Fifth Amendment to Second Amended and Restated Credit Agreement
Exhibit 99.1
Fifth Amendment to Second Amended and Restated Credit Agreement
This Fifth Amendment to Second Amended and Restated Credit Agreement (herein, the “Amendment”)
is made as of May 12, 2006, by and among ▇▇▇▇▇▇ Industrial Group, Inc., a Georgia corporation (the
“Borrower”), the Lenders party to the Credit Agreement hereinafter identified and defined, and
▇▇▇▇▇▇ ▇.▇., as Agent for the Lenders (in such capacity, the “Agent”).
Recitals
A. The Lenders currently extend credit to the Borrower on the terms and conditions set forth
in that certain Second Amended and Restated Credit Agreement dated as of March 26, 2004, as
amended, by and among the Borrower, the Guarantors, the Lenders, and the Agent (the “Credit
Agreement”). All capitalized terms used herein without definition shall have the same meanings
herein as such terms have in the Credit Agreement.
B. The Borrower has requested that the Lenders increase the aggregate Revolving Credit
Commitments from $18,000,000 to $22,000,000, amend the Fixed Charge Coverage Ratio for the fiscal
quarters ending March 31, 2006, and June 30, 2006, and amend the Capital Expenditures limitation,
and the Lenders are willing to do so on the terms and conditions set forth in this Amendment.
Now, Therefore, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Amendments.
Subject to the satisfaction of the conditions precedent set forth in Section 2 below, the
Credit Agreement shall be and hereby is amended as follows:
1.1. The definition of “Revolving Credit Commitments” appearing in Section 5.1 of the Credit
Agreement (Definitions) is hereby amended and restated to read in its entirety as follows:
“Revolving Credit Commitment” means, as to any Lender, the
obligation of such Lender to make Revolving Loans and to participate
in Swing Loans and Letters of Credit issued for the account of the
Borrower hereunder in an aggregate principal or face amount at any
one time outstanding not to exceed the amount set forth opposite
such Lender’s name on Schedule 1 attached hereto and made a part
hereof, as the same may be reduced or modified at any time or from
time to time pursuant to the terms hereof. The Borrower and the
Lenders acknowledge and agree that the Revolving Credit Commitments
of the Lenders aggregate $22,000,000 as of May 12, 2006.
1.2. Section 8.9 of the Credit Agreement (Fixed Charge Coverage Ratio) is hereby amended and
restated to read in its entirety as follows:
Section 8.9. Fixed Charge Coverage Ratio. As of the last day of each fiscal
quarter of the Borrower ending on the dates set forth below, the Borrower shall not
permit the Fixed Charge Coverage Ratio to be less than:
| Fixed Charge | ||||
| Coverage Ratio | ||||
| Shall Not Be | ||||
| Fiscal Quarter Ending Dates | Less Than | |||
03/31/06 |
0.90 to 1.0 | |||
06/30/06 |
0.95 to 1.0 | |||
09/30/06 and each fiscal quarter ending thereafter |
1.15 to 1.0 | |||
1.3. Section 8.10 of the Credit Agreement (Capital Expenditures) is hereby amended and
restated to read in its entirety as follows:
Section 8.10 Capital Expenditures. The Borrower shall not, nor
shall it permit any Subsidiary to, expend or (without duplication)
become obligated to expend Capital Expenditures aggregating for the
Borrower and its Subsidiaries (taken together) in excess of (a)
$9,000,000 in the aggregate for the four (4) fiscal quarters ending
June 30, 2006, (b) $8,500,000 in the aggregate for the four (4)
fiscal quarters ending September 30, 2006, (c) $7,000,000 in the
aggregate for the four (4) fiscal quarters ending December 31, 2006,
and (d) $7,000,000 in the aggregate for the fiscal year ending
December 31, 2007, and a like amount in each fiscal year ending
thereafter).
1.4. The Credit Agreement shall be amended by adding a Schedule 1 at the end thereof which
shall read as set forth on Schedule 1 attached hereto and made a part thereof.
Section 2. Conditions.
2.1. Conditions Precedent. The effectiveness of this Amendment is subject to the satisfaction
of all of the following conditions precedent:
(a) The Borrower, the Lenders, and the Guarantors shall have executed and delivered
this Amendment.
(b) The Borrower shall have executed and delivered replacement Revolving Credit Notes
to the Lenders, each in the aggregate amount of the relevant Lender’s
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Revolving Credit
Commitment after giving effect to this Amendment, in the forms attached hereto as Exhibit
▇-▇, ▇-▇, and A-3.
(c) The Borrower and the relevant Guarantors shall have executed and delivered
supplements to the existing Mortgages in form and substance acceptable to the Agent.
(d) The Agent shall have received (a) a copy of an executed amendment to the Note and
Warrant Purchase Agreement and (b) an executed counterpart of the Second Amendment to
Subordination and Intercreditor Agreement, each in form and substance acceptable to the
Agent.
(e) The Borrower shall have paid to the Agent an amendment fee of $32,500.00, which
shall be distributed to the Lenders as follows (a) $7,500 for each Lender (i.e., $22,500 in
total) and (b) 0.25% multiplied by the increase in the relevant Lender’s Revolving Credit
Commitment (i.e., $10,000 in total).
(f) Legal matters incident to the execution and delivery of this Amendment shall be
satisfactory to the Agent and its counsel.
