EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT
AND AGREEMENT TO RELEASE
This First Amendment to Credit and Security Agreement and Agreement to
Release (this "Amendment"), made as of March 25, 2002 among XXXXXX & XXXXX
CORPORATION, as Borrower, (the "Borrower"), the various financial institutions
whose names appear as lenders on the signature pages to the Credit Agreement (as
defined below) (together with any other financial institution which subsequently
becomes a lender under the Credit Agreement, the "Lenders"), and WACHOVIA BANK,
N.A., as Agent (the "Agent").
WITNESSETH:
WHEREAS, the Borrower, the Lenders, and the Agent are parties to that
certain Credit and Security Agreement, dated as of November 15, 2001 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"); and
WHEREAS, the Borrower has determined that it is in its best interest to
sell certain of its Equipment Collateral, Inventory Collateral, and Real
Property relating to three of its product lines as disclosed to the Agent and
the Lenders under the terms of a confidentiality agreement (the "Assets"), and
in connection with such proposed sale of its Assets, the Borrower has requested
certain amendments to the Credit Agreement and the Required Lenders and the
Agent have agreed to such amendments on the terms and conditions set forth
herein;
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 parties agree
that all capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Credit Agreement, as amended hereby, and
further agree as follows:
1. Amendments to Credit Agreement. Subject to the fulfillment of the
conditions precedent to the effectiveness of this Amendment which are set forth
below, the Credit Agreement shall be amended as follows:
(a) Article 1 of the Credit Agreement, Definitions, is hereby
amended to add the following definition for "Assets," with such definition
to be inserted in its proper alphabetical order:
""Assets" means the assets of the Borrower relating to
the three product lines disclosed to the Agent and the
Lenders under the terms of a confidentiality agreement and
designated as being the "Assets" as such term is defined in
that certain First Amendment to Credit and Security Agreement
and Agreement to Release dated as of March 25, 2002."
(b) Article 1 of the Credit Agreement, Definitions, is hereby
amended to modify the existing definition of "Equipment Availability" by
deleting the existing definition for such term in its entirety and substituting
in lieu thereof the following definition:
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""Equipment Availability" means (i) from the Closing Date
through and including the earlier of (a) the date that the
Borrower consummates the sale of the Assets, or (b) March
31, 2002, an amount equal to $11,200,000 multiplied by the
Equipment Availability Adjustment, and (ii) thereafter,
through and including the Termination Date, an amount equal to
$7,100,000 multiplied by the Equipment Availability
Adjustment.
(c) Section 5.05(b)(i) of the Credit Agreement,
Consolidations, Mergers and Sales of Assets, is hereby modified by deleting such
Section in its entirety and substituting in lieu thereof, the following:
"so long as no Default or Event of Default shall have occurred
and be continuing, or would be caused thereby, and subject to
the provisions of SECTION 2.10(c), the dispositions of assets
related to the product lines for Meters, circuit protection,
Zinco breakers, enclosures, and the Assets;"
2. Agreement to Release. Subject to the terms and conditions hereof and
of Section 5.05 of the Credit Agreement, upon receipt by the Agent of evidence
satisfactory to it of the consummation of the sale of the Assets and the deposit
of Net Cash Proceeds therefrom in an amount not less than $40,000,000 into the
Collateral Reserve Account, the Agent agrees that it will release its security
interest in the Assets.
3. Increase in Permitted Equipment Disposition Limit. The Borrower has
requested and the Agent has agreed in the exercise of its Permitted Discretion
to increase the Permitted Equipment Disposition Limit, as defined in the Credit
Agreement, to 19.0%.
4. No Waiver. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided above, operate as a waiver of
any right, power or remedy of the Agent or the Lenders under the Credit
Agreement or any of the other Credit Documents, nor constitute a waiver of any
provision of the Credit Agreement or any of the other Credit Documents. Except
for the amendments expressly set forth above, the text of the Credit Agreement
and all other Credit Documents shall remain unchanged and in full force and
effect and the Borrower hereby ratifies and confirms its obligations thereunder.
This Amendment shall not constitute a modification of the Credit Agreement or a
course of dealing with the Agent or the Lenders at variance with the Credit
Agreement such as to require further notice by the Agent or the Lenders to
require strict compliance with the terms of the Credit Agreement and the other
Credit Documents in the future. Nothing in this Amendment is intended, or shall
be construed, to constitute a novation or an accord and satisfaction of any of
the Obligations or to modify, affect or impair the perfection or
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continuity of the Agent's and the Lenders' security interests in, security
titles to, or other Liens on, any Collateral for the Obligations, other than as
expressly set forth herein.
