AMENDMENT NO. 1 TO TERM LOAN CREDIT AGREEMENT
Exhibit 10.02
Execution Copy
Execution Copy
AMENDMENT
NO. 1
TO
This AMENDMENT NO. 1 to TERM LOAN CREDIT AGREEMENT (the
“Amendment”), dated as of March 30, 2009,
is entered into by and among Xxxxxxxx Governor Company (the
“Company”), the financial institutions party to
the below-defined Credit Agreement (the
“Lenders”), and JPMorgan Chase Bank, National
Association, as Administrative Agent (the
“Agent”). Each capitalized term used herein and
not otherwise defined herein shall have the meaning given to it
in the below-defined Credit Agreement.
WITNESSETH
WHEREAS, the Company, the Lenders, and the Agent are parties to
a Term Loan Credit Agreement dated as of October 1, 2008
(as the same has been amended and modified and as the same may
be amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”);
WHEREAS, the Company has requested that the Lenders and the
Agent amend the Credit Agreement in certain respects; and
WHEREAS, the Lenders and the Agent are willing to amend certain
provisions of the Credit Agreement 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 hereto hereby agree as
follows:
1. Amendments to Credit
Agreement. Effective as of the date first
above written, and subject to the satisfaction of the conditions
to effectiveness set forth in Section 2 below, the
Credit Agreement is hereby amended as follows:
(a) Section 6.8 of the Credit Agreement is hereby
amended in its entirety as follows:
6.8 Subsidiaries. As of March 30, 2009,
Schedule 6.8 to this Agreement (i) contains a
description of the corporate structure of the Company, its
Subsidiaries and any other Person in which the Company or any of
its Subsidiaries holds a material Equity Interest; and
(ii) accurately sets forth (A) the correct legal name
and the jurisdiction of organization, (B) a listing of all
of the Company’s Significant Subsidiaries, (C) the
issued and outstanding shares of each class of Capital Stock of
each of the Company’s Subsidiaries and the owners of such
shares, and (D) a summary of the direct and indirect
partnership, joint venture, or other material Equity Interests,
if any, which the Company and each Subsidiary of the Company
holds in any Person that is not a corporation. Except as
disclosed on Schedule 6.8, as of March 30,
2009, there are no warrants or options outstanding with respect
to the issued and outstanding Capital Stock of the Company or
any of the Company’s Subsidiaries. Except as disclosed on
Schedule 6.8, as of Xxxxx 00, 0000, xxxx of the issued
and outstanding Capital Stock of the Company or any of the
Company’s Subsidiaries is subject to any redemption right
or repurchase agreement pursuant to which the Company or any
Subsidiary is or may become obligated to redeem or repurchase
its Capital Stock. All outstanding Capital Stock of each of the
Company’s Subsidiaries is duly authorized, validly issued,
fully paid and nonassessable and is not Margin Stock.
(b) Section 7.3(F) of the Credit Agreement is hereby
amended to insert immediately at the end thereof the following:
In addition to the foregoing, the Company shall not permit any
of its issued and outstanding Capital Stock or any of its
Subsidiaries’ issued and outstanding Capital Stock to be
subject to any redemption right or repurchase agreement pursuant
to which the Company or any Subsidiary is or may become
obligated to redeem or repurchase its Capital Stock, other than
those agreements identified in Schedule 6.8.
(c) Schedule 6.8 of the Credit Agreement is hereby
amended in its entirety pursuant to the Schedule 6.8
attached hereto.
2. Conditions of
Effectiveness. This Amendment shall become
effective and be deemed effective as of the date hereof, if, and
only if, the Agent shall have received (i) executed copies
of this Amendment from the Company and the Required Lenders and
(ii) fully executed and effective copies of amendments to
the Revolving Credit Facility, in form and substance
satisfactory to the Agent, memorializing and corresponding with
the foregoing.
3. Representations and Warranties of the
Company. The Company hereby represents and
warrants as follows:
(a) The Credit Agreement as previously executed and as
amended and modified hereby constitutes the legal, valid and
binding obligation of the Company and is enforceable against the
Company in accordance with its terms (except as enforceability
may be limited by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors’ rights generally
and general equitable principles).
(b) Upon the effectiveness of this Amendment (i) no
Default or Unmatured Default has occurred and is continuing
under the terms of the Credit Agreement, (ii) the Company hereby
reaffirms its obligations and liabilities under the Credit
Agreement (as amended hereby) and the other Loan Documents and
(iii) all representations and warranties in the Credit
Agreement are true and correct in all material respects as of
the date hereof, other than those which expressly speak to an
earlier date (in which case, the Company represents and warrants
that such representations and warranties were true and correct
in all material respects as of such earlier date).
