FIRST AMENDMENT
Exhibit 10.1
FIRST AMENDMENT
THIS FIRST AMENDMENT dated as of March 18, 2005 (this “Amendment”) is to the Term Loan Agreement (the “Loan Agreement”) dated as of February 11, 2005 among XXXXXX & XXXXXXXX CORPORATION, a Wisconsin corporation (the “Company”), various financial institutions and BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”). Capitalized terms used but not defined herein have the respective meanings set forth in the Loan Agreement.
WHEREAS, the Company, the Banks and the Administrative Agent have entered into the Loan Agreement; and
WHEREAS, the parties hereto desire to amend the Loan Agreement to (a) add the parties listed on the signatures hereof under the heading “New Banks” (collectively the “New Banks”) as “Banks” thereunder; and (b) make certain other changes as set forth herein;
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENT. Effective on (and subject to the occurrence of) the Amendment Effective Date (as defined below), the Loan Agreement shall be amended as set forth below.
1.1 Cover Page. The cover page of the Loan Agreement is amended by inserting the following under the line reading “THE FINANCIAL INSTITUTIONS PARTY HERETO,”:
“U.S. BANK NATIONAL ASSOCIATION,
as Documentation Agent,”
1.2 Section 8.11.3. Section 8.11.3 is amended in its entirety to read as follows:
“Minimum Net Worth. The Company shall not at any time permit Consolidated Net Worth to be less than the sum of (i) $575,000,000 plus (ii) 50% of Consolidated Net Income earned in each full fiscal quarter ending after May 28, 2004 (with no deduction for a net loss in any such fiscal quarter) plus (iii) the proceeds of any Equity Issuance after May 28, 2004 (net of the direct costs of such issuance, such as sales and underwriter’s commissions and legal, accounting and investment banking fees).”
1.3 Section 10.13. Section 10.13 is amended in its entirety to read as follows:
“Other Agents. None of the Banks identified on the cover page or the signature pages of this Agreement or otherwise herein, or in any amendment hereof or other document related hereto, as being the “Documentation Agent” or the “Syndication Agent” (collectively, the “Other Agents”) shall have any right, power, obligation, liability, responsibility or duty under this Agreement in such capacity other than those applicable to all Banks. Without limiting the
foregoing, none of the Banks or other Persons so identified shall have or be deemed to have any fiduciary relationship with any Bank. Each Bank acknowledges that it has not relied, and will not rely, on any Other Agent in deciding to enter into this Agreement or in taking or not taking action hereunder.”
1.4 Schedule 2.1. Schedule 2.1 is replaced by Schedule 2.1 attached hereto.
1.5 Schedule 11.2. Schedule 11.2 is replaced by Schedule 11.2 attached hereto.
SECTION 2 REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to the Administrative Agent and the Banks on the Amendment Effective Date that (a) the representations and warranties made in Section 6 of the Loan Agreement are true and correct on and as of the Amendment Effective Date with the same effect as if made on and as of the Amendment Effective Date (except to the extent such representations and warranties expressly refer to an earlier date, in which case they were true and correct as of such earlier date); (b) no Event of Default or Default exists or will result from the execution and delivery of this Amendment; (c) no event or circumstance has occurred since the Closing Date that has resulted, or would reasonably be expected to result, in a Material Adverse Effect; (d) the execution and delivery by the Company of this Amendment, the execution and delivery by the Company of the New Notes (as defined below), the performance by the Company of its obligations under the Loan Agreement as amended hereby (as so amended, the “Amended Agreement”) and under the New Notes (i) are within the corporate powers of the Company, (ii) have been duly authorized by all necessary corporate action on the part of the Company, (iii) have received all necessary governmental approval and (iv) do not and will not (x) contravene the terms of the Organization Documents of the Company, (y) conflict with or result in any breach or contravention of, or the creation of any Lien under, any document evidencing any material Contractual Obligation to which the Company or any of its Subsidiaries is a party or any order, injunction, writ or decree of any Governmental Authority to which the Company or any of its Subsidiaries or its property is subject or (z) violate any Requirement of Law applicable to the Company or any of its Subsidiaries; and (e) each of the Amended Agreement and each New Note is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.
