SECOND AMENDMENT TO CREDIT FACILITY AGREEMENT
Exhibit 4.1
SECOND AMENDMENT TO CREDIT FACILITY AGREEMENT
THIS SECOND AMENDMENT, dated as of the 14th day of June, 2006, to that certain Amended and
Restated Credit Facility Agreement dated as of July 12, 2005, as amended by a First Amendment to
Credit Facility Agreement dated as of February 24, 2006 (the “Agreement”), between BANK OF AMERICA,
N.A., a national banking association and successor by merger to Fleet National Bank, having an
office at Xxx Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the “Bank”), and XXXXXX CORPORATION, a
corporation formed under the laws of the State of Delaware with offices at 00 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxx 00000 (the “Borrower”).
The parties hereby agree as follows:
2.1 Revolving Line. Subject to the terms and conditions of this Agreement, the
Bank hereby establishes for the benefit of the Borrower a revolving line of credit in the
maximum principal amount of Twenty Million Dollars ($20,000,000.00) outstanding at any one
time. The proceeds of the Revolving Line shall be used to meet the Borrower’s letter of
credit and working capital requirements. Subject to the terms of this Agreement, the
Borrower may borrow, repay, and reborrow under the Revolving Line so long as the aggregate
principal amount outstanding at any time, plus (a) the undrawn amount of all Letters of
Credit and (b) the outstanding principal amount of all Term Loans, does not exceed
$20,000,000.00.
4. Article 3 of the Agreement shall be amended to read as follows:
3.1 Letters of Credit. Subject to the terms and conditions of this Agreement,
the Bank will make Letters of Credit available for the account of the Borrower or, subject
to the terms described below, for the account of the Borrower’s Chinese subsidiary, Xxxxxx
Vacuum and Heat Transfer Technology (Suzhou) Co., Ltd. (“Graham China”) in an aggregate
stated face amount not exceeding the lesser of (a) Twelve Million Dollars ($12,000,000), and
(b) the availability under the Revolving Line. Letters of Credit will be made promptly
available for the Borrower’s or Xxxxxx China’s work in process (to
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support customer progress payments) or as otherwise requested by Borrower or Xxxxxx
China for general business purposes. Letters of Credit issued for the account of Xxxxxx
China may be either in US Dollars or in Chinese RMBs, as requested by Xxxxxx China at the
time the Letter of Credit is issued. The stated amount outstanding under all Letters of
Credit at all times shall reduce, dollar for dollar, the amount available for advances under
the Revolving Line. The Letters of Credit shall be in form satisfactory to the Bank and
will be for a term of up to three (3) years from the date of issuance, except that Letters
of Credit in the aggregate face amount of $8,000,000.00 may have maturities of up to five
(5) years from the date of issuance and may extend for up to five (5) years beyond the
Revolving Credit Termination Date. The total face amount of all Letters of Credit issued for
both the Borrower and Xxxxxx China may never exceed $12,000,000.00, with initial sublimits
of $11,000,000.00 for the Borrower and $1,000,000.00 for Xxxxxx China. The Bank agrees that
it will, from time to time revise this allocation on the basis of the Borrower’s and Xxxxxx
China’s respective needs, but subject always to the approval of the Bank.
3.2 Commissions. The Borrower or Xxxxxx China, as the case may be, will pay
letter of credit commissions to the Bank on the date of issuance of the Letter of Credit and
on each anniversary date thereafter if the Letter of Credit is renewed or has a maturity in
excess of one year from the date of issuance, equal to one and one-quarter of one percent
(1.25%) of the undrawn amount thereof for standby letters of credit, and one-quarter of one
percent (0.25%) of the undrawn amount thereof for documentary letters of credit.
Commissions on letters of credit having maturities of less than one year shall be charged
ratably. In addition, the Borrower or Xxxxxx China, as the case may be, will pay to the
Bank a $150 administrative fee for each Letter of Credit issued pursuant to this Agreement.
3.3 Reimbursement. The Borrower or Xxxxxx China, as the case may be, will
execute a Reimbursement Agreement that is satisfactory to the Bank, documenting its
Obligations with respect to each of the Letters of Credit issued for its account. In
addition, the Borrower agrees that it will co-sign each Reimbursement Agreement relating to
a Letter of Credit issued for the account of Xxxxxx China, and will be jointly and severally
liable, with Xxxxxx China, for all amounts owing to the Bank with respect to such Letters of
Credit, including without limitation reimbursement amounts, interest thereon, fees, charges
and penalties. Among other items, the Reimbursement Agreement will require immediate
reimbursement to the Bank for all amounts drawn under the Letters of Credit, and outstanding
drawn amounts not so reimbursed may, at the discretion of the Bank, be treated as advances
under the Revolving Line.
