repaid in full (plus any accrued but unpaid interest and fees thereon,
including without limitation any interest payable pursuant to Section
2.09), and second, to the Cash Collateralization of the Letters of
Credit (if any) in an aggregate amount equal to 105% of the
Uncollateralized LC Exposure. If after giving effect to the application
of Net Proceeds described in clauses first and second of this Section
2.13(c), there shall remain any Net Proceeds available, such Net
Proceeds shall not be
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subject to the prepayment, reimbursement and collateralization
provisions of this Section 2.13(c), but remain subject to the Liens
securing the Secured Obligations in accordance with the Loan Documents
and the Orders."
SECTION 6. Amendment to Section 6.03 of the Credit Agreement
(Indebtedness). Section 6.03 of the Credit Agreement is hereby amended to (a)
insert immediately after the reference to "$20,000,000" in clause (iv)(B)
therein the following phrase: "(which amount shall be increased by an amount not
to exceed an additional $10,000,000 (x) only to the extent such amount is
necessary to settle outstanding commercial disputes of the Designated Foreign
Subsidiaries previously identified to the Agent and (y) so long as the Borrower
has provided the Agent with at least three (3) Business Days' prior written
notice of the terms of such settlement)"; (b) delete the word "and" appearing at
the end of clause (xv) therein and insert in lieu thereof a semi-colon; and (c)
insert the following immediately prior to the period at the end therein:
"; and (xvii) recharacterization as a Capitalized Lease of the
operating lease in respect of the facility located in
Hermosillo, Mexico".
SECTION 7. Amendment to Section 6.10 of the Credit Agreement
(Investments, Loans and Advances). Section 6.10 of the Credit Agreement is
hereby amended to delete the reference to "and (xi)" therein and insert in lieu
thereof the following:
"; (xi) investments in Foreign Subsidiaries permitted under
Section 6.11(ix); and (xii)".
SECTION 8. Amendment to Section 6.11 of the Credit Agreement
(Disposition of Assets). Section 6.11 of the Credit Agreement is hereby amended
to (a) delete the word "and" appearing at the end of clause (vii) therein and
insert in lieu thereof a comma, (b) delete the number "$2,500,000" in clause
(viii) therein and insert in lieu thereof the number "$7,500,000", and (c)
insert the following immediately prior to the period at the end therein:
"; and (ix) the disposition or transfer of equipment having a
net book value not to exceed $10,000,000 in the aggregate at any time
from the Borrower or any Guarantors to any Designated Foreign
Subsidiary; provided that (A) in calculating compliance with this
clause (ix), the Borrower may reduce the aggregate value of asset
transfers or dispositions from Loan Parties to Designated Foreign
Subsidiaries by the aggregate net book value of asset transfers or
dispositions by Designated Foreign Subsidiaries to Loan Parties and (B)
so long as such equipment continues to be subject to a first priority
Lien in favor of the Agent, for the benefit of the Lenders."
SECTION 9. Amendment to Section 10.01 of the Credit Agreement
(Notices). Section 10.01 of the Credit Agreement is hereby amended to delete the
reference to "Xxxxxx Xxxxxxxx" in clause (a)(ii) therein and insert in lieu
thereof a reference to "Xxx Xxxxxxxxx".
