CONSENT AND AMENDMENT NO. 7 TO CREDIT AGREEMENT
EXHIBIT
10.1
CONSENT
AND AMENDMENT NO. 7 TO CREDIT AGREEMENT
THIS
CONSENT AND AMENDMENT NO.
7 TO CREDIT AGREEMENT AND WAIVER (this
“Amendment”), dated as of March 20, 2006, is made and entered into
on the terms and conditions hereinafter set forth, by and among NN, INC., a
Delaware corporation (“Domestic Borrower”), NN EUROPE ApS, a Denmark
limited liability company (successor by name change to NN Euroball ApS)
(“Euro Borrower”; Domestic Borrower and Euro Borrower are sometimes
hereinafter individually and collectively referred to as the “Borrower”),
all subsidiaries (except for the Euro Borrower) of the Domestic Borrower who
are
now or hereafter become parties to the Credit Agreement, as hereinafter defined
(the “Domestic Guarantors”), the several lenders who are now or hereafter
become parties to the Credit Agreement (the “Lenders”), AMSOUTH BANK, an
Alabama state bank, individually and as administrative agent for the Lenders
(in
such capacity, the “Administrative Agent”), and SUNTRUST BANK, as
documentation agent and euro loan agent for the Lenders (in such capacity,
the
“Euro Loan Agent”).
RECITALS:
1. Pursuant
to that certain Credit Agreement dated as of May 1, 2003, by and among the
Borrower, the Domestic Guarantors, the Administrative Agent, the Lenders and
the
Euro Loan Agent, as amended by that certain Amendment No. 1 to Credit Agreement
dated August 1, 2003, that certain Amendment No. 2 to Credit Agreement dated
March 12, 2004, that certain Amendment No. 3 to Credit Agreement and Waiver
dated March 31, 2004, that certain Amendment No. 4 to Credit Agreement dated
November 12, 2004, that certain Amendment No. 5 to Credit Agreement dated March
30, 2005 and that certain Consent and Amendment No. 6 dated October 3, 2005
(as
the same heretofore may have been and/or hereafter may be further amended,
restated, supplemented, extended, renewed, replaced or otherwise modified from
time to time, the “Credit Agreement”), the Lenders have agreed to make
the Loans available to the Borrower, all as more specifically described in
the
Credit Agreement. Capitalized terms used but not otherwise defined in this
Agreement have the same meanings as in the Credit Agreement.
2. The
parties hereto desire to further amend the Credit Agreement in certain respects,
as more particularly hereinafter set forth.
AGREEMENTS:
NOW,
THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Investments.
Clause (h) of Section 9.4 of the Credit Agreement is hereby amended by deleting
the existing clause (h) and substituting the following therefore
(h) additional
advances to, and other Investments in Non-Guarantor Subsidiaries in an aggregate
outstanding amount not to exceed $6,000,000 at any time;
2. Schedule
7.1. Schedule 7.1 to the Credit
Agreement, Capitalization and Jurisdictions of Incorporation and Foreign
Qualification, is hereby modified and amended to add the following
Non-Guarantor Subsidiary to Schedule 7.1:
|
Entity
|
No.
of Shares Outstanding / Ownership
|
Capitalization
as of 12/01/05
|
Jurisdiction
of Incorporation
|
Jurisdiction
of Foreign Qualification
|
|
NN
Precision Bearing Products C. LTD 4
|
None
|
$
4,000,000
|
China
|
None
|
4.
NN Precision Bearing Products C. LTD is a Non-Guarantor Subsidiary.
3. Consent
to Sale of Real Property and Improvements and Application of
Proceeds. Borrower has indicated its desire to
sell certain outparcel of real property and improvements owned by NN Netherlands
B.V. and located in Xxxxxxxxxx, The Netherlands (the "Excess Property").
Borrower represents and warrants to Lenders that the Excess Property is no
longer used or useful in the business of Borrower and its Subsidiaries. Borrower
expects that the proceeds of the sale of the Excess Property will exceed the
limits for sales of assets set forth in subsection 9.3(d) of the Credit
Agreement and further has requested that the net proceeds of the sale of the
Excess Property be applied to the Loans in a manner other than as provided
by
the provisions of subsection 3.1.3(b) of the Credit Agreement. Lenders
hereby consent to the sale of the Excess Property in the Fiscal Year ending
December 31, 2005, provided, however, the aggregate Dollar or
Dollar Equivalent amount, as applicable, of all sales of assets of the type
described subsection 9.3(d) in the Fiscal Year ending December 31, 2005
(including the sale of the Excess Property) shall not exceed $4,250,000, and
all
such sales shall be applied against the $10,000,000 limit in subsection
9.3(d) for sales of assets over the term of the Facilities.