2.2. Conditions Subsequent. The Borrower hereby agrees to deliver to the Agent (at the
Borrower’s expense), each in form and substance satisfactory to the Agent and its counsel:
(a) Within ten (10) Business Days of the date hereof, resolutions for the Borrower and
each Guarantor authorizing the execution, delivery, and performance of its obligations under
the Loan Documents as amended hereby, certified to by its corporate secretary (or such other
officer of such person acceptable to the Agent), together with current good standing
certificates for the Borrower and each Guarantor certified to by the Secretary of the State
of the jurisdiction in which it is organized.
(b) Within forty-five (45) days of the date hereof, date-down title policy endorsements
to the existing mortgagee title insurance policies insuring the validity and priority of the
Mortgages as modified by the supplements referred to in Section 2.1(c) above through the
recording date thereof and, unless otherwise acceptable to the Agent, showing no new
exceptions to title or coverage.
Section 3. Representations.
In order to induce the Lenders to execute and deliver this Amendment, the Borrower hereby
represents to the Lenders that as of the date hereof, and after giving effect to this Amendment,
(a) the representations and warranties set forth in Section 6 of the Credit Agreement are and shall
be and remain true and correct in all material respects (except that for purposes of this paragraph
the representations contained in Section 6.5 shall be deemed to refer to the most recent financial
statements of the Borrower delivered to the Lenders) and (b) the Borrower is in full compliance
with all of the terms and conditions of the Credit Agreement after giving effect
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to this Amendment
and no Default or Event of Default has occurred and is continuing under the Credit Agreement or
shall result after giving effect to this Amendment.
Section 4. Miscellaneous.
4.1. The Borrower and certain of its Subsidiaries have heretofore executed and delivered to
the Agent and the Lenders certain of the Collateral Documents. The Borrower hereby acknowledges
and agrees that, notwithstanding the execution and delivery of this Amendment, the Collateral
Documents remain in full force and effect and the rights and remedies of the Agent and the Lenders
thereunder, the obligations of the Borrower and its Subsidiaries thereunder, and the liens and
security interests created and provided for thereunder remain in full force and effect and shall
not be affected, impaired, or discharged hereby. Nothing herein contained shall in any manner
affect or impair the priority of the liens and security interests created and provided for by the
Collateral Documents as to the indebtedness which would be secured thereby prior to giving effect
to this Amendment.
4.2. Except as specifically amended herein or waived hereby, the Credit Agreement shall
continue in full force and effect in accordance with its original terms. Reference to this
specific Amendment need not be made in the Credit Agreement, the Notes, or any other instrument or
document executed in connection therewith, or in any certificate, letter or communication issued or
made pursuant to or with respect to the Credit Agreement, any reference in any of such items to the
Credit Agreement being sufficient to refer to the Credit Agreement as amended hereby.
4.3. The Borrower agrees to pay all reasonable out-of-pocket costs and expenses incurred by
the Agent in connection with the preparation, execution and delivery of this Amendment and the
documents and transactions contemplated hereby, including the reasonable fees and expenses of
counsel for the Agent with respect to the foregoing.
4.4. This Amendment may be executed in any number of counterparts, and by the different
parties on different counterpart signature pages, all of which taken together shall constitute one
and the same agreement. Any of the parties hereto may execute this Amendment by signing any such
counterpart and each of such counterparts shall for all purposes be deemed to be an original.
Delivery of executed counterparts of this Amendment by telecopy shall be effective as an original.
This Amendment shall be governed by the internal laws of the State of Illinois.
[Signature Pages to Follow]
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This Fifth Amendment to Second Amended and Restated Credit Agreement is entered into by the
parties hereto as of the date and year first above written.
| ▇▇▇▇▇▇ Industrial Group, Inc. | ||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Name | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title | VP Finance | |||
| Accepted and agreed to: | ||||
| ▇▇▇▇▇▇ ▇.▇. | ||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| Name | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| Title | Vice President | |||
| National City Bank of the Midwest | ||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title | Vice President | |||
| JPMorgan Chase Bank, N.A. | ||||
| By | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title | Banking Officer | |||
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Guarantors’ Acknowledgement and Consent
Each of the undersigned hereby acknowledges and agrees that it is a Guarantor under the terms
of Section 11 of the Credit Agreement and, as such, has executed and delivered certain Collateral
Documents pursuant to the Credit Agreement. The undersigned hereby consent to the Fifth Amendment
to Second Amended and Restated Credit Agreement as set forth above and agree to the terms thereof,
and the undersigned hereby confirm that their guaranties and the Collateral Documents executed by
them, and all of the obligations of the undersigned thereunder, remain in full force and effect.
The undersigned further agree that the consent of the undersigned to any further amendments to the
Credit Agreement shall not be required as a result of this consent having been obtained. The
undersigned acknowledge the Lenders are relying on this acknowledgement and consent in entering
into the Fifth Amendment to Second Amended and Restated Credit Agreement with the Borrower.
| ▇▇▇▇▇▇ Metalcraft Co. | ||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title | Secretary | |||
| ▇▇▇▇▇▇ Metalcraft Co. of North Carolina | ||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title | Secretary | |||
| ▇▇▇▇▇▇ Metalcraft Co. of South Carolina | ||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title | Secretary | |||
| Mid Central Plastics, Inc. | ||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title | Secretary | |||
| B&W Metal Fabricators, Inc. | ||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title | Secretary | |||
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