Exhibit 10.1
EXECUTION VERSION
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This Amendment (this "Amendment") is entered into as of April 21, 2004 by
and among Xxxxxxx & Xxxxx, Inc., an Ohio corporation (the "Borrower"), Xxxxxxx &
Xxxxx Finance Europe B.V., a Netherlands corporation (the "Subsidiary
Borrower"), Bank One, NA, individually and as administrative agent (the
"Agent"), and the other financial institutions signatory hereto.
RECITALS
A. The Borrower, the Subsidiary Borrower, the Agent and the Lenders are
party to that certain Third Amended and Restated Credit Agreement dated as of
October 7, 2003 (the "Credit Agreement"). Unless otherwise specified herein,
capitalized terms used in this Amendment shall have the meanings ascribed to
them by the Credit Agreement.
B. The Borrower, the Subsidiary Borrower, the Agent and the undersigned
Lenders wish to amend the Credit Agreement on the terms and conditions set forth
below.
Now, therefore, in consideration of the mutual execution hereof and other
good and valuable consideration, the parties hereto agree as follows:
1. Amendment to Credit Agreement. Upon the "Effective Date" (as defined
below), the Credit Agreement shall be amended as follows:
(a) Each of the following terms defined in Section 1.01 of the Credit
Agreement is amended in its entirety to read as follows:
"Consolidated EBIT" shall mean, for any period for any person,
Consolidated Net Income of such person for such period, plus, to the
extent deducted in computing Consolidated Net Income for such period, the
sum of (i) Consolidated Interest Expense for such period, (ii) Cash Tax
Expense for such period, and (iii) [ ** ], minus, to the extent added in
computing such Consolidated Net Income for such period, the sum of (i) any
interest income and (ii) any non-cash income or non-cash gains during such
period that requires footnote disclosure on financial statements, reports
or other filings pursuant to or in accordance with GAAP or applicable SEC
regulations, all as determined on a
consolidated basis with respect to such person and its Consolidated
Subsidiaries in accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period for any person,
Consolidated Net Income of such person for such period, plus, to the
extent deducted in computing such Consolidated Net Income for such period,
the sum of (i) Consolidated Interest Expense for such period, (ii) Cash
Tax Expense for such period, (iii) [ ** ], and (iv) depreciation,
depletion, amortization of intangibles and other non-cash charges or
non-cash losses, minus, to the extent added in computing such Consolidated
Net Income for such period, the sum of (i) any interest income, and (ii)
any non-cash income or non-cash gains during such period that requires
footnote disclosure on financial statements, reports or other filings
pursuant to or in accordance with GAAP or applicable SEC regulations, all
as determined on a consolidated basis with respect to such person and its
Consolidated Subsidiaries in accordance with GAAP.
(b) The definition of Consolidated Net Income set forth in Section 1.01 of
the Credit Agreement is amended by deleting clause (f) in its entirety and
replacing it with the following new clause (f):
(f) up to $2,500,000 of non-recurring cash charges which have been
previously specifically identified by the Borrower to the Administrative
Agent in writing and which are incurred through the fiscal quarter ending
November 30, 2004.
(c) Section 1.01 of the Credit Agreement is amended by inserting the
following new definition therein in alphabetical order:
[ ** ]
(d) Section 6.13(a) is amended in its entirety to read as follows:
(a) Consolidated Fixed Charge Coverage Ratio. The Borrower will not
permit the Consolidated Fixed Charge Coverage Ratio (i) to be less than
2.00 to 1.00 for any Reference Period ending on or prior to May 31, 2005,
(ii) to be less than 2.25 to 1.0 for any Reference Period ending after May
31, 2005 and on or prior to November 30, 2005, or (iii) to be less than
2.50 to 1.0 for any Reference Period ending thereafter.