All payments shall be made by Borrower or Xxxxxx China to Bank at the address for Bank first
shown above in this Agreement or such other place as Bank may from time to time specify in
writing in lawful currency of the United States of America in immediately available funds,
without counterclaim or setoff and free and clear of, and without deduction or withholding
for, any taxes or other payments.
5. Section 10.7. Section 10.7 of the Agreement shall be amended to read as follows:
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10.7 Material Changes. Permit any material change to be made in the character
of the business of the Borrower, or in its President, Chief Operating Officer or Chief
Financial Officer, other than for cause unless Borrower shall have provided for a successor
reasonably acceptable to the Bank, or in the nature of its operations as carried on at the
date hereof.
In addition, the Borrower has informed the Bank that on or around June 30, 2006, Xxxxx Lines
will replace Xxxxxxx Xxxxxxx as its Chief Operating Officer and a member of its Board of Directors.
The Bank agrees that Mr. Lines is an acceptable successor and that this change does not constitute
a violation of Section 10.7.
9. Governing Law. This Amendment, together with all of the rights and obligations of
the parties hereto, shall be construed and interpreted in accordance with the laws of the State of
New York, excluding the laws applicable to conflicts or choice of law.
BANK OF AMERICA, X.X. | XXXXXX CORPORATION | |||||
By: | By: |
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Xxxxxxx X’Xxxxx | Xxx Xxxxxx | |||||
Title: | Vice President | Title: | Vice President | |||
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Exhibit A
AMENDED AND RESTATED REVOLVING LINE NOTE
$20,000,000.00 |
June 14, 2006 |
Unless otherwise expressly provided herein, all capitalized terms in this Revolving Line Note
shall have the meanings given to them in the Amended and Restated Credit Facility Agreement dated
as of July 12, 2005, as amended on February 24, 2006 and on the date hereof, between the
undersigned, Xxxxxx Corporation (“Borrower”) and Bank of America Company, N.A. (“Bank”), as the
same may be amended, extended, replaced, or modified from time to time (the “Credit Agreement”).
FOR VALUE RECEIVED, XXXXXX CORPORATION hereby promises to pay to the order of BANK OF AMERICA,
N.A. at Xxx Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, or at such other places as Bank may specify in
writing to Borrower, the principal sum of Twenty Million Dollars ($20,000,000.00) or, if less, the
aggregate unpaid principal amount of all Revolving Line advances made by Bank to Borrower. The
Bank shall maintain a record of amounts of principal and interest payable by Borrower from time to
time, and the records of Bank maintained in the ordinary course of business shall be prima facie
evidence of the existence and amounts of the Borrower’s obligations recorded therein. In addition,
Bank may mail or deliver periodic statements to Borrower indicating the date and amount of each
advance hereunder (but any failure to do so shall not relieve Borrower of the obligation to repay
any advance). Unless Borrower questions the accuracy of an entry on any periodic statement within
thirty business days after such mailing or delivery by Bank, Borrower shall be deemed to have
accepted and be obligated by the terms of each such periodic statement as accurately representing
the advances hereunder. In the event of transfer of this Revolving Line Note, or if the Bank shall
otherwise deem it appropriate, Borrower hereby authorizes Bank to endorse on this Revolving Line
Note the amount of advances and payments to reflect the principal balance outstanding from time to
time. Bank is hereby authorized to honor borrowing and other requests received from purported
representatives of Borrower orally, by telecopy, in writing, or otherwise. Oral requests shall be
conclusively presumed to have been made by an authorized person and Bank’s crediting of Borrower’s
account with the amount requested shall conclusively establish Borrower’s obligation to repay the
amount advanced.
Interest. Outstanding amounts under this Revolving Line Note shall bear interest, except as
otherwise specifically provided herein, at a variable rate per annum equal to the Prime Rate in
effect from time to time minus the Applicable Prime Rate Margin. Changes in the interest rate shall
become effective automatically and without notice at the time of changes in the Prime Rate.
