AMENDMENT NO. 1 TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
April 13, 2001, amends and supplements the Amended and Restated Credit Agreement
dated as of April 14, 2000 (the "Credit Agreement") among Xxxxxx Co., Inc., a
Wisconsin corporation (the "Company"), the financial institutions party thereto
(the "Lenders") and Firstar Bank, National Association, as agent for the Lenders
(in such capacity, the "Agent").
RECITAL
The Company, the Lenders and the Agent desire to amend the Credit Agreement
as provided below.
AGREEMENTS
In consideration of the promises and agreements contained in the Credit
Agreement, as amended hereby, the Company, the Banks and the Agent agree as
follows:
1. Definitions and References. Capitalized terms not defined herein have
the meanings assigned in the Credit Agreement. Upon the satisfaction of the
conditions set forth in section 5 below, all references to the Credit Agreement
contained in the Loan Documents mean the Credit Agreement as amended by this
Amendment No. 1 to Amended and Restated Credit Agreement ("Amendment No. 1").
This Amendment No. 1 is a Loan Document.
2. Amendments to Credit Agreement.
(a) The first paragraph of the defined term "Interest Period" is
amended to read as follows:
"Interest Period" means, with respect to a LIBOR Rate Loan, a
period of one, two, three or, if available as determined by the Agent, six
months commencing on (and including) a Business Day selected by the Company
pursuant to section 2.3(a) or 2.4(c) of this Agreement and ending on (but
excluding) the day which corresponds numerically to such date one, two,
three or six months thereafter (or, if such month has no numerically
corresponding date, on the last Business Day of such month), provided that:
(b) The defined term "Majority Lenders" is amended to read as follows:
"Majority Lenders" means the Lenders holding in the aggregate at
lease 66-2/3% of the aggregate outstanding principal balance of the Loans
or, if there are no Loans outstanding, Lenders whose aggregate Percentage
is at least 66-2/3%.
(c) The defined term "Revolving Note Maturity Date" in section 1 of
the Credit Agreement is amended by deleting the date "April 13, 2001" and
replacing it with the date "April 12, 2002".
(d) Exhibits A and B attached hereto shall replace their predecessors
attached to the Credit Agreement.
3. U. S. Bank National Association and LaSalle Bank National Association No
Longer a Party to Credit Agreement. The parties agree that as of the effective
date of this Amendment No. 1, U. S. Bank National Association ("U. S. Bank") and
LaSalle Bank National Association ("LaSalle") are no longer parties to the
Credit Agreement, are no longer Lenders and shall have no further rights or
obligations under the Credit Agreement.
4. Reduction in Revolving Loan Commitment; Modification of Percentages;
Reallocation of Term Loans. The parties agree that as of the effective date of
this Amendment No. 1 (a) the aggregate Revolving Loan Commitment shall be
reduced from $76,000,000 to $39,000,000, (b) the Percentage and Revolving Loan
Commitment of each Lender shall be as set forth opposite its signature to this
Amendment No. 1 and (c) the principal amount of Term Loan outstanding as of such
date ($16,000,000) shall be reallocated among the Lenders in accordance with
such revised Percentages. The Company agrees to execute and deliver to each
Lender (1) a replacement Revolving Note in the form of Exhibit A attached
hereto, with appropriate insertions and in the principal amount of such Lender's
Revolving Loan Commitment, which shall replace the Revolving Notes payable to
such Lender issued on the Effective Date and (2) a replacement Term Note in the
form of Exhibit B attached hereto, with appropriate insertions and in the
principal amount of the Term Loan made by such Lender to the Company after the
reallocation referred to above, which shall replace the Term Note payable to
such Lender issued on the Effective Date. On the effective date of this
Amendment No. 1 the existing Revolving Notes and Term Notes shall be deemed
refinanced and shall no longer evidence the Loans made under the Credit
Agreements and each Lender shall, promptly following receipt of the replacement
Notes, return such existing Notes to the Company.
