Exhibit 10(o)
AMENDMENT NO. 1 TO MULTI-YEAR CREDIT AGREEMENT
This Amendment No. 1 to Multi-Year Credit Agreement (this "Agreement")
dated as of December 11, 2002 is made by and among THE TORO COMPANY, a Delaware
corporation ("Toro"), the SUBSIDIARY BORROWERS (as defined in the Credit
Agreement, defined below), TORO CREDIT COMPANY, a Minnesota corporation
("Credit" and together with Toro and the Subsidiary Borrowers, the "Companies"),
TORO MANUFACTURING LLC, a Delaware limited liability company ("Manufacturing"),
BANK OF AMERICA, N.A., in its capacity as administrative agent (in such
capacity, the "Agent") and each of the Banks (as defined in the Credit
Agreement, defined below) signatory hereto.
W I T N E S S E T H:
WHEREAS, the Companies, the Agent and the Banks have entered into that
certain Multi-Year Credit Agreement dated as of February 22, 2002 (as hereby
amended and as from time to time hereafter further amended, modified,
supplemented, restated, or amended and restated, the "Credit Agreement"; the
capitalized terms as used in this Agreement not otherwise defined herein shall
have the respective meanings given thereto in the Credit Agreement), pursuant to
which the Banks have made available to the Companies a revolving credit facility
(including a letter of credit facility and a swing line facility); and
WHEREAS, the Companies have advised the Agent and the Banks that Toro
intends to transfer certain assets of Toro consisting of computer equipment,
machinery and equipment, furniture and fixtures, vehicles and tooling used in
manufacturing and engineering operations, and having an approximate aggregate
original cost of $213,000,000 and an approximate depreciated book value of
$35,000,000, to Manufacturing (the "Asset Transfer"); and
WHEREAS, the Companies have advised the Agent and the Banks that Toro
Factoring Company N.V., a Curacao company, will be reincorporated (the
"Reincorporation") as Toro Factoring Company Limited ("Factoring") in Guernsey,
Channel Islands; and
WHEREAS, the Companies have requested the consent of the Agent and the
Banks in connection with the Asset Transfer and the Reincorporation and the
Agent and the Banks signatory to this agreement have agreed to consent to the
Asset Transfer and the Reincorporation; and
WHEREAS, Manufacturing will become a Subsidiary Borrower under the
Credit Agreement; and
WHEREAS, the Companies have advised the Agent and the Banks that the
Companies desire to amend certain provisions of the Credit Agreement as set
forth herein, and the Agent and the Banks have agreed so to amend the Credit
Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and further valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Amendments to Credit Agreement. Subject to the terms and
conditions set forth herein, the Credit Agreement is hereby amended as follows:
(a) Section 1.1 is hereby amended by inserting the
following new definition in the appropriate alphabetical order:
"Manufacturing," means Toro Manufacturing LLC, a Delaware
limited liability company.
(b) Section 1.1 is hereby amended by deleting the
definition of "Subsidiary Borrowers" in its entirety and inserting the
following definition in lieu thereof:
"Subsidiary Borrowers" means, collectively, Toro International
Company, a Minnesota corporation, Tover Overseas B.V., a
Netherlands company, Toro Factoring Company Limited, a
Guernsey, Channel Islands company and Manufacturing.
(c) Section 1.1 is hereby amended by deleting the
definition of "Wholly-Owned Subsidiary" in its entirety and inserting
the following definition in lieu thereof:
"Wholly-Owned Subsidiary" means any corporation, limited
liability company or partnership in which (other than
directors' qualifying shares required by law) 100% of the
capital stock, membership interests or partnership interests,
as applicable, of each class having ordinary voting power, and
100% of the capital stock, membership interests or partnership
interests, as applicable, of every other class, in each case,
at the time as of which any determination is being made, is
owned, beneficially and of record, by one of the Companies, or
by one or more of the other Wholly-Owned Subsidiaries, or
both."
(d) Section 8.11 is hereby amended by deleting such
section in its entirety and inserting the following in lieu thereof:
"8.11 Toro, Credit and Manufacturing Portion of Assets. The
consolidated total assets of Toro, Credit and Manufacturing at
the end of each fiscal year shall not be less than 67% of the
consolidated total assets of Toro and its Subsidiaries at such
time."