5. Conditions of Effectiveness. This Amendment shall become effective
as of the date hereof when, and only when, the Agent, on behalf of itself and
the Lenders, shall have received, in form and substance reasonably satisfactory
to it:
(a) duly executed counterparts of this Amendment;
(b) an updated Borrowing Base Certificate, after giving effect
to the sale of the Assets; and
(c) such other information, documents, instruments or
approvals as the Agent may require, in form and substance reasonably
satisfactory to Agent.
6. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Tennessee;
(b) The execution, delivery and performance by the Borrower of
this Amendment and the Credit Documents, as amended hereby, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) the Borrower's organizational
documents, (ii) law; or (iii) or any contractual restriction binding on or
affecting the Borrower;
(c) This Amendment and each of the other Credit Documents, as
amended hereby, constitute legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms,
provided that the enforceability hereof and thereof is subject in each case to
general principles of equity and to bankruptcy, insolvency and similar laws
affecting the enforcement of creditors' rights generally; and
(d) No Default or Event of Default, under the Credit Agreement
as amended hereby is existing or would be caused by the sale of the Assets.
7. Reference to and Effect on the Credit Documents. Upon the
effectiveness of this Amendment, on and after the date hereof each reference in
the Credit Agreement to "this Agreement," "hereunder," "hereof" or words of like
import referring to the Credit Agreement, and each reference in the other Credit
Documents to the "Credit Agreement," "thereunder," "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby.
8. Costs, Expenses and Taxes. The Borrower agrees to pay on demand all
reasonable costs and expenses in connection with the preparation, execution,
delivery, administration, modification and amendment of this Amendment and the
other instruments and documents to be delivered hereunder, including, without
limitation, the reasonable fees
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and out-of-pocket expenses of counsel for the Agent with respect thereto and
with respect to advising the Agent as to its rights and responsibilities
hereunder and thereunder.
9. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
10. Credit Document. This Amendment shall be deemed to be a Credit
Document for all purposes.
11. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts, each of which shall be
deemed an original and all of which, taken together, shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart of
this Amendment by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof and shall be deemed to be a writing for all
purposes.
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IN WITNESS WHEREOF, the parties hereto have caused their
respective duly authorized officers or representatives to execute and deliver
this Amendment as of the day and year first written above.
XXXXXX & XXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
0000 X&X Xxxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Facsimile: 000-000-0000
WACHOVIA BANK, N.A.,
as Agent and as a Lender
By: /s/ W. Xxxxxx Xxxxxx
----------------------------------
Name: W. Xxxxxx Xxxxxx
-----------------------------
Title: Director
----------------------------
Lending Office
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Structured Finance
Facsimile: 000-000-0000
First Amendment and Agreement to Release
FLEET CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxxxxxxxx X. Waivne
-----------------------------------
Name: Xxxxxxxxxxx X. Waivne
-----------------------------
Title: Vice President
----------------------------
Lending Office
Fleet Capital Corporation
000 Xxxxxxxx Xxxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx,
Executive Vice President
Facsimile: 000-000-0000
SIEMENS FINANCIAL
SERVICES, INC.
as a Lender
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
-----------------------------
Title: VP - Credit
----------------------------
Lending Office
Siemens Financial Services, Inc.
000 Xxxxxxxx Xxxxxxxxx Xxxx.
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx, Vice President -
Credit
Facsimile: 000-000-0000
First Amendment and Agreement to Release
CIBC, INC.,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
-------------------------------
Title: Executive Director
------------------------------
Lending Office
CIBC, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx,
Executive Director
Facsimile: 000-000-0000
THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ Xxxxxxxxxxx X. XxXxxx
-------------------------------------
Name: Xxxxxxxxxxx X. XxXxxx
-------------------------------
Title: Second Vice President
------------------------------
Lending Office
The Northern Trust Company
00 X. XxXxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxxxxx XxXxxx, Second
Vice President
Facsimile: 000-000-0000
First Amendment and Agreement to Release
KBC BANK N.V.,
as a Lender
By: /s/ Xxxx-Xxxxxx Diels, Xxxx Xxxxxx
---------------------------------------
Name: Xxxx-Xxxxxx Diels, Xxxx Xxxxxx
---------------------------------
Title: First Vice President, Vice President
------------------------------------
Lending Office
KBC Bank N.V.
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx, Vice
President
Facsimile: 000-000-0000
First Amendment and Agreement to Release
