EXHIBIT 10.1
AMENDMENT AND CONSENT NO. 1
DATED AS OF JUNE 30, 1998
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MARCH 16, 1998
THIS AMENDMENT AND CONSENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
("AMENDMENT") is made as of this 30th day of June, 1998 by and among BINKS XXXXX
CORPORATION, a Delaware corporation (the "BORROWER"), the financial institutions
listed on the signature pages hereof (the "LENDERS"), and THE FIRST NATIONAL
BANK OF CHICAGO, in its individual capacity as a Lender and in its capacity as
Agent ("AGENT"), under that certain Amended and Restated Credit Agreement dated
as of March 16, 1998 by and among the Borrower, the Lenders and the Agent (as
the same may be amended, restated, supplemented or modified from time to time,
the "CREDIT AGREEMENT").
WITNESSETH
WHEREAS, the Borrower, the Lenders and the Agent are parties to the Credit
Agreement;
WHEREAS, the Borrower has requested that the Agent and the Lenders enter
into certain amendments to the Credit Agreement;
WHEREAS, the Lenders and the Agent have agreed to enter into this Amendment
on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises set forth above, the terms
and conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Lenders and the Agent have agreed to the amendments with respect to the Credit
Agreement as set forth below. Capitalized terms used in this Amendment which
are not otherwise defined herein, shall have the meanings given such terms in
the Credit Agreement.
1. AMENDMENT TO CREDIT AGREEMENT. Effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth in SECTION 3
below, on and after the date hereof, the parties hereto agree that the Credit
Agreement is amended as follows:
a. SECTION 1.1 OF THE CREDIT AGREEMENT IS AMENDED TO ADD THE FOLLOWING
DEFINITIONS IN THE APPLICABLE ALPHABETICAL LOCATION:
"XXXX ENTITIES" MEANS BEHR SYSTEMS, INC. AND XXXX SYSTEMS, GMBH
"XXXX PATENTS" MEANS U.S. PATENT NO. 4,405,086 ENTITLED "DEVICE FOR
ATOMIZING LIQUID COLOR" AND THE RELATED FOREIGN PATENTS.
"XXXX LITIGATION" MEANS (A) THAT CERTAIN PATENT INFRINGEMENT ACTION
BROUGHT BY BEHR AGAINST SEI AND XXXXX, X.X. IN THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF MICHIGAN, CIVIL ACTION NO. 97-72744; (B)
THE SUIT FILED IN GERMANY BY XXXX SYSTEMS, GMBH AGAINST THE BORROWER AND/OR
ANY OF ITS SUBSIDIARIES OR AFFILIATES ; AND (C) ANY OTHER PENDING ACTIONS
OR THREATENED ACTIONS BY ANY XXXX ENTITY AGAINST THE BORROWER OR ANY OF ITS
SUBSIDIARIES OR AFFILIATES RELATING TO OR ARISING OUT OF THE XXXX PATENTS.
"XXXX SETTLEMENT AGREEMENT" MEANS A PATENT LICENSE AND SETTLEMENT
AGREEMENT AMONG THE BORROWER, XXXXX, X.X., SEI AND THE XXXX ENTITIES ON
SUBSTANTIALLY THE SAME TERMS AND CONDITIONS AS THE DRAFT DATED JUNE 25,
1998 DISTRIBUTED TO THE LENDERS BY COVER LETTER FROM THE BORROWER'S COUNSEL
ON JUNE 26, 1998; PROVIDED THE PAYMENT DATE FOR THE AMOUNTS PAYABLE UNDER
SECTION 3.2 THEREOF MAY BE CHANGED TO DECEMBER 31, 1998.
