Exhibit 10.1
AMENDMENT NO. 6
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THIS AMENDMENT NO. 6 (this "Amendment"), dated as of January 30, 1998,
is between MAY & XXXX, INC., an Illinois corporation ("Borrower"), and THE
NORTHERN TRUST COMPANY, an Illinois banking corporation ("Lender").
W I T N E S S E T H:
WHEREAS, Lender and Borrower are parties to that certain Term Loan
Agreement dated as of November 10, 1988 (as amended by Amendment No. 1 dated
November 21, 1989, Amendment No, 2 dated December 13, 1991, Amendment No. 3
dated February 28, 1993, Amendment No. 4 dated May 16, 1994, and Amendment No, 5
dated March 31, 1995, the "Existing Loan Agreement" and as amended and modified
by this Amendment, the "Term Loan Agreement");
WHEREAS, Borrower has requested certain amendments be made to the
Existing Loan Agreement; and
WHEREAS, subject to the terms and conditions of this Amendment, Lender
is willing to agree to such amendments;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration (the receipt,
adequacy and sufficiency of which is hereby acknowledged), the parties hereto,
intending legally to be bound, hereby agree as follows:
1. Definitions and Interpretations. Terms defined in the Term Loan
Agreement shall have the same respective meanings when used herein.
2. Loan Documents. This Amendment shall be deemed included in the
Loan Documents for all purposes of the Term Loan Agreement and the other Loan
Documents.
3. Amendments. The Existing Loan Agreement is hereby amended
effective as of the date hereof as follows:
A. Section 7.4 of the Existing Loan Agreement is hereby amended by
deleting it in its entirety and inserting the following in lieu thereof:
"(a) Current Ratio. Maintain at all times the ratio of
consolidated current assets to consolidated current
liabilities of not less than 2.0:1.0.
(b) Net Income. Maintain, during each fiscal quarter, Net Income
of not less than $1.00."
B. Lender hereby consents to an amendment to the Security Agreement
and the release of the "Collateral" other than the "ESOP Note" and the "Pledged
Shares" by the "Agent" (as those terms are defined in the Security Agreement)
and directs the Agent to execute the first amendment to Security Agreement (the
"First Amendment to Security Agreement) in substantially the form attached
hereto as Exhibit A and execute UCC-3 termination statements delivered to the
Agent by the Borrower.
C. Borrower agrees to maintain at all times the availability to
borrow under that certain Revolving Credit Agreement dated January 30, 1998
between Borrower and Xxxxxx Trust and Savings Bank as in effect as of the date
hereof (the "Xxxxxx Agreement") in an amount equal to the principal amount and
interest due Lender under the Term Loan Agreement.
D. Notwithstanding anything contained in the Existing Loan Agreement
to the contrary, the failure by Borrower to perform or observe any financial
covenant of Borrower under the Xxxxxx Agreement shall constitute an Event of
Default under the Term Loan Agreement.
4. Documents Remain in Effect. Except as amended and modified by
this Amendment, and the First Amendment to Security Agreement, the Existing Loan
Agreement and the other Loan Documents remain in full force and effect and
Borrower hereby ratifies, adopts and confirms its representations, warranties,
agreements and covenants contained in, and obligations and liabilities under,
the Term Loan Agreement and the other Loan Documents.
5. References in Other Documents. References to the Existing Loan
Agreement as amended by this Amendment in any Loan Document shall be deemed to
be a reference to the Term Loan Agreement, whether or not reference is made to
this Amendment.
6. Representations. Borrower hereby represents and warrants to
Lender that:
(a) Borrower is a corporation duly organized, validly existing, and
in good standing under the laws of the state of its incorporation; and
Borrower is duly qualified and in good standing as a foreign corporation
authorized to do business in each jurisdiction where, because of the nature
of its activities or properties, such qualification is required;
(b) the execution, delivery and performance of this Amendment, the
First Amendment to Security Agreement and any other Loan Document executed
in connection herewith or therewith to which Borrower is a party is within
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, have received all necessary consents and approvals (if
any shall be required), and do not and will not contravene or conflict with
any provision of law or of the charter or by-laws of Borrower, or of any
material agreement binding upon Borrower or its property;
(c) this Amendment, the First Amendment to Security Agreement and any
other Loan Document executed in connection herewith or therewith to which
Borrower is a party
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are (or, when duly executed and delivered will be) the legal, valid, and
binding obligations of Borrower, enforceable against Borrower in accordance
with their respective terms; and
(d) the representations and warranties contained in the Term Loan
Agreement are true and correct on the date hereof, except to the extent
that such representations and warranties solely relate to an earlier date.
7. Conditions Precedent The effectiveness of this Amendment is
subject to receipt by Lender of the following conditions precedent:
(a) an executed original of the First Amendment to Security
Agreement;
(b) a certificate of the Secretary of Borrower certifying: (i) copies
of all corporate action taken by Borrower, including resolutions
of its board of directors, authorizing the execution, delivery,
and performance of this Amendment by Borrower, the First
Amendment to Security Agreement and other Loan Documents to be
delivered pursuant to this Amendment; and (ii) the names and true
signatures of the officers of Borrower authorized to sign this
Amendment, the First Amendment to Security Agreement and the
other Loan Documents to be delivered by the Borrower under this
Amendment;
(c) a consent letter from Xxxxxx Trust and Savings Bank ("Xxxxxx")
pursuant to which it consents to the execution and delivery of
the First Amendment to Security Agreement by the Agent and the
release of the Collateral other than the ESOP Note and the
Pledged Shares by The Northern Trust Company, as the Agent and
directs the Agent to execute the First Amendment to Security
Agreement and UCC-3 termination statements, as the Agent on
behalf of Xxxxxx under the Security Agreement; and
(d) such other instruments, agreements and documents as Lender may
reasonably request, in each case duly executed as required and
otherwise in form and substance satisfactory to Lender.
8. Costs and Expenses. Borrower acknowledges and agrees that this
Amendment shall be of no force or effect unless and until Lender shall have
received full reimbursement for its costs and expenses, including but not
limited to, legal fees, incurred by Lender in connection with this Amendment and
the First Amendment to Security Agreement.
9. Miscellaneous.
(a) Section headings use in this Amendment are for convenience of
reference only, and shall not affect the construction of this Amendment.
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(b) This Amendment and any amendment hereof or supplement hereto or
any waiver granted in connection herewith may be executed in any number of
counterparts and by the different parties on separate counterparts and each
such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same agreement.
(c) This Amendment shall be a contract made under and governed by the
internal laws of the State of Illinois, without giving effect to the
principles of conflicts of laws.
(d) All obligations of Borrower and rights of Lender, that are
expressed herein, shall be in addition to and not in limitation of those
provided by applicable law.
(e) Whenever possible, each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under applicable
law; but it any provision of this Amendment shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Amendment.
(f) This Amendment shall be binding upon Borrower, Lender and their
respective successors and assigns, and shall inure to the benefit of
Borrower and Lender and the successors and assigns of Lender.
[signature page(s) to follow]
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IN WITNESS WHEREOF, the parties hereto have caused the execution and
delivery hereof by their respective representatives thereunto duly authorized as
of the date first herein appearing.
THE NORTHERN TRUST COMPANY
By: Xxxxx X. Xxxxxx
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Its: Second Vice President
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MAY & XXXX, INC
By: Xxxx X. Xxxxxxxxxxx
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Its: Executive Vice President, Chief
Financial Officer and Secretary
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