SECTION 3 EFFECTIVENESS. The amendments set forth in Section 1 above shall become effective on the date (the “ Amendment Effective Date”) when the Administrative Agent shall have received (a) a counterpart of this Amendment executed by each of the parties hereto (or, in the case of any party from which the Administrative Agent has not received a counterpart hereof, facsimile confirmation of the execution of a counterpart hereof by such party) and (b) each of the following documents, each in form and substance satisfactory to the Administrative Agent:
3.1 Notes. New Notes, substantially in the form of Exhibit A to the Loan Agreement, payable to the order of each Bank requesting the same pursuant to Section 3.2 of the Amended Agreement (collectively, the “New Notes”).
2
3.2 Confirmation. A Confirmation substantially in the form of Attachment 1 hereto, signed by each Guarantor.
3.3 Other Documents. Such other documents as the Administrative Agent or any Bank (including any New Bank) may reasonably request in connection with the Company’s authorization, execution and delivery of this Amendment.
SECTION 4 ADDITION OF BANKS. On the Amendment Effective Date, (a) each New Bank (i) shall deliver to the Administrative Agent immediately available funds in the amount of its Percentage (after giving effect hereto) of all outstanding Loans on such date, (ii) it shall become a “Bank” under and for all purposes of the Amended Agreement and (iii) it shall be bound by the Amended Agreement, and shall be entitled to the benefits of the Amended Agreement and each other Loan Document, as if it were an original party to the Loan Agreement; and (b) the amount of each Bank’s Loan and each Bank’s Percentage shall be as set forth on Schedule 2.1 hereto.
SECTION 5 MISCELLANEOUS.
5.1 Continuing Effectiveness, etc. As herein amended, the Loan Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects. After the Amendment Effective Date, all references in the Loan Agreement, each other Loan Document and any related document to the “Loan Agreement” or similar terms shall refer to the Amended Agreement.
5.2 Counterparts. This Amendment may be executed in any number of counterparts and by the different parties on separate counterparts, and each such counterpart shall be deemed to be an original but all such counterparts shall together constitute one and the same Amendment.
5.3 Expenses. The Company agrees to pay the reasonable costs and expenses of the Administrative Agent (including Attorney Costs) in connection with the preparation, execution and delivery of this Amendment.
5.4 Governing Law. This Amendment shall be a contract made under and governed by the internal laws of the State of Illinois.
5.5 Successors and Assigns. This Amendment shall be binding upon the Company, the Banks and the Administrative Agent and their respective successors and assigns, and shall inure to the benefit of the Company, the Banks and the Administrative Agent and the successors and assigns of the Banks and the Administrative Agent.
5.6 Existing Banks. Each of Bank of America, N.A., in its individual capacity, and LaSalle Bank National Association (each, an “Existing Bank”) represents and warrants to each New Bank (and not to any other Person) that (a) immediately prior to the effectiveness hereof, it is the legal and beneficial owner of 75% and 25%, respectively, of the outstanding Loans under the Loan Agreement, free and clear of any Lien; (b) immediately after giving effect to the effectiveness hereof (assuming that each New Bank performs its obligations hereunder), the amount of its Loan and its Percentage shall be as set forth on Schedule 2.1; and (c) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment
3
and to consummate the transactions contemplated hereby (including the reallocation of the Loans as contemplated herein). Each New Bank represents and warrants to each Existing Bank that (i) it has received a copy of the Loan Agreement, together with copies of such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii) it has made such analysis and decision independently and without reliance on the Administrative Agent, any Existing Bank or any other New Bank; and (iii) it will perform in accordance with their terms all of its obligations under the Loan Agreement. Each New Bank acknowledges and agrees that all interest accrued prior to the Amendment Effective Date is for the account of the Existing Banks.