(e) Section 12.18 is hereby amended by deleting such
section in its entirety and inserting the following in lieu thereof:
"12.18 Liability of the Companies. All obligations of Toro,
Credit and Manufacturing or any one of them under this
Agreement and the other Loan Documents to which they are a
party, shall be joint and several obligations of Toro, Credit
and Manufacturing, except only Toro shall be liable for the
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obligations of the Subsidiary Borrowers under Article XI
hereof. All obligations of the Subsidiary Borrowers (other
than Manufacturing) under this Agreement and all of the other
Loan Documents shall be several and not joint, the result of
which shall be that each Subsidiary Borrower (other than
Manufacturing) is obligated to repay only those Loans made by
the Banks to such Subsidiary Borrower and interest, fees,
expenses and other obligations owing by such Subsidiary
Borrower in connection with such Loans."
2. Consent and Waivers.
(a) Asset Transfer. The Agent and the Banks hereby
consent to the Asset Transfer and hereby waive any violation of
Sections 8.2 or 8.3 of the Credit Agreement arising from such Asset
Transfer.
(b) Reincorporation. The Agent and the Banks hereby
consent to the Reincorporation.
3. Conditions Precedent. The effectiveness of this Agreement and
the amendments to the Credit Agreement herein provided are subject to the
satisfaction of the following conditions precedent:
(a) The Agent shall have received each of the following
documents or instruments in form and substance reasonably acceptable to
the Agent:
(i) ten (10) original counterparts of this
Agreement, duly executed by the Companies, Manufacturing, the
Agent, and the Required Banks, together with all schedules and
exhibits thereto duly completed;
(ii) a Revolving Note executed by Manufacturing
and delivered to each of the Banks;
(iii) a Revolving Note executed by Factoring and
delivered to each of the Banks in replacement of the Revolving
Note previously executed and delivered on the Closing Date by
Factoring (the "Replaced Note") to each of the Banks, and each
Replaced Note shall be marked as cancelled and be returned by
each Bank to Toro after its receipt of such Revolving Note
from Factoring;
(iv) a copy of each of the resolutions of the
board of directors of Factoring and the resolutions of an
authorized officer of Manufacturing, in each case authorizing
the transactions contemplated under the Loan Documents and
this Agreement, certified as of the date hereof by the
Secretary or Assistant Secretary of Factoring and
Manufacturing, respectively;
(v) a certificate of the Secretary or Assistant
Secretary of Factoring and of Manufacturing certifying the
names and true signatures of the officers of Factoring and
Manufacturing, respectively, authorized to execute, deliver
and perform, as applicable, this Agreement, and all other Loan
Documents to be delivered by it hereunder;
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(vi) a copy of the Organizational Documents of
Factoring and of Manufacturing as in effect on the date
hereof, certified by the Secretary or Assistant Secretary of
Factoring and Manufacturing, respectively;
(vii) a certificate of good standing or similar
status as may be available for Factoring and for Manufacturing
from the applicable Governmental Authority of its jurisdiction
of incorporation and its principal place of business;
(viii) a certificate of a Responsible Officer
demonstrating compliance with Section 8.11 as amended hereby
as of August 2, 2002 together with a consolidating balance
sheet of Toro and its Subsidiaries as of such date; and
(ix) such other documents, instruments, opinions,
certifications, undertakings, further assurances and other
matters as the Agent shall reasonably require.
(b) all fees and expenses payable to the Agent and the
Banks (including the fees and expenses of counsel to the Agent) accrued
to date, including all fees associated with this Agreement, shall have
been paid in full.
4. Joinder of Toro Manufacturing LLC. Manufacturing hereby agrees
that, by its execution of this Agreement, Manufacturing hereby becomes a party
to the Credit Agreement, and is and shall be for all purposes a "Subsidiary
Borrower" and a "Company" under the Credit Agreement, and shall have, and hereby
unconditionally, absolutely and irrevocably assumes, joint and several liability
for all of the obligations of a Company and a Subsidiary Borrower thereunder as
if it had manually executed the Credit Agreement. Manufacturing hereby ratifies,
as of the date hereof, and agrees to be bound by, all of the terms, provisions
and conditions contained in the Credit Agreement applicable to each Subsidiary
Borrower, to each Company and specifically to itself.