4. Effectiveness.
This Amendment shall become effective when the Administrative Agent
shall have received counterparts or signature pages executed by the Borrower,
the Domestic Guarantors, the Administrative Agent and the Lenders.
5. Representations
and Warranties of the Borrower and the Guarantors.
As an inducement to the Administrative Agent, the Euro Loan Agent and the
Lenders to enter into this Amendment, the Borrower and the Domestic Guarantors
hereby represent and warrant to the Administrative Agent, the Euro Loan Agent
and the Lenders that, on and as of the date hereof:
(a) the
representations and warranties contained in the Credit Agreement and the other
Loan Documents are true and correct, except for (1) representations and
warranties that expressly relate to an earlier date, which remain true and
correct as of said earlier date, and (2) representations and warranties
that have become untrue or incorrect solely because of changes permitted by
the
terms of the Credit Agreement and the other Loan Documents, and
(b) no
Default or Event of Default has occurred and is continuing.
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6. Effect
of Amendment; Continuing Effectiveness of Credit Agreement and Loan
Documents.
(a) Neither
this Amendment nor any other indulgences that may have been granted to the
Borrower or any of the Domestic Guarantors by the Administrative Agent, the
Euro
Loan Agent or any Lender shall constitute a course of dealing or otherwise
obligate the Administrative Agent, the Euro Loan Agent or any Lender to modify,
expand or extend the agreements contained herein, to agree to any other
amendments to the Credit Agreement or to grant any consent to, waiver of or
indulgence with respect to any other noncompliance with any provision of the
Loan Documents.
(b) This
Amendment shall constitute a Loan Document for all purposes of the Credit
Agreement and the other Loan Documents. Any noncompliance by the Borrower or
any
Domestic Guarantor with any of the covenants, terms, conditions or provisions
of
this Amendment shall constitute an Event of Default. Except to the extent
amended hereby, the Credit Agreement, the other Loan Documents and all terms,
conditions and provisions thereof shall continue in full force and effect in
all
respects.
7. Counterparts.
This Amendment may be executed in multiple counterparts or copies, each of
which
shall be deemed an original hereof for all purposes. One or more counterparts
or
copies of this Amendment may be executed by one or more of the parties hereto,
and some different counterparts or copies executed by one or more of the other
parties. Each counterpart or copy hereof executed by any party hereto shall
be
binding upon the party executing same even though other parties may execute
one
or more different counterparts or copies, and all counterparts or copies hereof
so executed shall constitute but one and the same agreement. Each party hereto,
by execution of one or more counterparts or copies hereof, expressly authorizes
and directs any other party hereto to detach the signature pages and any
corresponding acknowledgment, attestation, witness or similar pages relating
thereto from any such counterpart or copy hereof executed by the authorizing
party and affix same to one or more other identical counterparts or copies
hereof so that upon execution of multiple counterparts or copies hereof by
all
parties hereto, there shall be one or more counterparts or copies hereof to
which is(are) attached signature pages containing signatures of all parties
hereto and any corresponding acknowledgment, attestation, witness or similar
pages relating thereto.
8. Miscellaneous.
(a) This
Amendment shall be governed by, construed and enforced in accordance with the
laws of the State of Tennessee, without reference to the conflicts or choice
of
law principles thereof.
(b) The
headings in this Amendment and the usage herein of defined terms are for
convenience of reference only, and shall not be construed as amplifying,
limiting or otherwise affecting the substantive provisions hereof.
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(c) Any
reference herein to any instrument, document or agreement, by whatever
terminology used, shall be deemed to include any and all amendments,
modifications, supplements, extensions, renewals, substitutions and/or
replacements thereof as the context may require.
(d) When
used herein, (1) the singular shall include the plural, and vice versa, and
the
use of the masculine, feminine or neuter gender shall include all other genders,
as appropriate, (2) “include”, “includes” and “including” shall be deemed to be
followed by “without limitation” regardless of whether such words or words of
like import in fact follow same, and (3) unless the context clearly indicates
otherwise, the disjunctive “or” shall include the conjunctive
“and.”