SECTION 10. Consents under the Credit Agreement to the Third
Amendment Transactions. (a) The Lenders hereby consent under Section 6.09
(Transactions with Affiliates) and Section 6.11 (Disposition of Assets) of the
Credit Agreement solely to the extent necessary to permit the Borrower and the
Guarantors to consummate the Third Amendment Transactions; provided, however,
the foregoing consent is conditioned upon compliance with paragraphs (b), (c)
and (d) below and application of the aggregate gross proceeds received by the
Borrower and the Guarantors from the Third Amendment Transactions, net of
withholding taxes payable arising from the IP Sale Transaction and any brokerage
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commissions directly related to the SERP Transaction and such other fees, costs
and expenses as are reasonably agreed to by the Agent (the "Net Transaction
Proceeds"), as follows:
i. as to the aggregate Net Transaction Proceeds arising from
the IP Sale Transaction, the Borrower and the Guarantors shall be
permitted to retain 75% of such Net Transaction Proceeds pursuant to
the terms of paragraph (c) below and shall, within one Business Day
after the receipt of such Net Transaction Proceeds, pay an amount equal
to 25% of such Net Transaction Proceeds to the Agent for the benefit of
the Lenders to be applied in the manner set forth in Section 2.13(c) of
the Credit Agreement;
ii. as to the aggregate Net Transaction Proceeds arising from
the MOBIS Sale, the Borrower and the Guarantors shall be permitted to
retain 30% of such Net Transaction Proceeds pursuant to the terms of
paragraph (c) below and shall, within one Business Day after the
receipt of such Net Transaction Proceeds, pay an amount equal to 70% of
such Net Transaction Proceeds to the Agent for the benefit of the
Lenders to be applied in the manner set forth in Section 2.13(c) of the
Credit Agreement; and
iii. as to the aggregate Net Transaction Proceeds arising from
the SERP Transaction, the Borrower and the Guarantors shall be
permitted to retain 30% of such Net Transaction Proceeds pursuant to
the terms of paragraph (c) below and shall, within one Business Day
after the receipt of such Net Transaction Proceeds, pay an amount equal
to 70% of such Net Transaction Proceeds to the Agent for the benefit of
the Lenders to be applied in the manner set forth in Section 2.13(c) of
the Credit Agreement.
(b) Notwithstanding the formula set forth in paragraph (a)
above, the Borrower and the Guarantors shall be permitted to retain 50% of the
aggregate Net Transaction Proceeds from the Third Amendment Transactions. To the
extent the formula set forth in paragraph (a) above would result in allocation
of more or less than 50% of the aggregate Net Transaction Proceeds to the
Borrower and the Guarantors after consummation of the IP Sale Transaction and
either the MOBIS Sale or the SERP Transaction, the Borrower and the Agent shall
agree to the reallocation of the Net Transaction Proceeds formula set forth in
paragraph (a) above in respect of the remaining Third Amendment Transaction,
such that the Borrower and the Guarantors shall retain 50% of the Net
Transaction Proceeds of all Third Amendment Transactions and 50% of the Net
Transaction Proceeds of all Third Amendment Transactions shall be applied in the
manner set forth in Section 2.13(c) of the Credit Agreement.
(c) Any Net Transaction Proceeds permitted to be retained by
the Borrower from the Third Amendment Transactions pursuant to paragraph (a)
above shall, within one Business Day after the receipt thereof, be deposited in
a segregated account maintained at JPMorgan Chase Bank, N.A., Account No. [ ] in
the name of Xxxxxxx & Xxxxxx Products Co. (the "Net Transaction Proceeds
Account") pursuant to documentation reasonably satisfactory to the Agent.
Amounts in the Net Transaction Proceeds Account shall not be available for use
by the Borrower; provided, however, the Borrower may, subject to satisfaction of
the conditions set forth in Section 4.02 of the Credit Agreement and paragraph
(d) below, withdraw up to $7,500,000 on any Business Day following delivery to
the Agent of prior written notice that the aggregate amount of all unrestricted
cash in the deposit and other accounts of the Borrower, the Guarantors and the
Designated Foreign Subsidiaries set forth on Schedule A hereto on the date of
delivery of such notice (such amount, "Available Cash") is less than $5,000,000.
(d) If at the end of any Business Day Available Cash exceeds
$15,000,000, the Borrower shall deposit on the next immediately succeeding
Business Day into the Net Transaction Proceeds Account an amount equal to such
excess up to the aggregate net amount of funds previously
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withdrawn from the Net Transaction Proceeds Account, after taking into account
the aggregate amount of withdrawals from the Net Transaction Proceeds Account
previously repaid pursuant to this paragraph (d).
SECTION 11. Other Consents under the Credit Agreement. (a) The
Lenders hereby further consent under Section 6.08 (Dividends; Capital Stock) and
Section 6.09 (Transactions with Affiliates) of the Credit Agreement to permit
the Borrower to dissolve the capital stock of Waterstone Insurance Inc. and to
transfer to the Borrower all assets of Waterstone Insurance Inc.