[Signature Pages Follow]
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the day and year first above written.
| XXXXXX & XXXXXXXX CORPORATION | ||
| By: |
/s/ Xxxxxx X Xxxxxx | |
| Name: |
Xxxxxx X. Xxxxxx | |
| Title: |
Treasurer | |
First Amendment to Term Loan Agreement
| BANK OF AMERICA, N.A., as Administrative Agent and a Bank | ||
| By: |
/s/ Xxxxxxx X. Xxxxxxxx | |
| Name: |
Xxxxxxx X. Xxxxxxxx | |
| Title: |
Senior Vice President | |
First Amendment to Term Loan Agreement
| LASALLE BANK NATIONAL ASSOCIATION, as Syndication Agent and a Bank | ||
| By: |
/s/ Xxx Xxxxxxx | |
| Name: |
Xxx Xxxxxxx | |
| Title: |
Vice President | |
First Amendment to Term Loan Agreement
| “NEW BANKS”: | ||
| M&I XXXXXXXX & ILSLEY BANK | ||
| By: |
/s/ Xxxxxx X. Xxxxx | |
| Name: |
Xxxxxx X. Xxxxx | |
| Title: |
Vice President | |
| By: |
/s/ Xxxxxx X. Xxxxxxxxxxx | |
| Name: |
Xxxxxx X. Xxxxxxxxxxx | |
| Title: |
Vice President | |
First Amendment to Term Loan Agreement
| U.S. BANK NATIONAL ASSOCIATION, as Documentation Agent and a Bank | ||
| By: |
/s/ Xxxxxx X. Xxxxxx | |
| Name: |
Xxxxxx X. Xxxxxx | |
| Title: |
Vice President | |
First Amendment to Term Loan Agreement
| ASSOCIATED BANK NA | ||
| By: |
/s/ Xxxxxx Xxxxxxxxx | |
| Name: |
Xxxxxx Xxxxxxxxx | |
| Title: |
Assistant Vice President | |
First Amendment to Term Loan Agreement
| THE BANK OF NEW YORK | ||
| By: |
/s/ Xxxx Xxxxxxx | |
| Name: |
Xxxx Xxxxxxx | |
| Title: |
Vice President | |
First Amendment to Term Loan Agreement
| NATIONAL CITY BANK OF THE MIDWEST | ||
| By: |
/s/ Xxx X. Xxxxxx | |
| Name: |
Xxx X. Xxxxxx | |
| Title: |
Senior Vice President | |
First Amendment to Term Loan Agreement
| JPMORGAN CHASE BANK, N.A. | ||
| By: |
/s/ Xxxx Xxxxx | |
| Name: |
Xxxx Xxxxx | |
| Title: |
Vice President | |
First Amendment to Term Loan Agreement
| BNP PARIBAS | ||
| By: |
/s/ Xxxxxxx Xxxx | |
| Name: |
Xxxxxxx Xxxx | |
| Title: |
Managing Director | |
| By: |
/s/ Xxxx Xxxxxxxx | |
| Name: |
Xxxx Xxxxxxxx | |
| Title: |
Vice President | |
First Amendment to Term Loan Agreement
| XXXXXX TRUST AND SAVINGS BANK | ||
| By: |
/s/ Xxxxxx X. Xxxxx | |
| Name: |
Xxxxxx X. Xxxxx | |
| Title: |
Vice President | |
First Amendment to Term Loan Agreement
| FIFTH THIRD BANK | ||
| By: |
/s/ Xxxxx X. Xxxxxx | |
| Name: |
Xxxxx X. Xxxxxx | |
| Title: |
Vice President | |
First Amendment to Term Loan Agreement
SCHEDULE 2.1
LOANS / PERCENTAGES
| Bank |
Loan |
Percentage |
||||
| Bank of America, N.A. |
$ | 14,062,500 | 11.25 | % | ||
| LaSalle Bank National Association |
$ | 15,625,000 | 12.50 | % | ||
| US Bank, N.A. |
$ | 14,062,500 | 11.25 | % | ||
| M&I Xxxxxxxx & Ilsley Bank |
$ | 3,125,000 | 2.50 | % | ||
| JPMorgan Chase Bank, N.A. |
$ | 15,625,000 | 12.50 | % | ||
| BNP Paribas |
$ | 17,187,500 | 13.75 | % | ||
| Associated Bank N.A. |
$ | 9,375,000 | 7.50 | % | ||
| The Bank of New York |
$ | 9,062,500 | 7.25 | % | ||
| National City Bank of the Midwest |
$ | 1,875,000 | 1.50 | % | ||
| Xxxxxx Trust and Savings Bank |
$ | 15,625,000 | 12.50 | % | ||
| Fifth Third Bank |
$ | 9,375,000 | 7.50 | % | ||
| TOTAL |
$ | 125,000,000 | 100 | % | ||
SCHEDULE 11.2
LENDING OFFICES; ADDRESSES FOR NOTICES
XXXXXX & XXXXXXXX CORPORATION
00000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA, N.A., as Administrative Agent and as a Bank
Operations Contact:
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Agency Management Services:
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Mail Code CA5-701-05-19
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit Contact:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ASSOCIATED BANK NA
