Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT AND
INCREASE OF AGGREGATE REVOLVING COMMITMENTS
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND INCREASE OF AGGREGATE
REVOLVING COMMITMENTS, dated as of January 19, 2006 (this "Agreement"), is
entered into among XXXXX CORPORATION, a Wisconsin corporation (the "Company"),
XXXXX WORLDWIDE, INC., a Wisconsin corporation ("Worldwide"), and TRICOR DIRECT,
INC., a Delaware corporation ("Tricor", together with the Company and Worldwide,
the "Borrowers"), the guarantors identified on the signature pages hereto as
Guarantors (the "Guarantors"), the lenders identified on the signature pages
hereto as Lenders (the "Lenders") and Bank of America, N.A., as Administrative
Agent (in such capacity, the "Administrative Agent"). Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed thereto in the
Credit Agreement (as defined below).
RECITALS
A. The Borrowers, the Guarantors, the Lenders and the Administrative Agent
entered into that certain Credit Agreement, dated as of March 31, 2004 (as
amended from time to time, the "Credit Agreement").
B. The parties to the Credit Agreement have agreed to amend the Credit
Agreement as provided herein and to increase the Aggregate Revolving Commitments
by SEVENTY-FIVE MILLION DOLLARS ($75,000,000) pursuant to Section 2.01(c) of the
Credit Agreement.
C. In consideration of the agreements hereinafter set forth, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows.
AGREEMENT
1. Amendments.
(a) The definition of "Aggregate Revolving Commitments" appearing in
Section 1.01 of the Credit Agreement is hereby amended to read as follows:
"Aggregate Revolving Commitments" means the Revolving Commitments of
all the Lenders. The amount of the Aggregate Revolving Commitments in
effect on January 19, 2006 is TWO HUNDRED MILLION DOLLARS ($200,000,000).
(b) Section 8.03(f) of the Credit Agreement is hereby amended to read
as follows:
(f) unsecured Indebtedness of the Company evidenced by promissory
notes issued pursuant to a "private placement" transaction that is exempt
from registration under the Securities Act of 1933 in an aggregate
principal amount not to exceed $350,000,000 at any one time outstanding;
(c) Schedule 2.01 of the Credit Agreement is hereby amended to read as
Schedule 2.01 attached hereto.
2. Increase of Aggregate Revolving Commitments. The Company has requested
that certain Lenders increase their respective Revolving Commitments in
accordance with Section 2.01(c) of the Credit Agreement. Each Lender hereby
acknowledges and agrees that such increase to its Revolving Commitment is in
addition to its existing Revolving Commitment. Each Lender hereby confirms its
Revolving Commitment (after giving effect to such increase) as set forth on
Schedule 2.01 attached hereto.
3. Effectiveness; Conditions Precedent. This Agreement shall be effective
as of the date hereof when all of the conditions set forth in this Section 3
shall have been satisfied in form and substance satisfactory to the
Administrative Agent.
(a) Execution and Delivery of Agreement. The Administrative Agent
shall have received copies of this Agreement duly executed by the Loan
Parties, the Lenders and the Administrative Agent.
(b) Resolutions. The Administrative Agent shall have received copies
of resolutions of the Board of Directors of each Loan Party approving and
adopting the Agreement and authorizing execution and delivery of this
Agreement (including the increase of the Aggregate Revolving Commitments),
certified by a secretary or assistant secretary of each Loan Party to be
true and correct and in force and effect as of the date hereof.
(c) Fees and Expenses. Payment of all fees and expenses owed by the
Borrowers to the Administrative Agent.
4. Ratification of Credit Agreement. Each Loan Party acknowledges and
consents to the terms set forth herein and agrees that this Agreement does not
impair, reduce or limit any of its obligations under the Loan Documents.
5. Authority/Enforceability. Each Loan Party represents and warrants as
follows:
(a) It has taken all necessary action to authorize the execution,
delivery and performance of this Agreement.
(b) This Agreement has been duly executed and delivered by each Loan
Party and constitutes its legal, valid and binding obligations, enforceable
in accordance with its terms, except as such enforceability may be subject
to (i) applicable Debtor Relief Laws and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding at
law or in equity).
(c) No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or governmental authority or
third party is required in connection with the execution, delivery or
performance by such Person of this Agreement.
(d) The execution and delivery of this Agreement does not (i) violate,
contravene or conflict with any provision of its Organization Documents or
(ii) materially violate, contravene or conflict with any Laws applicable to
it or any of its Subsidiaries.
6. Representations and Warranties of the Loan Parties. Each Loan Party
represents and warrants to the Lenders that (a) the representations and
warranties of the Loan Parties set
forth in Article VI of the Credit Agreement are true and correct in all material
respects as of the date hereof, and (b) no event has occurred and is continuing
which constitutes a Default or an Event of Default.
7. Counterparts/Telecopy. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. Delivery of
executed counterparts of this Agreement by telecopy shall be effective as an
original.
8. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
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Exhibit 10.1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWERS: XXXXX CORPORATION,
a Wisconsin corporation
By: /s/ Xxxxxxx Bolens
------------------------------------
Name: Xxxxxxx Bolens
Title: VP & Treasurer
XXXXX WORLDWIDE, INC.,
a Wisconsin corporation
By: /s/ Xxxxxxx Bolens
------------------------------------
Name: Xxxxxxx Bolens
Title: VP
TRICOR DIRECT, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Bolens
------------------------------------
Name: Xxxxxxx Bolens
Title: VP
GUARANTORS: XXXXX INTERNATIONAL CO.,
a Wisconsin corporation
By: /s/ Xxxxxxx Bolens
------------------------------------
Name: Xxxxxxx Bolens
Title: XX
XXXXX INVESTMENT CO.,
a Nevada corporation
By: /s/ Xxxxxxx Bolens
------------------------------------
Name: Xxxxxxx Bolens
Title: VP
WORLDMARK OF WISCONSIN, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Bolens
------------------------------------
Name: Xxxxxxx Bolens
Title: XX
XXXXXX SYSTEMS, INC.,
A New York corporation
By: /s/ Xxxxxxx Bolens
------------------------------------
Name: Xxxxxxx Bolens
Title: VP
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXX CORPORATION
EMED CO.,
a New York corporation
By: /s/ Xxxxxxx Bolens
------------------------------------
Name: Xxxxxxx Bolens
Title: VP
TRUMED TECHNOLOGIES, INC.,
a Minnesota corporation
By: /s/ Xxxxxxx Bolens
------------------------------------
Name: Xxxxxxx Bolens
Title: VP
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXX CORPORATION
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXX CORPORATION
LENDERS: BANK OF AMERICA, N.A.,
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXX CORPORATION
XXXXXX X.X. (f/k/a XXXXXX TRUST AND
SAVINGS BANK)
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXX CORPORATION
M&I XXXXXXXX & XXXXXX BANK
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxx X. Xxxxxxxxx, Xx.
------------------------------------
Name: Xxx X. Xxxxxxxxx, Xx.
Title: Vice President
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXX CORPORATION
PNC BANK, N.A.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXX CORPORATION
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXX CORPORATION