(b) The Lenders hereby further consent under Section 6.09
(Transactions with Affiliates) and Section 6.11 (Disposition of Assets) of the
Credit Agreement to permit the Borrower to sell its equity interest in Permali
do Brasil Industria e Comercio Ltda.; provided that the gross proceeds received
by the Borrower or any Subsidiary thereof in respect of such sale shall be
deposited in the Escrow Account pursuant to Section 12 below and shall be
allocated and applied in accordance therewith.
SECTION 12. Agreements pursuant to Section 6.09 of the Credit
Agreement (Transactions with Affiliates). The Lenders, the Borrower and the
Guarantors hereby agree that (a) within one Business Day of receipt by the
Borrower, any Guarantor or any Designated Foreign Subsidiary of any amount,
distribution or recovery arising in connection with the UK Administration and
the settlement of claims and accounts in respect thereof (including without
limitation, the sale or disposition of the equity interest in, and intercompany
payables by, direct and indirect Subsidiaries of the UK Debtors, but excluding
any payments received by the Borrower pursuant to any transition services
agreements between the Borrower and the Buyer), any such amount, distribution or
recovery shall be deposited into an escrow account with JPMorgan Chase Bank,
N.A. (the "Escrow Account") pursuant to terms and documentation reasonably
satisfactory to the Agent, (b) as promptly as practicable following the deposit
of any such amounts in the Escrow Account, the Agent, the Borrower and the
Guarantors shall enter into negotiations to determine the allocation and
application of amounts in the Escrow Account, and (c) no amounts shall be
released from the Escrow Account unless and until the Agent, the Required
Lenders, the Borrower and the Guarantors agree, in writing, to the allocation
and application of amounts maintained in the Escrow Account.
SECTION 13. Conditions to Effectiveness of Amendment. This
Amendment shall be effective on the date on which all of the following
conditions precedent have been satisfied or waived (the "Effective Date"): (a)
the Agent (or its counsel) shall have received a counterpart of the Amendment,
executed and delivered by a duly authorized officer of each of (i) the Borrower,
(ii) the Guarantors and (iii) the Required Lenders and (b) payment, on or before
February 13, 2006 of a fee equal to 0.125% of the outstanding principal amount
of such consenting Lender's Tranche B Loans and Tranche A Commitment, which fee
shall be payable to the Agent, for the ratable benefit of each Lender that
executes and delivers this Amendment on or before 5:00 p.m., New York City time,
on February 8, 2006.
SECTION 14. Representations and Warranties; No Default. After
giving effect to this Amendment, each of the Borrower and the Guarantors hereby
represents and warrants that all representations and warranties contained in the
Credit Agreement are true and correct in all material respects on and as of the
date hereof (unless stated to relate to a specific earlier date, in which case,
such representations and warranties shall be true and correct in all material
respects as of such earlier date) and that no Default or Event of Default shall
have occurred and be continuing or would result from the execution and delivery
of this Amendment.
SECTION 15. Continuing Effect; No Other Amendments or
Consents. Except as expressly amended or waived hereby, all of the terms and
provisions of the Credit Agreement and the
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other Loan Documents are and shall remain in full force and effect in accordance
with their terms. The Borrower and each Guarantor acknowledge and agree that
nothing in this Amendment shall, except as expressly provided herein, operate as
a waiver of any right, power or remedy of any Lender or Agent under any of the
Loan Documents or constitute an indication of the Lenders' willingness to
consent to any other amendment or consent to any other transaction not
referenced in Sections 10, 11 and 12 of this Amendment.
SECTION 16. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 17. Execution in Counterparts. This Amendment may be
executed by one or more of the parties to this Amendment on any number of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. The execution and delivery of
this Amendment by any Lender shall be binding upon each of its successors and
assigns (including transferees of its Commitments and Loans in whole or in part
prior to the effectiveness hereof) and binding in respect of all of its
Commitments and Loans, including any acquired subsequent to its execution and
delivery hereof and prior to the effectiveness hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
BORROWER:
XXXXXXX & XXXXXX PRODUCTS CO.
By:
----------------------------------------
Name:
Title:
GUARANTORS:
XXXXXXX & XXXXXX CORPORATION
AMCO CONVERTIBLE FABRICS, INC.
XXXXXX GROUP, LLC
BRUT PLASTICS, INC.