Operations Contact:
0000 Xxxxxxxx Xxx
Xxxxx Xxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit Contact:
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
JPMORGAN CHASE BANK, N.A.
Operations Contact:
000 X. Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit Contact:
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BNP PARIBAS
Operations Contact:
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit Contact:
000 X. XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LASALLE BANK NATIONAL ASSOCIATION
Operations Contact:
000 X. Xxxxxxxxx Xxxxxx
#0000
Xxxxxxxxx, XX 00000
Attention: Xxxx Potrykos
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit Contact:
000 X. Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
M&I XXXXXXXX & XXXXXX BANK
Operations Contact:
000 X. Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Yumanz
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit Contact:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NATIONAL CITY BANK OF THE MIDWEST
Operations Contact:
Xxx XXX Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit Contact:
Xxx Xxxxx Xxxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE BANK OF NEW YORK
Operations Contact:
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit Contact:
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
U.S. BANK NATIONAL ASSOCIATION
Operations Contact:
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit Contact:
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX TRUST AND SAVINGS BANK
Operations Contact:
000 X. Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Dancer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit Contact:
000 X. Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FIFTH THIRD BANK
Operations Contact:
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit Contact:
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxx-xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ATTACHMENT 1
CONFIRMATION
Dated as of March 18, 2005
| To: |
Bank of America, N.A., as Administrative Agent, and | |
| the Banks under the Loan Agreement referred to below |
Please refer to (a) the Loan Agreement dated as of February 11, 2005 (the “Loan Agreement”) among Xxxxxx & Xxxxxxxx Corporation (the “Company”), various financial institutions, and Bank of America, N.A., as Administrative Agent; (b) the First Amendment dated as of March 18, 2005 (the “Amendment”), amending the Loan Agreement to, among other things, add additional “Banks” as parties thereto; and (c) the Guaranty dated as of February 11, 2005 (the “Guaranty”) issued by the undersigned. Capitalized terms used but not defined herein have the respective meanings set forth in the Amendment.
Each of the undersigned hereby confirms to the Administrative Agent and the Banks (including the New Banks) that (a) after giving effect to the Amendment and the transactions contemplated thereby, the Guaranty continues in full force and effect and is the legal, valid and binding obligation of such undersigned, enforceable against such undersigned in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability; and (b) all references in the Guaranty to the “Loan Agreement” shall be deemed to be references to the Loan Agreement as amended by the Amendment.
| XXXXXX & XXXXXXXX POWER PRODUCTS GROUP, LLC | ||
| By: |
/s/ Xxxxxx X. Xxxxxx | |
| Name: |
Xxxxxx X. Xxxxxx | |
| Title: |
Treasurer | |
| SIMPLICITY MANUFACTURING, INC. | ||
| By: |
/s/ Xxxxxx X. Xxxxxx | |
| Name: |
Xxxxxx X. Xxxxxx | |
| Title: |
Treasurer | |
First Amendment to Term Loan Agreement
