Ladish Co., Inc. Third Amendment Dated as of December 21, 2009 to Note Purchase Agreements dated as of July 20, 2001 Re: 6.14% Senior Notes, Series B, due May 16, 2016 6.41% Senior Notes, Series C, due September 2, 2015
Exhibit 10(q)
Execution Version
Xxxxxx Co., Inc.
Third Amendment
Dated as of December 21, 2009
to
Note Purchase Agreements dated as of July 20, 2001
Re: 6.14% Senior Notes, Series B, due May 16, 2016
6.41% Senior Notes, Series C, due September 2, 2015
6.41% Senior Notes, Series C, due September 2, 2015
Table of Contents
(Not a part of this Third Amendment)
| Section | Heading | Page | ||||||
| Section 1. | Amendments To Note Purchase Agreements |
3 | ||||||
| Section 2. | Conditions Precedent |
4 | ||||||
| Section 3. | Representations and Warranties |
5 | ||||||
| Section 4. | Miscellaneous |
6 | ||||||
Schedule I — Name of Holders and Principal Amount of Series B Notes and Series C Notes
2
Dated as of
December 21, 2009
December 21, 2009
To each of the holders
listed in Schedule I to
this Third Amendment
listed in Schedule I to
this Third Amendment
Ladies and Gentlemen:
Reference is made to the separate Note Purchase Agreements, each dated as of July 20, 2001, as
amended by a First Amendment thereto dated as of May 15, 2006, as supplemented by a Series B Terms
Agreement dated as of May 16, 2006, as further supplemented by a Series C Terms Agreement dated as
of September 2, 2008, and as further amended by a Second Amendment thereto dated as of September 2,
2008 (the “Note Purchase Agreements”), by and between Xxxxxx Co., Inc., a Wisconsin corporation
(the “Company”), and each of the purchasers of the $40,000,000 aggregate principal amount of 6.14%
Senior Notes, Series B, due May 16, 2016 (the “Series B Notes”) and each of the purchasers of the
$50,000,000 aggregate principal amount of 6.41% Senior Notes, Series C, due September 2, 2015 (the
“Series C Notes,” and together with the Series B Notes, the “Notes”) of the Company issued pursuant
thereto. Capitalized terms used in this Third Amendment (this “Third Amendment”) without
definition shall have the meanings given such terms in the Note Purchase Agreements.
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company requests the amendment of certain provisions of the Notes and the Note
Purchase Agreements as hereinafter provided.
Upon your acceptance hereof in the manner hereinafter provided and upon satisfaction of all
conditions to the effectiveness hereof and receipt by the Company of similar acceptances from each
of the holders of Notes, this Third Amendment shall be effective, but only in the respects
hereinafter set forth:
Section 1. Amendments To Note Purchase Agreements.
Section 1.1. Section 10.9 of the Note Purchase Agreements is hereby amended and restated in
its entirety as of the date hereof as follows:
“Section 10.9. Consolidated Net Indebtedness to Consolidated Cash Flow.
The Company will not, at the end of any fiscal quarter, permit the ratio of
Consolidated Net Indebtedness determined at such time to Consolidated Cash
Flow determined for the four consecutive fiscal quarters then ended, to exceed
4.00:1.00.”
Section 1.2. The Note Purchase Agreements are hereby amended as of the date hereof by adding
the following Section 22.7 immediately following Section 22.6 appearing in the Note Purchase
Agreements:
3
| Xxxxxx Co., Inc. | Third Amendment |
“Section 22.7. FASB 159. For purposes of determining compliance with the
financial covenants set forth in this Agreement, any election by the Company
to measure any financial liability using fair value (as permitted by Statement
of Financial Accounting Standards No. 159 or any similar accounting standard)
shall be disregarded and such determination shall be made as if such election
had not been made.”
Section 1.3. Schedule B of the Note Purchase Agreements is hereby amended as of the date
hereof by adding a new definition of “Consolidated Net Indebtedness” thereto in property
alphabetical order, as follows:
““Consolidated Net Indebtedness” means, as of the date of any determination thereof, (a) the
total of all Indebtedness of the Company and its Subsidiaries outstanding on such date less (b) the
total of all unrestricted cash and cash equivalents of the Company and its Subsidiaries at such
date, all as determined on a consolidated basis in accordance with GAAP.”