XXXXXXX & XXXXXX (GIBRALTAR) LIMITED
XXXXXXX & XXXXXX ACCESSORY MATS, INC.
XXXXXXX & XXXXXX ASSET SERVICES, INC.
XXXXXXX & XXXXXX AUTOMOTIVE (ARGENTINA), INC.
(F/K/A TEXTRON AUTOMOTIVE (ARGENTINA), INC.)
XXXXXXX & XXXXXX AUTOMOTIVE (ASIA), INC.
(F/K/A TEXTRON AUTOMOTIVE (ASIA), INC.)
XXXXXXX & XXXXXX AUTOMOTIVE EXTERIORS, INC.
(F/K/A TEXTRON AUTOMOTIVE EXTERIOR, INC.)
XXXXXXX & XXXXXX AUTOMOTIVE INTERIORS, INC.
(F/K/A TEXTRON AUTOMOTIVE INTERIORS, INC.)
XXXXXXX & XXXXXX AUTOMOTIVE INTERNATIONAL, INC.
XXXXXXX & XXXXXX AUTOMOTIVE INTERNATIONAL
SERVICES, INC. (F/K/A TEXTRON AUTOMOTIVE
INTERNATIONAL SERVICES, INC.)
XXXXXXX & XXXXXX AUTOMOTIVE MATS, LLC
XXXXXXX & XXXXXX AUTOMOTIVE OVERSEAS
INVESTMENT, INC.
(F/K/A TEXTRON AUTOMOTIVE OVERSEAS
INVESTMENT, INC.)
XXXXXXX & XXXXXX AUTOMOTIVE SERVICES, LLC
XXXXXXX & XXXXXX CANADA DOMESTIC
HOLDING COMPANY
XXXXXXX & XXXXXX CARPET & ACOUSTICS (MI), INC.
XXXXXXX & XXXXXX CARPET & ACOUSTICS (TN), INC.
XXXXXXX & XXXXXX DEVELOPMENT COMPANY
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XXXXXXX & XXXXXX EUROPE, INC.
XXXXXXX & XXXXXX FABRICS, INC. (F/K/A XXXX
AUTOMOTIVE INDUSTRIES, INC.)
XXXXXXX & XXXXXX INTELLIMOLD, INC. (F/K/A M&C
ADVANCED PROCESSES, INC.)
XXXXXXX & XXXXXX INTERIORS, INC.
XXXXXXX & XXXXXX INTERNATIONAL CORPORATION
XXXXXXX & XXXXXX PLASTICS, INC.
XXXXXXX & XXXXXX PROPERTIES, INC.
COMET ACOUSTICS, INC.
CW MANAGEMENT CORPORATION
DURA CONVERTIBLE SYSTEMS, INC.
XXXXXX DEVELOPMENT COMPANY
JPS AUTOMOTIVE, INC.
SOUTHWEST LAMINATES, INC.
WICKES ASSET MANAGEMENT, INC.
WICKES MANUFACTURING COMPANY
By:
------------------------------------------
Name:
Title:
NEW BALTIMORE HOLDINGS, LLC
By: Xxxxxxx & Xxxxxx Products Co., its
sole member
By:
------------------------------------------
Name:
Title:
OWOSSO THERMAL FORMING, LLC
By: Xxxxxxx & Xxxxxx Products Co., its
sole member
By:
------------------------------------------
Name:
Title:
AGENT AND LENDERS:
JPMORGAN CHASE BANK, N.A.
INDIVIDUALLY AND AS AGENT
By:
------------------------------------------
Name:
Title:
9
----------------------,
AS LENDER
By:
------------------------------------------
Name:
Title:
10
SCHEDULE A
Available Cash Accounts
------------------------
Available Cash includes
cash reported on a GAAP
basis in the United States,
Canada, and Mexico in the
bank accounts noted below.
Account Description
-------------------
United States
---------------------
JPM Concentration
323020682
AP Master
323885535
Payroll Master
323885527
Investment Account
Canada
---------------------
Scotia
800021101315
JPM Toronto
4664767101
Lockbox
466501410
Xxxxxxx
000000000
Xxxxxx
---------------------
Cash, in all accounts,
reported on a GAAP basis in
excess of $5,700,000, for
minimum operating
liquidity purposes.
