THIRD AMENDMENT AGREEMENT
EXHIBIT
10.1
This
THIRD AMENDMENT AGREEMENT (this “Amendment”) is made as of the 31st day of
July, 2007
among:
(a) NN,
INC., a Delaware corporation (“US Borrower”);
(b) each
Foreign Borrower, as defined in the Credit Agreement, as hereinafter defined
(each such Foreign Borrower, together with US Borrower shall be referred to
herein, collectively, as “Borrowers” and, individually, each a
“Borrower”);
(c) the
Lenders, as defined in the Credit Agreement;
(d) AMSOUTH
BANK, as Swing Line Lender, as defined in the Credit Agreement; and
(e) KEYBANK
NATIONAL ASSOCIATION, as the lead arranger, book runner and administrative
agent
for the Lenders under the Credit Agreement (“Agent”).
WHEREAS,
Borrowers, Agent and the Lenders are parties to that certain Credit Agreement,
dated as of September 21, 2006, that provides, among other things, for loans
and
letters of credit aggregating One Hundred Thirty-Five Million Dollars
($135,000,000), all upon certain terms and conditions (as amended and as the
same may from time to time be further amended, restated or otherwise modified,
the “Credit Agreement”);
WHEREAS,
Borrowers, Agent and the Lenders desire to amend the Credit Agreement to modify
certain provisions thereof;
WHEREAS,
each capitalized term used herein and defined in the Credit Agreement, but
not
otherwise defined herein, shall have the meaning given such term in the Credit
Agreement; and
WHEREAS,
unless otherwise specifically provided herein, the provisions of the Credit
Agreement revised herein are amended effective as of the date of this
Amendment;
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants herein
and for other valuable consideration, Borrowers, Agent and the Lenders agree
as
follows:
1. Retroactive
Amendment to Definitions. Section 1.1 of the Credit
Agreement is hereby retroactively amended, effective as of June 30, 2007, to
delete the definition of “Consolidated EBITDA” therefrom and to insert in place
thereof the following:
“Consolidated
EBITDA” shall mean, for
any period, as determined on a Consolidated basis and after giving Pro Forma
Effect to any Acquisition made during such period, Consolidated Net Earnings
for
such period plus, without duplication, the aggregate amounts deducted in
determining such Consolidated Net Earnings in respect of
(a) Consolidated
Interest Expense, (b) Consolidated Income Tax Expense, (c) Consolidated
Depreciation and Amortization Charges, and (d) (i) non-recurring non-cash
charges incurred in accordance with GAAP, minus (ii) extraordinary or unusual
non-cash gains not incurred in the ordinary course of business but that were
included in the calculation of Consolidated Net Earnings for such
period.
2. Closing
Deliveries. Concurrently with the execution of this Amendment, US
Borrower shall:
(a) execute
and deliver to Agent, for its sole benefit, the Third Amendment Agent Fee
Letter, and pay to Agent, for its sole account, the fees stated
therein;
(b) pay
an amendment fee to Agent, for the benefit of each Lender that shall have
executed and delivered this Amendment to Agent on or before 5:00 P.M. (Eastern
time) on July 30, 2007, in an amount equal to five basis points times such
Lender’s Maximum Amount (which amount shall not exceed Sixty-Seven Thousand Five
Hundred Dollars ($67,500);
(c) cause
each Guarantor of Payment to execute the attached Acknowledgment and Agreement;
and
(d) pay
all legal fees and expenses of Agent in connection with this
Amendment.
3. Representations
and Warranties. Each Borrower hereby represents and warrants to
Agent and the Lenders that (a) such Borrower has the legal power and authority
to execute and deliver this Amendment; (b) the officers executing this
Amendment have been duly authorized to execute and deliver the same and bind
such Borrower with respect to the provisions hereof; (c) the execution and
delivery hereof by such Borrower and the performance and observance by such
Borrower of the provisions hereof do not violate or conflict with the
organizational agreements of such Borrower or any law applicable to such
Borrower or result in a breach of any provision of or constitute a default
under
any other agreement, instrument or document binding upon or enforceable against
such Borrower; (d) no Default or Event of Default exists under the Credit
Agreement, nor will any occur immediately after the execution and delivery
of
this Amendment or by the performance or observance of any provision hereof;
(e)
such Borrower is not aware of any claim or offset against, or defense or
counterclaim to, such Borrower’s obligations or liabilities under the Credit
Agreement or any Related Writing; and (f) this Amendment constitutes a
valid and binding obligation of such Borrower in every respect, enforceable
in
accordance with its terms.
4. References
to Credit Agreement. Each reference that is made in the Credit
Agreement or any Related Writing shall hereafter be construed as a reference
to
the Credit Agreement as amended hereby. Except as herein otherwise specifically
provided, all terms and provisions of the Credit Agreement are confirmed and
ratified and shall remain in full force and effect and be unaffected hereby.
This Amendment is a Related Writing.
5. Waiver. Each
Borrower, by signing below, hereby waives and releases Agent and each of the
Lenders, and their respective directors, officers, employees, attorneys,
affiliates and subsidiaries, from any and all claims, offsets, defenses and
counterclaims of which such Borrower is aware, such waiver and release being
with full knowledge and understanding of the circumstances and effect thereof
and after having consulted legal counsel with respect thereto.
6. Counterparts. This
Amendment may be executed in any number of counterparts, by different parties
hereto in separate counterparts and by facsimile signature, each of which when
so executed and delivered shall be deemed to be an original and all of which
taken together shall constitute but one and the same agreement.
7. Headings. The
headings, captions and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment.
8. Severability. Any
term or provision of this Amendment held by a court of competent jurisdiction
to
be invalid or unenforceable shall not impair or invalidate the remainder of
this
Amendment and the effect thereof shall be confined to the term or provision
so
held to be invalid or unenforceable.
9. Governing
Law. The rights and obligations of all parties hereto shall be
governed by the laws of the State of Ohio, without regard to principles of
conflicts of laws.
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JURY
TRIAL WAIVER. BORROWERS, THE LENDERS AND AGENT, TO THE EXTENT
PERMITTED BY LAW, EACH HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG
BORROWERS, THE LENDERS AND AGENT, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM
IN
CONNECTION WITH THIS AMENDMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO.
IN
WITNESS WHEREOF, the parties have executed and delivered this Amendment as
of
the date first set forth above.
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NN,
INC.
By: /s/
Xxxxx X.
Xxxxxx
Xxxxx
X. Xxxxxx
Vice
President – Corporate
Development
and
Chief Financial
Officer
By: /s/ Xxxxxxx
X. Xxxxx,
Xx.
Xxxxxxx
X. Xxxxx,
Xx.
Vice
President, Secretary and
Chief
Administrative
Officer
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KEYBANK
NATIONAL ASSOCIATION,
as
Agent and as a Lender
By: /s/
Xxxxxxxx
Xxxxxx
Xxxxxxxx
Xxxxxx
Vice
President
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AMSOUTH
BANK,
as
Swing Line Lender and as a Lender
By: /s/
J. Xxxxxx
Xxxxx
Name: J.
Xxxxxx
Xxxxx
Title: Executive
Vice
President
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BRANCH
BANKING AND TRUST
COMPANY,
as a
Lender
By: /s/Xxxxxxxx
X.
Xxxxx
Name: Xxxxxxxx
X.
Xxxxx
Title: Vice
President
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XXXXX
FARGO BANK NATIONAL
ASSOCIATION,
as a Lender
By: /s/
Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: Vice
President
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ACKNOWLEDGMENT
AND AGREEMENT
The
undersigned consent and agree to and acknowledge the terms of the foregoing
Third Amendment Agreement dated as of July 31, 2007. The undersigned
further agree that the obligations of the undersigned pursuant to the Guaranty
of Payment executed by the undersigned shall remain in full force and effect
and
be unaffected hereby.
The
undersigned hereby waive and release Agent and the Lenders and their respective
directors, officers, employees, attorneys, affiliates and subsidiaries from
any
and all claims, offsets, defenses and counterclaims of which the undersigned
are
aware, such waiver and release being with full knowledge and understanding
of
the circumstances and effect thereof and after having consulted legal counsel
with respect thereto.
JURY
TRIAL WAIVER. THE UNDERSIGNED, TO THE EXTENT PERMITTED BY LAW,
HEREBY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWERS, AGENT, THE
LENDERS AND THE UNDERSIGNED, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION
WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AMENDMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO.
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THE
DELTA RUBBER COMPANY
By: /s/ Xxxxxxx
X. Xxxxx,
Xx.
Name: Xxxxxxx
X. Xxxxx,
Xx.
Title: Officer/Director
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TRIUMPH
LLC
By: /s/
Xxxxxx
Xxxxxxxxxx
Name: Xxxxxx
Xxxxxxxxxx
Title: Chief
Financial
Officer
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WHIRLAWAY
CORPORATION
By: /s/
Xxxxxx
Xxxxxxxxxx
Name: Xxxxxx
Xxxxxxxxxx
Title: Chief
Financial
Officer
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INDUSTRIAL
MOLDING CORPORATION
By: /s/
Xxxxxxx X. Xxxxx,
Xx.
Name: Xxxxxxx
X. Xxxxx,
Xx.
Title: Officer
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Signature
Page to
Acknowledgment
and Agreement