5. Closing Conditions. This Amendment No. 1 shall become effective upon its
execution and delivery by the parties hereto and receipt by the Agent of:
(a) Replacement Notes. Replacement Revolving Notes and Term Notes,
duly executed by the Company.
(b) Secretary's Certificate. A certificate of the Secretary of the
Company to the effect that there have been no amendments to the Articles of
Incorporation and By-Laws of the Company since the most recent date on which
copies thereof were furnished to the Agent.
(c) Other Documents. Such other documents relating to the transactions
contemplated by this Amendment No. 1 as the Agent shall reasonably request.
6. Payment Allocations. The Lenders and the Agent shall make arrangement
among themselves pursuant to which (a) U. S. Bank and LaSalle are each paid the
unpaid principal balance of the Notes payable to each of them as of the
effective date of this Amendment No. 1, (b) U. S. Bank and LaSalle each receive
the interest accrued on their respective Notes, and the commitment fees payable
to each of them through the effective date hereof, payable to each of them on
the date the Agent receives such payments from the Company, (c) each Lender pays
or
is paid, as the case may be, such amount as is necessary to effect the
reallocation of the Term Loans referred to in section 4 above and (d) the
interest paid by the Company on the Term Notes is allocated to the Lenders in
such amount as is necessary to reflect such reallocation of the Term Loans. The
provisions of this section shall supercede any inconsistent term in the Credit
Agreement.
7. Representations and Warranties. The Company represents and warrants
that:
(a) The execution and delivery by the Company of this Amendment No. 1
and the replacement Notes, and the performance by the Company under the Credit
Agreement, as amended hereby, (i) are within its corporate power, (ii) have been
duly authorized by all necessary corporate action on the part of the Company,
(iii) do not violate any provision of the Articles of Incorporation or By-Laws
of the Company, (iv) do not violate any provision of or constitute a default
under any existing law, rule or regulation of any governmental authority or
agency, any order or decision of any court binding upon the Company or the terms
of any agreement, restriction or undertaking to which the Company is a party or
by which it is bound or (v) require the approval or consent of the shareholders
of the Company, any governmental body or authority or any other person or entity
other than those which have been obtained and are in full force and effect; and
(b) the representation and warranties contained in the Loan Documents
are true and correct in all material respects as of the date hereof and no
Default or Event of Default exists as of the date hereof.
8. Costs and Expenses. The Company agrees to pay, on demand, all costs and
expenses (including reasonable attorneys' fees and disbursements) paid or
incurred by the Agent in connection with the negotiation, execution and delivery
of this Amendment No. 1.
9. Governing Law. This Amendment No. 1 shall be governed by the laws of the
State of Wisconsin.
10. Full Force and Effect. The Credit Agreement, as amended by this
Amendment No. 1, remains in full force and effect.
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XXXXXX CO., INC.
BY: /s/ Xxxxx X. Xxxxxx
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Its: Vice President
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Revolving Loan
Commitment Percentage
---------- ----------
$21,272,727.00 54.545455% FIRSTAR BANK, NATIONAL ASSOCIATION,
as the Agent and a Bank
BY: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Its: Vice President
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$14,181,818.00 36.363636% BANK ONE, N.A. (Main Office Chicago)
BY: /s/ X. X. Xxxxxxxx
-----------------------------------------
Its: Director, Capital Markets
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$3,545,455.00 9.090909% ST. XXXXXXX BANK, F.S.B.
BY: /s/ Xxxx X. Xxxxx
----------------------------------------
Its: Vice President
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$0 0% U. S. BANK NATIONAL ASSOCIATION
BY: /s/ Xxxxxx Ciechi
----------------------------------------
Its: Vice President
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$0 0% LASALLE BANK NATIONAL ASSOCIATION
BY: /s/ Xxxxx X. Xxxxx
----------------------------------------
Its: Senior Vice President
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