b. SECTION 1.1 OF THE CREDIT AGREEMENT IS FURTHER AMENDED TO DELETE THE
DEFINED TERM "RESTRICTED PAYMENT" THEREFROM IN ITS ENTIRETY AND TO
SUBSTITUTE THE FOLLOWING THEREFOR:
"RESTRICTED PAYMENT" MEANS (I) ANY DIVIDEND OR OTHER DISTRIBUTION,
DIRECT OR INDIRECT, ON ACCOUNT OF ANY EQUITY INTERESTS OF THE BORROWER NOW
OR HEREAFTER OUTSTANDING, EXCEPT A DIVIDEND PAYABLE SOLELY IN THE
BORROWER'S CAPITAL STOCK (OTHER THAN DISQUALIFIED STOCK) OR IN OPTIONS,
WARRANTS OR OTHER RIGHTS TO PURCHASE SUCH CAPITAL STOCK, (II) ANY
REDEMPTION, RETIREMENT, PURCHASE OR OTHER ACQUISITION FOR VALUE, DIRECT OR
INDIRECT, OF ANY EQUITY INTERESTS OF THE BORROWER OR ANY OF ITS
SUBSIDIARIES NOW OR HEREAFTER OUTSTANDING, OTHER THAN IN EXCHANGE FOR, OR
OUT OF THE PROCEEDS OF, THE SUBSTANTIALLY CONCURRENT SALE (OTHER THAN TO A
SUBSIDIARY OF THE BORROWER) OF OTHER EQUITY INTERESTS OF THE BORROWER
(OTHER THAN DISQUALIFIED STOCK), (III) ANY REDEMPTION, PURCHASE,
RETIREMENT, DEFEASANCE, PREPAYMENT OR OTHER ACQUISITION FOR VALUE, DIRECT
OR INDIRECT, OF ANY INDEBTEDNESS OTHER THAN THE OBLIGATIONS, (IV) ANY
PAYMENT OF A CLAIM FOR THE RESCISSION OF THE PURCHASE OR SALE OF, OR FOR
MATERIAL DAMAGES ARISING FROM THE PURCHASE OR SALE OF, ANY INDEBTEDNESS
(OTHER THAN THE OBLIGATIONS) OR ANY EQUITY INTERESTS OF THE BORROWER OR ANY
OF THE BORROWER'S SUBSIDIARIES, OR OF A CLAIM FOR REIMBURSEMENT,
INDEMNIFICATION OR CONTRIBUTION ARISING OUT OF OR RELATED TO ANY SUCH CLAIM
FOR DAMAGES OR RESCISSION AND (V) ANY PAYMENT TO ANY PERSON IN CONNECTION
WITH THE DISCLOSED DISPUTES (OTHER THAN THE PAYMENT OF ORDINARY COURSE
LITIGATION MANAGEMENT COSTS TO PERSONS NOT A PARTY TO THE LITIGATION OR
DISPUTE, INCLUDING, WITHOUT LIMITATION, COURT REPORTER SERVICES, DOCUMENT
MANAGEMENT SERVICES AND ATTORNEYS' AND PARALEGALS' FEES AND EXPENSES).
c. SECTION 7.3(A)(x) OF THE CREDIT AGREEMENT IS AMENDED TO DELETE THE "AND"
IMMEDIATELY PRIOR TO CLAUSE (b) THEREOF AND SUBSTITUTE IT WITH a ";" AND
TO ADD THE FOLLOWING IMMEDIATELY AFTER CLAUSE (b) THEREOF:
; AND (c) UNSECURED INDEBTEDNESS IN AN AMOUNT NOT TO EXCEED THE AMOUNT
SET FORTH IN SECTION 3.2 OF THE XXXX SETTLEMENT AGREEMENT PROVIDED
SUCH INDEBTEDNESS IS INCURRED IN CONNECTION WITH A FULL AND COMPLETE
SETTLEMENT OF THE XXXX LITIGATION ON THE TERMS SET FORTH IN THE XXXX
SETTLEMENT AGREEMENT AND PROVIDED FURTHER SUCH INDEBTEDNESS
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SHALL REDUCE THE AMOUNT AVAILABLE UNDER SECTION 1(c) OF THE DISCLOSURE
LETTER FOR AGREEMENTS IN CONNECTION WITH ANY OF THE OTHER DISCLOSED
DISPUTES BY THE AMOUNT OF SUCH INDEBTEDNESS;
d. SECTION 7.4 OF THE CREDIT AGREEMENT IS AMENDED TO ADD THE FOLLOWING AT THE
END THEREOF:
(E) Notwithstanding anything herein to the contrary, each of the
financial covenants set forth in clauses (B) through (D) above shall
be calculated without taking into account the non-cash charge taken by
the Borrower in connection with the Company's execution of the Xxxx
Settlement Agreement.