Section 2. Conditions Precedent.
This Third Amendment shall not become effective until, and shall become effective on, the
Business Day when each of the following conditions shall have been satisfied:
(a) Each holder shall have received this Third Amendment, duly executed by the Company.
(b) The Required Holders of each Series of Notes shall have consented to this Third
Amendment as evidenced by their execution thereof.
(c) Each holder of Notes shall have received from the Company a fully earned,
non-refundable amendment fee equal to the sum of the outstanding principal balance of the
Notes held by such holder as of the date hereof multiplied by 0.05%.
(d) The representations and warranties of the Company set forth in Section 3 hereof
shall be true and correct as of the date of the execution and delivery of this Third
Amendment.
(e) Any consents or approvals from any holder or holders of any outstanding security or
indebtedness of the Company and any amendments of agreements pursuant to which any
securities or indebtedness may have been issued which shall be necessary to permit the
consummation of the transactions contemplated hereby shall have been obtained and all such
consents or amendments shall be reasonably satisfactory in form and substance to the holders
and their special counsel.
4
| Xxxxxx Co., Inc. | Third Amendment |
(f) All corporate and other proceedings in connection with the transactions
contemplated by this Third Amendment and all documents and instruments incident to such
transactions shall be satisfactory to you and your special counsel, and you and your special
counsel shall have received all such counterpart originals or certified or other copies of
such documents as you or they may reasonably request.
(g) Each holder shall have received such certificates of officers of the Company as it
may reasonably request with respect to this Third Amendment and the transactions
contemplated hereby.
(h) The Company shall have paid the fees and disbursements of the holders’ special
counsel, Xxxxxxx and Xxxxxx LLP, incurred in connection with the negotiation, preparation,
execution and delivery of this Third Amendment and the transactions contemplated hereby
which fees and disbursements are reflected in the statement of such special counsel
delivered to the Company at the time of the execution and delivery of this Third Amendment.
Section 3. Representations and Warranties.
The Company hereby represents and warrants that as of the date hereof and as of the date of
execution and delivery of this Third Amendment:
(a) The Company is duly incorporated, validly existing and in active status under the
laws of its jurisdiction of incorporation.
(b) This Third Amendment, the Note Purchase Agreements, as amended hereby, and the
transactions contemplated hereby are within the corporate power of the Company, have been
duly authorized by all necessary corporate action on the part of the Company, and this Third
Amendment and the Note Purchase Agreements, as amended hereby, have been duly executed and
delivered by the Company and constitute legal, valid and binding obligations of the Company
enforceable in accordance with their respective terms.
(c) Immediately prior to and after giving effect to this Third Amendment, there are no
Defaults or Events of Default under the Note Purchase Agreements, as amended hereby.
(d) The execution, delivery and performance of this Third Amendment and the Note
Purchase Agreements, as amended hereby, by the Company does not and will not result in a
violation of or default under (i) the articles of incorporation or bylaws of the Company,
(ii) any agreement to which the Company is a party or by which it is bound or to which the
Company or any of its properties is subject, (iii) any order, writ, injunction or decree
binding on the Company, or (iv) any statute, regulation, rule or other law applicable to the
Company.
5
| Xxxxxx Co., Inc. | Third Amendment |
(e) No consent, approval or authorization of, or registration, filing or declaration
with, any Governmental Authority is required in connection with the execution, delivery or
performance by the Company of this Third Amendment and the Note Purchase Agreements, as
amended hereby.
(f) The Company has not paid or agreed to pay any fees or other consideration, or given
any additional security or collateral, or shortened the maturity or average life of any
indebtedness or permanently reduced any borrowing capacity, in each case, in connection with
the obtaining of any consents or approvals of any Person in connection with the transactions
contemplated hereby, other than (i) to the lenders under the Credit Agreement in the amount
of $35,000 and (ii) to the holders of the Notes of the amendment fee described in Section
2(c) hereof.
(g) Other than this Third Amendment and the amendments and supplements identified in
the Preamble to this Third Amendment, there are no other amendments, modifications,
supplements or waivers to the Note Purchase Agreements or the Notes.
Section 4. Miscellaneous.
Section 4.1. Except as amended herein, all terms and provisions of the Note Purchase
Agreements, the Notes and related agreements and instruments are hereby ratified, confirmed and
approved in all respects.
Section 4.2. Each reference in the Note Purchase Agreements to “this Agreement,” “hereunder,”
“hereof,” or words of similar import in instruments or documents provided for in the Note Purchase
Agreements or delivered or to be delivered thereunder or in connection therewith, shall, except
where the context otherwise requires, be deemed a reference to the Note Purchase Agreement, as
amended hereby.
Section 4.3. This Third Amendment shall be governed by and construed in accordance with the
internal laws of the State of Wisconsin.
Section 4.4. This Third Amendment and all covenants herein contained shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties hereunder and all
holders of additional Series of Notes. All representations, warranties and covenants made by the
Company herein shall survive the closing and the delivery of this Third Amendment.
Section 4.5. This Third Amendment may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which, taken together, shall constitute but one and
the same Third Amendment. Delivery of an executed counterpart of this Third Amendment by facsimile
shall be as effective as delivery of a manually executed counterpart of this Third Amendment.
[Signature Page Follows]
6
| Xxxxxx Co., Inc. | Third Amendment |
The execution hereof by the holders shall constitute a contract among the Company and the
holders for the uses and purposes hereinabove set forth.
| Xxxxxx Co., Inc. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President Law/Finance & Secretary | |||
[Signature page to Third Amendment]
7
| Xxxxxx Co., Inc. | Third Amendment |
This foregoing Third Amendment is hereby accepted and agreed to as of the date aforesaid. The
execution by each holder listed below shall constitute its respective several and not joint
confirmation that it is the owner and holder of the Notes set opposite its name on Schedule I
hereto.
Accepted as of the date first written above.
| Teachers Insurance and Annuity Association of America |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Director | |||
[Signature page to Third Amendment]
8
| Xxxxxx Co., Inc. | Third Amendment |
Accepted as of the date first written above.
| First Great-West Life & Annuity Insurance Company |
||||
| By: | /s/ Xxx X. Xxxxxxx | |||
| Name: | Xxx X. Xxxxxxx | |||
| Title: | Vice President, Investments | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Asst. Vice President, Investments | |||
[Signature page to Third Amendment]
9
| Xxxxxx Co., Inc. | Third Amendment |
Accepted as of the date first written above.
| London Life Insurance Company |
||||
| By: | /s/ B. R. Xxxxxxx | |||
| Name: | B. R. Xxxxxxx | |||
| Title: | Authorized Signatory | |||
| By: | /s/ D. B. E. Xxxxx | |||
| Name: | D. B. E. Xxxxx | |||
| Title: | Authorized Signatory | |||
[Signature page to Third Amendment]
10
| Xxxxxx Co., Inc. | Third Amendment |
Accepted as of the date first written above.
| Thrivent Financial for Lutherans |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Senior Director | |||
[Signature page to Third Amendment]
11
| Xxxxxx Co., Inc. | Third Amendment |
Accepted as of the date first written above.
| The Prudential Insurance Company of America |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
| Pruco Life Insurance Company |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
| United of Omaha Life Insurance Company |
||||
| By: | Prudential Private Placement Investors, | |||
| L.P. (as Investment Advisor) | ||||
| By: | Prudential Private Placement Investors, Inc. | |||
| (as its General Partner) | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
[Signature page to Third Amendment]
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| Xxxxxx Co., Inc. | Third Amendment |
| Outstanding Principal Amount of Series | ||||
| B Notes Held as of | ||||
| Name of Holder | December 21, 2009 | |||
London Life Insurance Company |
$ | 7,500,000 | ||
Teachers Assurance and Annuity Association of America |
$ | 25,000,000 | ||
First Great-West Life & Annuity Insurance Company |
$ | 7,500,000 | ||
Total |
$ | 40,000,000 | ||
| Outstanding Principal Amount of Series | ||||
| C Notes Held as of | ||||
| Name of Holder | December 21, 2009 | |||
Swanbird & Co (as nominee for Thrivent Financial for Lutherans) |
$ | 23,000,000 | ||
The Prudential Insurance Company of America |
$ | 15,250,000 | ||
Pruco Life Insurance Company |
$ | 5,000,000 | ||
United of Omaha Life Insurance Company |
$ | 6,750,000 | ||
Total |
$ | 50,000,000 | ||
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