(e) Section 6.13(b) is amended in its entirety to read as follows:
(b) Consolidated Leverage Ratio. The Borrower will not permit the
Consolidated Leverage Ratio to exceed 4.00 to 1.00 for any Reference
Period ending on or prior to May 31, 2005 (ii) to exceed 3.75 to 1.0 for
any Reference Period ending after May 31, 2005 and on or prior to November
30, 2005, or (iii) to exceed 3.5 to 1.0 for any Reference Period ending
thereafter.
2. Waiver. The Lenders hereby waive any breach of [ ** ] the Credit
Agreement arising solely out of [ ** ] and agree that [ ** ] shall be excluded
from [ ** ].
3. Release of Guaranty; Termination of Pledge Agreements; Release of
Collateral. The Lenders hereby confirm and ratify the authority of the
Collateral Agent to, and direct the Collateral Agent to, effective upon the
consummation of the [ ** ] (i) release [ ** ] from any and all obligations under
that certain Amended and Restated Guarantee Agreement dated as of May 15, 1998
and (ii) release the lien of the Pledge Agreement upon all previously pledged
shares and Intercompany Notes of [ ** ] and deliver such pledged shares and
Intercompany Notes to the Borrower. Notwithstanding the foregoing, the
provisions of this Section 2 shall not be deemed to be a release of any other
collateral granted to the Collateral Agent pursuant to any Collateral Document.
4. Representations and Warranties of the Borrowers. Each of the Borrowers
represents and warrants that:
(a) The execution, delivery and performance by such Borrower of this
Amendment have been duly authorized by all necessary corporate action and that
this Amendment is a legal, valid and binding obligation of such Borrower
enforceable against such Borrower in accordance with its terms, except as the
enforcement thereof may be subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditors'
rights generally;
(b) Each of the representations and warranties contained in the Credit
Agreement is true and correct in all material respects on and as of the date
hereof as if made on the date hereof;
(c) Neither the execution, delivery and performance of this Amendment nor
the consummation of the transactions contemplated hereby does or shall conflict
with or breach any of the terms of the Senior Notes or Subordinated Notes;
(d) After giving effect to this Amendment, no Default or Event of Default
has occurred and is continuing.
5. Effective Date. This Amendment shall become effective upon the
execution and delivery hereof by the Borrower, the Subsidiary Borrower, the
Agent and the Required Lenders (without respect to whether it has been executed
and delivered by all the Lenders); provided that Sections 1 and 2 hereof shall
not become effective until the date (the "Effective Date") when the following
additional conditions have also been satisfied:
(a) Each of the Guarantors has executed and delivered a reaffirmation of
Guaranty in the form of Exhibit A hereto.
(b) The Borrower has paid to the Agent (for the benefit of each Lender
signatory hereto as of the Effective Date) an amendment fee equal to 0.125% of
such Lender's Commitment on the Effective Date and has paid such other fees
relating to this Amendment as may be separately agreed to, which fees shall be
deemed fully earned and non-refundable on the Effective Date.
6. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically amended or waived above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the Agent or any Lender
under the Credit Agreement or any Loan Document, nor constitute a waiver of any
provision of the Credit Agreement or any Loan Document, except as specifically
set forth herein. Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of similar import shall mean and be a reference to the Credit Agreement as
amended hereby.
7. Costs and Expenses. The Borrower hereby affirms its obligation under
Section 9.05 of the Credit Agreement to reimburse the Agent for all reasonable
costs, internal charges and out-of-pocket expenses paid or incurred by the Agent
in connection with the preparation, negotiation, execution and delivery of this
Amendment, including but not limited to the attorneys' fees and time charges of
attorneys for the Agent with respect thereto.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
9. 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 purposes.
10. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument.
[signature pages follow]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
XXXXXXX & XXXXX, INC.,
AS BORROWER
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Finance,
Chief Financial
Officer
XXXXXXX & XXXXX FINANCE EUROPE B.V., AS
SUBSIDIARY BORROWER
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: Attorney-in-fact
pursuant to Power of
Attorney
[Signature Page to Xxxxxxx & Xxxxx, Inc.