4. Effect on the Credit Agreement.
(a) Upon the effectiveness of this Amendment, on and after
the date hereof, each reference in the Credit Agreement to
“this Agreement,” “hereunder,”
“hereof,” “herein” or words of like import
shall mean and be a reference to the Credit Agreement, as
amended and modified hereby.
(b) Except as specifically amended and modified above, the
Credit Agreement and all other documents, instruments and
agreements executed
and/or
delivered in connection therewith shall remain in full force and
effect, and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall neither operate as a waiver of any right, power
or remedy of the Lenders or the Agent, nor constitute a waiver
of any provision of the Credit Agreement or any other documents,
instruments and agreements executed
and/or
delivered in connection therewith.
5. Costs and Expenses. The Company
agrees to pay all reasonable costs, fees and out-of-pocket
expenses (including attorneys’ fees and expenses charged to
the Agent) incurred by the Agent in connection with the
preparation, arrangement and execution of this Amendment and of
the Agent and the Lenders in connection with the enforcement of
this Amendment.
6. Governing Law. This Amendment
shall be governed by and construed in accordance with the
internal laws (including 735 ILCS Section 105/5-1 et seq.
but otherwise without regards to the conflicts of laws
provisions) of the State of Illinois.
2
7. Headings. Section headings in
this Amendment are included herein for convenience of reference
only and shall not constitute a part of this Amendment for any
other purpose.
8. Counterparts. This Amendment
may be executed by one or more of the parties to the Amendment
on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one
and the same instrument. A facsimile copy of any signature
hereto shall have the same effect as the original of such
signature.
9. No Strict Construction. The
parties hereto have participated jointly in the negotiation and
drafting of this Amendment. In the event an ambiguity or
question of intent or interpretation arises, this Amendment
shall be construed as if drafted jointly by the parties hereto
and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any
provisions of this Amendment.
The
remainder of this page is intentionally blank.
3
Execution
Copy
IN WITNESS WHEREOF, this Amendment has been duly executed as of
the day and year first above written.
XXXXXXXX GOVERNOR COMPANY
| By: |
/s/ Xxxxxx
X. Xxxxx, Xx.
|
Name: Xxxxxx X. Xxxxx, Xx.
| Title: | Chief Financial Officer and Treasurer |
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Administrative Agent and as a Lender
| By: |
/s/ Xxxxxxx
Xxxxxx
|
Name: Xxxxxxx Xxxxxx
| Title: | SVP |
XXXXX FARGO BANK, N.A., as a Lender
| By: |
/s/ Xxxxxxx
Xxxxxxxx
|
Name: Xxxxxxx Xxxxxxxx
| Title: | Relationship Manager |
DEUTSCHE BANK AG NEW YORK BRANCH,
as a Lender
as a Lender
| By: |
/s/ Xxxxx
Xxxxxxxxx
|
Name: Xxxxx Xxxxxxxxx
| Title: | Director |
| By: |
/s/ Xxxx
X. Xxx
|
Name: Xxxx X. Xxx
| Title: | Vice President |
THE NORTHERN TRUST COMPANY, as a Lender
| By: |
/s/ Xxxxx
Xxxxx
|
Name: Xxxxx Xxxxx
| Title: | Second Vice President |
U.S. BANK, NATIONAL ASSOCIATION, as a Lender
| By: |
/s/ Xxxxx
Xxxxx
|
Name: Xxxxx Xxxxx
| Title: | Assistant Vice President |
RBS CITIZENS NA, as a Lender
| By: |
/s/ Xxxxxx
X. Xxxxx
|
Name: Xxxxxx X. Xxxxx
| Title: | Senior Vice President |
FIFTH THIRD BANK, as a Lender
| By: |
/s/ Xxxx
X. Xxxxx
|
Name: Xxxx X. Xxxxx
| Title: | Vice President |
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender
| By: |
/s/ Xxxxxx
Xxxxxxxxxxxx
|
Name: Xxxxxx Xxxxxxxxxxxx
| Title: | Authorized Signatory |
HSBC BANK USA, NATIONAL ASSOCIATION,
as a Lender
as a Lender
| By: |
/s/ Xxxxxx
X. Xxxxx
|
Name: Xxxxxx X. Xxxxx
| Title: | Vice President |
SCHEDULE 6.8
[Intentionally Removed]
[Intentionally Removed]
