Exhibit 10.2
FIRST AMENDMENT TO
LOAN AGREEMENT
This FIRST AMENDMENT TO LOAN AGREEMENT (this "Agreement") is entered
into and effective as of January 24, 2003, by and among Xxxxxxxx Corporation, a
Missouri corporation ("Borrower"), LaSalle Bank National Association
("LaSalle"), as Administrative Agent ("Administrative Agent"), and LaSalle and
the other lenders listed on the signature page hereto (the "Lenders").
RECITALS:
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A. Borrower, Administrative Agent and Lenders are party to that certain
Loan Agreement dated as of May 30, 2002 (the "Original Loan
Agreement").
B. Administrative Agent, Lenders and Borrower have agreed to the
provisions set forth herein on the terms and conditions contained
herein.
AGREEMENT
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Therefore, in consideration of the mutual agreements herein and other
sufficient consideration, the receipt of which is hereby acknowledged, Borrower,
Administrative Agent and the Lenders hereby agree as follows:
1. DEFINITIONS. All references to the "Agreement" or the "Loan Agreement" in the
Original Loan Agreement and in this Agreement shall be deemed to be references
to the Original Loan Agreement as it may be amended, restated, extended,
renewed, replaced, or otherwise modified from time to time. Capitalized terms
used and not otherwise defined herein have the meanings given them in the
Original Loan Agreement.
2. EFFECTIVENESS OF AGREEMENT. This Agreement shall become effective as of the
date first written above, but only if this Agreement has been executed by
Borrower, Administrative Agent and the Lenders, and only if all of the documents
listed on Exhibit A to this Agreement have been delivered and, as applicable,
executed, sealed, attested, acknowledged, certified, or authenticated, each in
form and substance satisfactory to Administrative Agent and the Lenders.
3. AMENDMENTS. The Original Loan Agreement is hereby amended as follows:
3.1. LETTER OF CREDIT FACILITY. The first sentence of Section 3.3.1
of the Original Loan Agreement is deleted and replaced with the following:
"Letter of Credit Issuer commits to issue standby letters of credit and
commercial (documentary) letters of credit for the account of Borrower
from time to time from the Effective Date to the Revolving Loan
Maturity Date, but only if the Letter of Credit Exposure will not as a
result of such issuance exceed the lesser of (i) Twenty Five Million
Dollars ($25,000,000) and (ii) an amount equal to the difference
between (a) the Aggregate Revolving Loan Commitment, and (b) the
Aggregate Revolving Loan plus the Swingline Loan."
4. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby represents and
warrants to Administrative Agent and the Lenders that (i) Borrower's execution,
delivery and performance of this
Agreement has been duly authorized by all requisite action of Borrower, (ii)
no consents are necessary from any third parties for Borrower's execution,
delivery or performance of this Agreement, (iii) this Agreement, the Loan
Agreement, and each of the other Loan Documents, constitute the legal, valid
and binding obligations of Borrower enforceable against Borrower in
accordance with their terms, except to the extent that the enforceability
thereof against Borrower may be limited by bankruptcy, insolvency or other
laws affecting the enforceability of creditors rights generally or by equity
principles of general application, (iv) except as disclosed on the
supplemental disclosure schedule attached hereto as Exhibit B and the
disclosure schedule attached to the Original Loan Agreement, all of the
representations and warranties contained in Section 10 of the Loan Agreement
are true and correct with the same force and effect as if made on and as of
the date of this Agreement, (v) after giving effect to this Agreement, there
is no Existing Default, and (vi) since the Effective Date, there has been no
change or modification to the Charter Documents of Borrower or any other
Covered Person.
5. REAFFIRMATION. Borrower hereby represents, warrants, acknowledges and
confirms that (i) the Loan Agreement and the other Loan Documents remain in full
force and effect, (ii) Borrower has no defenses to its obligations under the
Loan Agreement and the other Loan Documents, and (iii) Borrower has no claim
against Administrative Agent or any Lender arising from or in connection with
the Loan Agreement or the other Loan Documents and any such claim is hereby
irrevocably waived and released and discharged forever.
6. GOVERNING LAW. This Agreement has been deemed to be executed and delivered in
Chicago, Illinois, and shall be governed by and construed under the laws of the
State of Illinois without giving effect to choice or conflicts of law principles
thereunder.
7. SECTION TITLES. The section titles in this Agreement are for convenience of
reference only and shall not be construed so as to modify any provisions of this
Agreement.
8. COUNTERPARTS; FACSIMILE TRANSMISSIONS. This Agreement may be executed in one
or more counterparts and on separate counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument. Signatures to this Agreement may be given by facsimile or other
electronic transmission, and such signatures shall be fully binding on the party
sending the same.
9. INCORPORATION BY REFERENCE. Administrative Agent, Lenders and Borrower hereby
agree that all of the terms of the Loan Documents are incorporated in and made a
part of this Agreement by this reference.
10. FEES AND EXPENSES. Borrower shall promptly pay to Administrative Agent all
fees, expenses and other amounts owing to Administrative Agent under the Loan
Agreement and the other Loan Documents, including, without limitation, all fees,
costs and expenses incurred by Administrative Agent in connection with the
preparation, negotiation, execution, and delivery of this Agreement.
11. NOTICE--ORAL COMMITMENTS NOT ENFORCEABLE. Nothing contained in the following
notice shall be deemed to limit or modify the terms of the Loan Documents:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND
OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER) AND
US (CREDITOR) FROM MISUNDERSTANDING
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OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE
CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE
IN WRITING TO MODIFY IT.
Borrower acknowledges that there are no other agreements between
Administrative Agent, Lenders, and Borrower, oral or written, concerning the
subject matter of the Loan Documents, and that all prior agreements concerning
the same subject matter, including any proposal or commitment letter, are
merged into the Loan Documents and thereby extinguished.
12. STATUTORY NOTICE-INSURANCE. The following notice is given pursuant to
Section 10 of the Collateral Protection Act set forth in Chapter 815 Section
180/1 of the Illinois Compiled Statutes (1996); nothing contained in such notice
shall be deemed to limit or modify the terms of the Loan Documents:
UNLESS YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY YOUR
AGREEMENT WITH US, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT
OUR INTERESTS IN YOUR COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT,
PROTECT YOUR INTERESTS. THE COVERAGE THAT WE PURCHASE MAY NOT PAY ANY
CLAIM THAT YOU MAKE OR ANY CLAIM THAT IS MADE AGAINST YOU IN CONNECTION
WITH THE COLLATERAL. YOU MAY LATER CANCEL ANY INSURANCE PURCHASED BY
US, BUT ONLY AFTER PROVIDING EVIDENCE THAT YOU HAVE OBTAINED INSURANCE
AS REQUIRED BY OUR AGREEMENT. IF WE PURCHASE INSURANCE FOR THE
COLLATERAL, YOU WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE,
INCLUDING THE INSURANCE PREMIUM, INTEREST AND ANY OTHER CHARGES WE MAY
IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE
EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE
COSTS OF THE INSURANCE MAY BE ADDED TO YOUR TOTAL OUTSTANDING BALANCE
OR OBLIGATION. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF
INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN.
{REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE IMMEDIATELY FOLLOWS}
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
XXXXXXXX CORPORATION, A MISSOURI CORPORATION, AS BORROWER
By: /s/ X. X. Xxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxx
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Title: Senior Vice President - Finance and Administration & CFO
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LASALLE BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT AND A LENDER
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
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Title: Assistant Vice President
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UMB BANK, NATIONAL ASSOCIATION, A LENDER
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Executive Vice President
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XXXXX FARGO BANK, N.A., A LENDER
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Vice President
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EXHIBIT A
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DOCUMENTS AND REQUIREMENTS
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1. First Amendment to Loan Agreement.
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EXHIBIT B
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DISCLOSURE SCHEDULE
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None, if nothing listed.
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