Amendment No. 1 to Credit Agreement]
BANK ONE, NA, AS ADMINISTRATIVE AGENT,
ISSUING BANK AND LENDER
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director,
Senior Underwriter
[Signature Page to Xxxxxxx & Xxxxx, Inc.
Amendment No. 1 to Credit Agreement]
XXXXXX TRUST AND
SAVINGS BANK
By: /s/ Xxxxxx X. Olahy
-----------------------------
Name: Xxxxxx X. Olahy
Title: Vice President
Address: 000 Xxxx Xxxxxx Xx.
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
[Signature Page to Xxxxxxx & Xxxxx, Inc.
Amendment No. 1 to Credit Agreement]
NATIONAL CITY BANK
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Name: Xxxx X. Xxxxxx
Title: Sr. Vice President
Address: 0 X. Xxxx Xxxxxx
Xxxxxx, Xxxx 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
[Signature Page to Xxxxxxx & Xxxxx, Inc.
Amendment No. 1 to Credit Agreement]
WACHOVIA BANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
Address: 000 X. Xxxxxxx Xx. XX-0
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
[Signature Page to Xxxxxxx & Xxxxx, Inc.
Amendment No. 1 to Credit Agreement]
THE BANK OF NOVA SCOTIA
By: /s/ X. Xxxxxx
-----------------------------
Name: X. Xxxxxx
Title: Assistant Agent
Address: 000 Xxxxxxxxx Xx., X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
[Signature Page to Xxxxxxx & Xxxxx, Inc.
Amendment No. 1 to Credit Agreement]
FIFTH THIRD BANK (WESTERN OHIO)
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Address: 000 X. Xxxx Xx.
XX 000000
Xxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
[Signature Page to Xxxxxxx & Xxxxx, Inc.
Amendment No. 1 to Credit Agreement]
UNICREDITO ITALIANO,
NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxx Papa
-----------------------------
Name: Xxxxxx Xxxxxx Papa
Title: Senior Vice President,
Branch Manager
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Address: 000 Xxxx Xxx.
0xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
[Signature Page to Xxxxxxx & Xxxxx, Inc.
Amendment No. 1 to Credit Agreement]
EXHIBIT A
REAFFIRMATION OF GUARANTY
Each of the undersigned acknowledges receipt of a copy of Amendment No. 1
to Third Amended and Restated Credit Agreement dated as of April 21, 2004 (the
"Amendment"), consents to such amendment and each of the transactions referenced
therein and hereby reaffirms its obligations under the Guarantee Agreement dated
as of May 15, 1998 (as defined in the Amendment).
Dated as of April 21, 2004
PFAUDLER, INC.
By _____________________________________
Name:
Title:
EDLON, INC.
By:_____________________________________
Name:
Title:
GLASTEEL PARTS AND SERVICES, INC.
By:_____________________________________
Name:
Title:
E.C. MOTORS, INC.
By:_____________________________________
Name:
Title:
INDEX MANUFACTURING CO., INC.
By:_____________________________________
Name:
Title:
MOYNO, INC.
By:_____________________________________
Name:
Title:
PIEPENBROCK ENTERPRISES, INC.
By:_____________________________________
Name:
Title:
R&M ENVIRONMENTAL STRATEGIES, INC.
By:_____________________________________
Name:
Title:
XXXXXXX & XXXXX ENERGY SYSTEMS, INC.
By:_____________________________________
Name:
Title:
XXXXX OF DELAWARE, INC.
By:_____________________________________
Name:
Title:
XXXXXXX & XXXXX ENERGY SYSTEMS, L.P.
By: Xxxxxxx & Xxxxx Energy Systems,
Inc., as general partner
By:_________________________________
Name:
Title:
XXXXXXX & XXXXX HOLDINGS, INC.
By:_____________________________________
Name:
Title:
ROMACO, INC.
By:_____________________________________
Name:
Title:
