Exhibit 10.3
FIRST EXTENSION AGREEMENT
This FIRST EXTENSION AGREEMENT (this "Agreement") is entered into as of
March 28, 2003, and effective as of March 1, 2003, by and among Xxxxxxxx
Corporation, a Missouri corporation ("Borrower"), LaSalle Bank National
Association ("LaSalle"), as Administrative Agent ("Administrative Agent"), and
LaSalle and the other lenders on the signature page hereto (the "Lenders").
RECITALS:
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A. Borrower, Administrative Agent and Lenders are party to that certain
Loan Agreement dated as of May 30, 2002, (the "Original Loan
Agreement").
B. Borrower, Administrative Agent and Lenders are party to that certain
First Amendment to Loan Agreement dated January 24, 2003, amending the
Original Loan Agreement (the "First Amendment to Loan Agreement").
C. The Original Loan Agreement, as amended by the First Amendment to Loan
Agreement, provides, in Section 6.1.3, that Borrower, Administrative
Agent and Lenders may agree, in the form of a written extension
agreement, to extend the Revolving Loan Maturity Date by one (1) year.
D. Having been notified of Borrower's wish to so extend the Revolving Loan
Maturity Date, and being willing to agree to such extension,
Administrative Agent and Lenders do hereby affirmatively agree with
Borrower and between them to do so in accordance with the provisions
set forth herein.
AGREEMENT
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Therefore, in consideration of the mutual agreements herein and other
sufficient consideration, the receipt of which is hereby acknowledged, Borrower,
Administrative Agent and Lenders hereby agree as follows:
1. DEFINITIONS. All references to the "Agreement" or the "Loan Agreement" in the
Original Loan Agreement, the First Amendment to Loan Agreement or in this
Agreement, shall be deemed to be references to the Original Loan Agreement as it
may be amended, restated, extended, renewed, replaced, or otherwise modified
from time to time. Capitalized terms used and not otherwise defined herein have
the meanings given them in the Original Loan Agreement.
2. EFFECTIVENESS OF AGREEMENT. This Agreement shall be effective as of the date
first written above, but only if this Agreement has been executed by Borrower,
Administrative Agent and the Lenders.
3. AGREEMENT. Borrower, Administrative Agent and Lenders hereby agree that the
Revolving Loan Maturity Date shall be, and hereby is, extended by one (1) year
from May 30, 2005 to May 30, 2006.
4. REPRESENTATION AND WARRANTIES OF BORROWER. Borrower hereby represents and
warrants to Administrative Agent and the Lenders that (i) Borrower's execution,
delivery and performance of this Agreement has been duly authorized by all
requisite action of borrower, (ii) no consents are necessary from any third
parties for Borrower's execution, delivery or performance of this Agreement,
(iii) this
Agreement, the Loan Agreement, the First Amendment to Loan Agreement and
each of the other Loan Documents, constitute the legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance with
their terms, except to the extent that the enforceability thereof against
Borrower may be limited by bankruptcy, insolvency or other laws affecting
the enforceability of creditors rights generally or by equity principles of
general application, (iv) all of the representations and warranties
contained in Section 10 of the Loan Agreement are true and correct with the
same force and effect as if made on and as of the date of this Agreement,
(v) after giving effect to this Agreement, there is no Existing Default, and
(vi) since the Effective Date, there has been no change or modification to
the Charter Documents of Borrower or any other Covered Person.
5. REAFFIRMATION. Borrower hereby represents, warrants, acknowledges and
confirms that (i) the Loan Agreement, the First Amendment to Loan Agreement and
the other Loan Documents remain in full force and effect, (ii) Borrower has no
defenses to its obligations under the Loan Agreement, the First Amendment to
Loan Agreement and the other Loan Documents, and (iii) Borrower has no claim
against Administrative Agent or any Lender arising from or in connection with
the Loan Agreement, the First Amendment to Loan Agreement or the other Loan
Documents and any such claim is hereby irrevocably waived and released and
discharged forever.
6. GOVERNING LAW. This Agreement has been deemed to be executed and delivered in
Chicago, Illinois, and shall be governed by and construed under the laws of the
State of Illinois without giving effect to choice or conflicts of law principles
thereunder.
7. SECTION TITLES. The section titles in this Agreement are for convenience of
reference only and shall not be construed so as to modify any provisions of this
Agreement.
8. COUNTERPARTS; FACSIMILE TRANSMISSIONS. This Agreement may be executed in one
or more counterparts and on separate counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument. Signatures to this Agreement may be given by facsimile or other
electronic transmission, and such signatures shall be fully binding on the party
sending the same.
9. INCORPORATION BY REFERENCE. Administrative Agent, Lenders and Borrowers
hereby agree that all of the terms of the Loan Documents and of the First
Amendment to Loan Agreement are incorporated in and made a part of this
Agreement by this reference.
10. FEES AND EXPENSES. Borrower shall promptly pay to Administrative Agent all
fees, expenses and other amounts owing to Administrative Agent under the Loan
Agreement, the First Amendment to Loan Agreement and the other Loan Documents,
including, without limitation, all fees, costs and expenses incurred by
Administrative Agent in connection with the preparation, negotiation, execution,
and delivery of this Agreement.
11. NOTICE - ORAL COMMITMENTS NOT ENFORCEABLE. Nothing contained in the
following notice shall be deemed to limit or modify the terms of the Loan
Documents:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND
OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER) AND
US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS
WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US,
EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
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Borrower acknowledges that there are no other agreements between Administrative
Agent, Lenders, and Borrower, oral or written, concerning the subject matter of
the Loan Documents, and that all prior agreements concerning the same subject
matter, including any proposal or commitment letter, are merged into the Loan
Documents and thereby extinguished.
12. STATUTORY NOTICE-INSURANCE. The following notice is given pursuant to
Section 10 of the Collateral Protection Act set forth in Chapter 815 Section
180/1 of the Illinois Compiled Statutes (1996); nothing contained in such notice
shall be deemed to limit or modify the terms of the Loan Documents:
UNLESS YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY YOUR
AGREEMENT WITH US, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT
OUR INTERESTS IN YOUR COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT,
PROTECT YOUR INTERESTS. THE COVERAGE THAT WE PURCHASE MAY NOT PAY ANY
CLAIM THAT YOU MAKE OR ANY CLAIM THAT IS MADE AGAINST YOU IN CONNECTION
WITH THE COLLATERAL. YOU MAY LATER CANCEL ANY INSURANCE PURCHASED BY
US, BUT ONLY AFTER PROVIDING EVIDENCE THAT YOU HAVE OBTAINED INSURANCE
AS REQUIRED BY OUR AGREEMENT. IF WE PURCHASE INSURANCE FOR THE
COLLATERAL, YOU WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE,
INCLUDING THE INSURANCE PREMIUM, INTEREST AND ANY OTHER CHARGES WE MAY
IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE
EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE
COSTS OF THE INSURANCE MAY BE ADDED TO YOUR TOTAL OUTSTANDING BALANCE
OR OBLIGATION. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF
INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first above written.
XXXXXXXX CORPORATION, A MISSOURI CORPORATION, AS BORROWER
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Vice President
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LASALLE BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT AND A LENDER
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
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Title: Assistant Vice President
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UMB BANK, NATIONAL ASSOCIATION, A LENDER
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Executive Vice President
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XXXXX FARGO BANK, N.A., A LENDER
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Vice President
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