The Borrower from time to time, however, may elect to have portions of the principal
outstanding under this Revolving Line Note bear interest at the fixed per annum rate equal to the
one-month, two-month, or three- month LIBOR Rate plus the Applicable LIBOR Margin for the period
applicable to that rate by giving at least two (2) business days’ prior notice in writing or by
telecopy to the Bank. The notice shall specify (i) the rate chosen, (ii) the
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outstanding principal amount to bear interest at the applicable LIBOR Rate (with any
outstanding amounts from time to time under this Revolving Line Note, in excess of such specified
amount, to bear interest at the rate based upon the Prime Rate), and (iii) the commencement date
for such rate. No LIBOR Interest Period may be elected that would extend beyond the maturity date
of this Revolving Line Note. The rate of interest so elected shall be in effect for the respective
applicable LIBOR Interest Period. The Borrower shall be responsible for all Break Costs including
without limitation those applicable if during any period in which a LIBOR based rate or rates is or
are in effect, if the principal amount outstanding under this Revolving Line Note bearing interest
at such respective rate or rates is ever less than the principal amount stated in the respective
election notice or notices for such period.
Interest shall be calculated on the basis of a 360 day year and using the actual number of
days elapsed. Interest shall continue to accrue after maturity (including after acceleration and
judgment) at the rate required by this Revolving Line Note until this Revolving Line Note is paid
in full.
The rate of interest on this Revolving Line Note may be increased under the circumstances
provided in the Credit Agreement. The right of Bank to receive such increased rate of interest
shall not constitute a waiver of any other right or remedy of Bank.
All remaining outstanding principal and accrued interest shall be due and payable in full upon
the earlier of (a) at the option of the Bank, upon written notice to Borrower, an Event of Default,
or (b) the Revolving Line Termination Date, provided that under certain circumstances, some or all
of the principal amounts outstanding under this Revolving Line Note may be converted to a Term Loan
in accordance with the terms of Article 4 of the Credit Agreement.
In the event the Borrower becomes aware, or receives notice (oral or written) from the Bank,
that principal amounts outstanding under this Revolving Line Note exceed the maximum available
amount described herein at any time, Borrower promptly shall make a principal payment to the Bank
sufficient to reduce outstanding principal amounts to the maximum amount available hereunder.
All payments shall be made by Borrower to Bank at the address for Bank first shown above in
this Revolving Line Note or such other place as Bank may from time to time specify in writing in
lawful currency of the United States of America in immediately available funds, without
counterclaim or setoff and free and clear of, and without deduction or withholding for, any taxes
or other payments. All payments shall be applied first to the payment of all fees, expenses and
other amounts due to the Bank (excluding principal and interest), then to accrued interest, and the
balance on account of outstanding principal; provided, however, that after an Event of Default or
demand for payment in full, payments will be applied to the obligations of Borrower to the Bank as
Bank determines in its sole discretion.
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Prepayment. This Revolving Line Note is prepayable to the extent allowed by, and on the terms
provided by the Credit Agreement.
Maximum Rate. All agreements between Borrower and Bank are hereby expressly limited so that
in no contingency or event whatsoever, whether by reason of acceleration or maturity of the
indebtedness evidenced hereby or otherwise, shall the amount paid or agreed to be paid to Bank for
the use or the forbearance of the indebtedness evidenced hereby exceed the maximum permissible
under applicable law. As used herein, the term “applicable law” shall mean the law in effect as of
the date hereof, provided, however that in the event there is a change in the law which results in
a higher permissible rate of interest, then this Revolving Line Note shall be governed by such new
law as of its effective date. In this regard, it is expressly agreed that it is the intent of
Borrower and Bank in the execution, delivery and acceptance of this Revolving Line Note to contract
in strict compliance with the laws of the State of New York from time to time in effect. If, under
or from any circumstances whatsoever, fulfillment of any provision hereof or of any of the
documents and agreements related hereto at the time performance of such provision shall be due,
shall involve transcending the limit of such validity prescribed by applicable law, then the
obligation to be fulfilled shall automatically be reduced to the limits of such validity, and if
under or from any circumstances whatsoever Bank should ever receive as interest an amount which
would exceed the highest lawful rate, such amount which would be excessive interest shall be
applied to the reduction of the principal balance evidenced hereby and not to the payment of
interest. This provision shall control every other provision of all agreements between Borrower and
Bank.
