Exhibit 99.1
AMENDMENT NO. 1 dated as of April 7, 2005 (this
"Amendment"), to the Amended and Restated Credit Agreement
dated as of September 1, 2004 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"),
among ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PRODUCTS CO., a Delaware corporation
(the "Borrower"), ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION, a Delaware
corporation ("Holdings"), the financial institutions from time
to time party thereto (the "Lenders"), CREDIT SUISSE FIRST
BOSTON, as syndication agent, DEUTSCHE BANK SECURITIES INC.,
as documentation agent, and JPMORGAN CHASE BANK, N.A.
(formerly known as JPMorgan Chase Bank), as administrative
agent (in such capacity, the "Administrative Agent").
A. The Borrower has requested that the Required Lenders agree to amend
certain provisions of the Credit Agreement as set forth herein.
B. The Required Lenders are willing so to amend such provisions of the
Credit Agreement pursuant to the terms and subject to the conditions set forth
herein.
C. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned thereto in the Credit Agreement.
SECTION 1. Amendments to Section 1.01. Section 1.01 of the Credit
Agreement is hereby amended by deleting the definitions of the following defined
terms contained therein in their respective entireties and replacing in lieu
thereof the following definitions:
"Applicable Level" shall mean at any time the highest of ▇▇▇▇▇ ▇,
▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇ and Level V in effect determined in accordance
with Schedule 1.01(A).
"Applicable Margin" shall mean (i) with respect to Revolving
Loans and Swingline Loans, the applicable margin set forth on Schedule 1.01(A)
opposite the Applicable Level, in each case as of the last day of the Holdings'
fiscal quarter most recently ended as of such date; (ii) with respect to Tranche
B-1 Term Loans (a) which are Eurodollar Loans, 4.50% and (b) which are ABR
Loans, 3.50%; (iii) with respect to Supplemental Revolving Loans, (a) which are
Eurodollar Loans, 4.50% and (b) which are ABR Loans, 3.50 % and (iv) with
respect to Incremental Term Loans that are not Tranche B-1 Term Loans, the
Incremental Margin to be added to Incremental Term Loans that are Eurodollar
Loans or ABR Loans, as the case may be, as agreed by Borrower and the applicable
Incremental Lenders.
SECTION 2. Amendment to Section 6.01. Section 6.01 is hereby
amended by inserting in clause (i) of paragraph (a) thereof, immediately after
the words "not to exceed $60,000,000", the words ", provided Guarantees of such
Indebtedness by the Borrower for the benefit of any Lender shall not exceed
$25,000,000 in the aggregate".
SECTION 3. Amendment to Section 6.14. Section 6.14 is hereby
amended by deleting the table thereof in its entirety and replacing it with the
following table:
Quarter Ending: Ratio:
March 31, 2005 1.80:1.00
June 30, 2005 1.80:1.00
September 30, 2005 1.80:1.00
December 31, 2005 1.80:1.00
March 31, 2006 & thereafter 2.25:1.00
SECTION 5. Amendment to Section 6.15. Section 6.15 is hereby
amended by deleting the table thereof in its entirety and replacing it with the
following table:
Quarter Ending: Ratio:
March 31, 2005 5.60:1.00
June 30, 2005 5.50:1.00
September 30, 2005 5:30:1.00
December 31, 2005 5:00:1.00
March 31, 2006 - December 31, 2007 4.50:1.00
March 31, 2008 & thereafter 4.25:1.00
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SECTION 5. Amendment to Schedule 1.01A. Schedule 1.01A is hereby
amended by deleting the table thereof in its entirety and replacing it with the
following table:
Revolving Loans and Swingline Loans
--------------------------------------------------------
Eurodollar Rate Loan Margin ABR Loan Margin
--------------------------------------------------------
Leverage Ratio greater than 4.00:1.00 3.50% 2.50%
("Level I")
Leverage Ratio less than or equal to 3.00% 2.00%
4.00:1.00 and greater than 3.00:1.00
("Level II")
Leverage Ratio less than or equal to 2.75% 1.75%
3.00:1.00 and greater than 2.50:1.00
("Level III")
Leverage Ratio less than or equal to 2.50% 1.50%
2.50:1.00 and greater than 2.25:1.00
("Level IV")
Leverage Ratio less than or equal to 2.25% 1.25%
2.25:1.00 ("Level V")
SECTION 6. Representations and Warranties. The Borrower
represents and warrants to the Administrative Agent and to each of the Lenders
that:
(a) This Amendment has been duly authorized, executed and
delivered by it and constitutes a legal, valid and binding obligation of each
Loan Party party hereto, enforceable against such Loan Party in accordance with
its terms.
(b) After giving effect to this Amendment, the representations
and warranties set forth in Article III of the
Credit Agreement are true and
correct in all material respects on and as of the date hereof with the same
effect as if made on and as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing.
SECTION 7. Amendment Fee. In consideration of the agreements of
the Required Lenders contained in this Amendment, the Borrower agrees to pay to
the Administrative Agent, for the account of each Lender that delivers an
executed counterpart of this Amendment prior to 12:00 noon,
New York City time,
on April 7, 2005, an amendment fee (the "Amendment Fee") equal to 12.5 basis
points on the aggregate amount of the Commitments and outstanding Term Loans of
such Lender.
SECTION 8. Conditions to Effectiveness. The Amendment shall
become effective as of April 7, 2005, when (a) the Administrative Agent shall
have received (i) counterparts of this Amendment that, when taken together, bear
the signatures of Holdings, the Borrower and the Required Lenders and (ii) the
Amendment Fee, (b) the representations and warranties set forth in Section 6
hereof are true and correct (as set forth on an officer's certificate delivered
to the Administrative Agent) and (c) all fees and expenses required to be paid
or reimbursed by the Borrower pursuant hereto or to the
Credit Agreement or
otherwise, including all invoiced fees and expenses of counsel to the
Administrative Agent shall have been paid or reimbursed, on or prior to
effectiveness as applicable.
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SECTION 9.
Credit Agreement. Except as specifically provided
hereby, the
Credit Agreement and the other Loan Documents shall continue in full
force and effect in accordance with the provisions thereof as in existence on
the date hereof. After the date hereof, any reference to any Loan Document shall
mean such Loan Document as modified hereby. This Amendment shall be a Loan
Document for all purposes. Except as expressly set forth herein, this Amendment
shall not by implication or otherwise limit, impair, constitute a waiver of, or
otherwise affect the rights and remedies of the Lenders under the Credit
Agreement or any other Loan Agreement, and shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Loan Document.
SECTION 10. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 11. Counterparts. This Amendment may be executed in two
or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one agreement. Delivery of an
executed signature page to this Amendment by facsimile transmission shall be
effective as delivery of a manually signed counterpart of this Amendment.
SECTION 12. Expenses. The Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the fees, charges and disbursements of Cravath, Swaine &
▇▇▇▇▇ LLP, counsel for the Administrative Agent.
SECTION 13. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first written above.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PRODUCTS CO.,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President & Treasurer
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President & Treasurer
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent
and Collateral Agent,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