2. CONSENT. Notwithstanding the terms of SECTION 1(c) of the Disclosure
Letter, the Borrower, Xxxxx, X.X. and SEI shall be permitted to incur the
unsecured settlement obligations set forth in SECTION 3.2 of the Xxxx Settlement
Agreement provided the amount of those obligations shall count against the
dollar basket set forth in such SECTION 1(c).
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall not become
effective unless on or before July 2, 1998 (a) this Amendment shall have been
executed by the Borrower, the Agent and the Required Lenders on or before
July 2, 1998 and (b) the Borrower shall have entered into a parallel amendment
to the Master Note Agreement on terms and conditions substantially identical
to this Amendment.
4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower hereby
represents and warrants as follows:
(a) This Amendment and the Credit Agreement as previously executed and as
amended hereby, constitute legal, valid and binding obligations of the Borrower
and are enforceable against the Borrower in accordance with their terms.
(b) Upon the effectiveness of this Amendment, the Borrower hereby
reaffirms all covenants, representations and warranties made in the Credit
Agreement and the other Loan Documents to the extent the same are not amended or
waived hereby, agrees that all such covenants, representations and warranties
shall be deemed to have been remade as of the effective date of this Amendment.
(c) No Default or Unmatured Default has occurred under the Credit
Agreement.
5. REFERENCE TO THE EFFECT ON THE CREDIT AGREEMENT.
(a) Upon the effectiveness of SECTION 1 hereof, on and after the date
hereof, each reference in the Credit Agreement to "this Credit Agreement,"
"hereunder," "hereof," "herein" or words of like import shall mean and be a
reference to the Credit Agreement as amended hereby.
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(b) Except as specifically modified or waived above, the Credit Agreement,
the Disclosure Letter and all other documents, instruments and agreements
executed and/or delivered in connection therewith, shall remain in full force
and effect, and are hereby ratified and confirmed.
6. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of Illinois.
7. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
8. COUNTERPARTS. This Amendment may be executed by one or more of the
parties to the Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A facsimile signature page hereto sent to the Agent or the Agent's
counsel shall be effective as a counterpart signature provided each party agrees
to deliver originals to the Agent thereof.
9. NO STRICT CONSTRUCTION. The parties hereto have participated jointly
in the negotiation and drafting of this Amendment and the Credit Agreement. In
the event an ambiguity or question of intent or interpretation arises, this
Amendment and the Credit Agreement as hereby amended shall be construed as if
drafted jointly by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Amendment or the Credit Agreement.
[Remainder of this Page Intentionally Blank.]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first above written.
BINKS XXXXX CORPORATION
By /S/ XXXXXXX X. XXXXXXXX
-----------------------
Title: Vice President
and Chief Financial Officer
THE FIRST NATIONAL BANK OF CHICAGO, AS THE
AGENT AND AS A LENDER
By /s/ Xxxxx X. Xxxxxxxx
---------------------
Title: First Vice President
LASALLE NATIONAL BANK, AS A LENDER
By /s/ Xxx XxXxxxx
---------------
Title: Vice President
COMERICA BANK, AS A LENDER
By /s/ Xxxxxxx X. Xxxxx
--------------------
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK, AS A LENDER
By /s/ Xxxxxx X. Xxxxxxx
Title: Vice President
Signature Page to Binks Xxxxx Corporation
Amendment and Consent No. 1