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expressly waived by Borrower), Bank may set off the same or any part thereof and apply the
same to any Obligation of Borrower even though unmatured and regardless of the adequacy of any
other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE BANK TO EXERCISE ITS
RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO
EXERCISING ITS RIGHT OF SET OFF WITH RESPECT TO SUCH DEPOSITS, CREDITS, OR OTHER PROPERTY OF
BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVED.
The Bank may at any time pledge or assign all or any portion of its rights under this
Revolving Line Note to any of the twelve (12) Federal Reserve Banks organized under Section 4 of
the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or assignment or enforcement
thereof shall release Bank from its obligations under any of this Revolving Line Note or any other
loan documents.
The Bank shall have the unrestricted right at any time or from time to time, and without
Borrower’s consent, to assign all or any portion of its rights and obligations hereunder to one or
more banks or other financial institutions (each an “Assignee”), and Borrower agrees that it shall
execute, or cause to be executed, such documents, including without limitation, amendments to this
Revolving Line Note and to any other loan documents, as the Bank shall deem necessary to effect the
foregoing. In addition, at the request of the Bank and any such Assignee, Borrower shall issue one
or more new promissory notes, as applicable, to any such Assignee and, if Bank
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has retained any of its rights and obligations hereunder following such assignment, to Bank,
which new promissory notes shall be issued in replacement of, but not in discharge of, the
liability evidenced by the promissory note held by Bank prior to such assignment and shall reflect
the amount of the respective commitments and loans held by such Assignee and Bank after giving
effect to such assignment. Upon the execution and delivery of appropriate assignment
documentation, amendments, and any other documentation required by Bank in connection with such
assignment, and the payment by Assignee of the purchase price agreed to by Bank and such Assignee,
such Assignee shall be a party to this agreement and shall have all of the rights and obligations
of the Bank hereunder (and under any and all other loan documents) to the extent that such rights
and obligations have been assigned by the Bank pursuant to the assignment documentation between the
Bank and such Assignee, and Bank shall be released from its obligations hereunder and thereunder to
a corresponding extent.
The Bank shall have the unrestricted right at any time and from time to time, and without the
consent of or notice to Borrower, to grant to one or more banks or other financial institutions
(each a “Participant”) participating interests in Bank’s obligation to lend hereunder and/or any or
all of the loans held by Bank hereunder. In the event of any such grant by Bank of a participating
interest to Participant, whether or not upon notice to Borrower, Bank shall remain responsible for
the performance of its obligations hereunder and Borrower shall continue to deal solely and
directly with Bank in connection with Bank’s rights and obligations hereunder.
The Bank may furnish any information concerning Borrower in its possession from time to time
to prospective Assignees and Participants, provided that the Bank shall require any such
prospective Assignee or Participant to agree in writing to maintain the confidentiality of such
information.
Loss or Mutilation. Upon receipt of an affidavit of an officer of Bank as to the loss, theft,
destruction, or mutilation of this Revolving Line Note, and, in the case of any such loss, theft,
destruction or mutilation, upon cancellation of this Revolving Line Note, Borrower will issue, in
lieu thereof, a replacement note or other loan document in the same principal amount thereof and
otherwise of like tenor.
Regulation U. No portion of the proceeds of this Revolving Line Note shall be used, in whole
or in part, for the purpose of purchasing or carrying any “margin stock” as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve System.
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Choice of Law. This Revolving Line Note and the rights and obligations of the parties
hereunder, shall be construed, interpreted, governed and enforced in accordance with the laws of
the State of New York (excluding the laws applicable to conflicts or choice of law).
Enforcement/Waiver of Jury Trial. BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
REVOLVING LINE NOTE OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX
XXX XXXX LOCATED IN MONROE COUNTY OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT. BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT FORUM.
BORROWER AND BANK (BY ACCEPTANCE OF THIS REVOLVING LINE NOTE) MUTUALLY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS REVOLVING LINE NOTE OR ANY OTHER LOAN
DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY, INCLUDING WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS OR ACTIONS OF BANK RELATING TO THE ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THIS
REVOLVING LINE NOTE OR THE LOAN DOCUMENTS, AND AGREE THAT NEITHER PARTY WILL SEEK TO CONSOLIDATE
ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
EXCEPT AS PROHIBITED BY LAW, BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN
ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES. BORROWER CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR
ATTORNEY OF BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BANK WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT
FOR BANK TO ACCEPT THIS REVOLVING LINE NOTE AND MAKE THE LOANS CONTEMPLATED HEREUNDER.
XXXXXX CORPORATION
By: ________________________________________
Title: _______________________________________
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