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IN
WITNESS WHEREOF,
the parties hereto have caused this Amendment to be duly executed and delivered
as of the date first written above.
| BORROWER: |
NN,
INC.,
a
Delaware corporation
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|
| |
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| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |
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Name: Xxxxxxx X. Xxxxx, Xx. |
||
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Title:
Secretary, Treasurer and Chief Administrative
Officer
|
||
|
NN
EUROPE
ApS, a Denmark limited liability
company
(successor
by name change to NN Euroball ApS
|
||
| |
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| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |
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Name: Xxxxxxx X. Xxxxx, Xx. |
||
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Title:
Secretary, Treasurer and Chief Administrative
Officer
|
||
| DOMESTIC GUARANTORS: |
INDUSTRIAL
MOLDING GP, LLC,
a
Delaware limited liability company
|
|
| |
|
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| By: | /s/ Xxxxxxxx Xxxx | |
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Name: Xxxxxxxx Xxxx |
||
| Title: Manager | ||
|
INDUSTRIAL
MOLDING LP, LLC,
a Tennessee limited liability company
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||
| |
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| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |
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Name: Xxxxxxx X. Xxxxx, Xx. |
||
| Title: Manager | ||
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| INDUSTRIAL
MOLDING LP, LLC a Tennessee limited liability company |
||
| |
By:
|
Industrial
Molding GP, LLC, a Delaware limited
liability company, its general partner
|
| By: | /s/ Xxxxxxxx Xxxx | |
|
Name: Xxxxxxxx Xxxx |
||
| Title: Manager | ||
| DELTA
RUBBER COMPANY,
a Connecticut corporation
|
||
| |
|
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| By: | /s/ Xxxx X. Xxxxxxx | |
|
Name: Xxxx Xxxxxxx |
||
| Title: Vice President | ||
| KUGELFERTIGUNG
ELTMANN GmbH,
a
German Company
|
||
| |
|
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| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |
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Name: Xxxxxxx X. Xxxxx, Xx. |
||
| Title: Director | ||
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| By: | /s/ Xxxxxxxx Xxxxxx | |
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Name: Xxxxxxxx Xxxxxx |
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| Title: Director | ||
|
NN
NETHERLANDS B.V.,
a Dutch company
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||
| |
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| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |
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Name: Xxxxxxx X. Xxxxx, Xx. |
||
| Title: Director | ||
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|
NN
EUROBALL IRELAND LIMITED,
an
Irish company
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| |
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| By: | /s/ Xxxxxxxx Xxxx | |
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Name: Xxxxxxxx Xxxx |
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| Title: Director | ||
|
NN
HOLDINGS, B.V.,
a
Dutch company
|
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| |
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| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |
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Name: Xxxxxxx X. Xxxxx, Xx. |
||
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Title:
Director of NN Netherlands B.V., the Director
of NN
Holdings B.V.
|
||
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NN
SLOVAKIA, s.r.o.
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| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |
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Name: Xxxxxxx X. Xxxxx, Xx. |
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| Title: Director | ||
| LENDERS: | AMSOUTH BANK, as a Lender | |
| |
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| By: | /s/ Xxxxxx X. Page | |
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Name: Xxxxxx X. Page |
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| Title: V.P. | ||
| FIRST TENNESSEE BANK NATIONAL ASSOCIATION, as a Lender | ||
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| By: | /s/ Xxxxxxx X. Xxxxxx | |
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Name: Xxxxxxx X. Xxxxxx |
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| Title: Executive Vice President | ||
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|
REGIONS
BANK (successor to UNION PLANTERS
BANK,
NATIONAL ASSOCIATION), as a Lender
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| By: | /s/ Xxxxx X. Xxxxxxxx | |
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| Title: Vice President | ||
| INTEGRA BANK, N.A., as a Lender | ||
| |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |
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Name: Xxxxxxx X. Xxxxxxx |
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| Title: Senior Vice President | ||
| SUNTRUST BANK, as a Lender and Euro Loan Agent | ||
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| By: | /s/ Xxxxxx X. Xxxxxxxx | |
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Name: Xxxxxx X. Xxxxxxxx |
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| Title: Vice President | ||
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