5. Reaffirmation by Toro Factoring Company Limited and each of
the Companies. Toro Factoring Company Limited hereby confirms and ratifies in
all respects its Obligations incurred and agreed to heretofore as Toro Factoring
Company N.V. in its capacity as a Subsidiary Borrower and Company under each of
the Loan Documents and together with each of the Companies hereby consents,
acknowledges and agrees to the amendments of the Credit Agreement set forth
herein.
6. Representations and Warranties. In order to induce the Agent
and the Banks to enter into this Agreement, each of the Companies and
Manufacturing represents and warrants to the Agent and the Banks as follows:
(a) The representations and warranties in Article VI of
the Credit Agreement (after giving effect to this Agreement) and in
each of the other Loan Documents to which such Company or Manufacturing
is a party are true and correct in all material respects on and as of
the date hereof, except to the extent that such representations and
warranties expressly relate to an earlier date;
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(b) There does not exist any pending or threatened
action, suit, investigation or proceeding in any court or before any
arbitrator or Governmental Authority that purports (A) to have a
Material Adverse Effect on Manufacturing or any of the Companies or
their Subsidiaries, or (B) to affect any transaction contemplated under
this Agreement or any Loan Document or the ability of any Company or
Manufacturing to perform its respective obligations under this
Agreement or any Loan Document;
(c) There has occurred since October 31, 2001, no event
or circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect or a material adverse change in or
a material adverse effect upon the business, assets, liabilities
(actual or contingent), operations, condition (financial or otherwise),
or prospects of Toro and its Subsidiaries taken as a whole;
(d) No Default or Event of Default has occurred and is
continuing; and
(e) Toro's Debt Rating as of the date hereof is Baa3 by
Moody's and BBB- by S&P.
7. Entire Agreement. This Agreement, together with all the Loan
Documents (collectively, the "Relevant Documents"), sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and not one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as otherwise expressly stated in the Relevant Documents, no representations,
warranties or commitments, express or implied, have been made by any party to
the other. None of the terms or conditions of this Agreement may be changed,
modified, waived or canceled orally or otherwise, except as permitted pursuant
to Section 12.1 of the Credit Agreement.
8. Full Force and Effect of Agreement. Except as hereby
specifically amended, modified or supplemented, the Credit Agreement and all
other Loan Documents are hereby confirmed and ratified in all respects by each
party hereto and shall be and remain in full force and effect according to their
respective terms.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which shall together constitute one
and the same instrument.
10. Governing Law. This Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the state of New
York.
11. Enforceability. Should any one or more of the provisions of
this Agreement be determined to be illegal or unenforceable as to one or more of
the parties hereto, all other provisions nevertheless shall remain effective and
binding on the parties hereto.
12. References. All references in any of the Loan Documents to the
"Credit Agreement" shall mean the Credit Agreement, as amended hereby.
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13. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Companies, Manufacturing, the Agent and each of
the Banks, and their respective successors, assigns and legal representatives;
provided, however, that neither Manufacturing nor any Company, without the prior
consent of the Required Banks, may assign any rights, powers, duties or
obligations hereunder.
14. Expenses. The Companies and Manufacturing agree to pay to the
Agent all reasonable out-of-pocket expenses incurred or arising in connection
with the negotiation and preparation of this Agreement.
[SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to Multi-Year Credit Agreement to be made, executed and delivered by their duly
authorized officers as of the day and year first above written.
THE TORO COMPANY
By: /s/ J. Lawrence McIntyre
--------------------------------------------
Name: J. Lawrence McIntyre
Title: Vice President, Secretary General Counsel
TORO CREDIT COMPANY
By: /s/ Stephen P. Wolfe
--------------------------------------------
Name: Stephen P. Wolfe
Title: President
TORO INTERNATIONAL COMPANY
By: /s/ Stephen P. Wolfe
--------------------------------------------
Name: Stephen P. Wolfe
Title: V. Pres. Treasurer
TOVER OVERSEAS B.V.
By: /s/ Robert Buitendijk
--------------------------------------------
Name: Temmes Management Services B.V.
Title: Director
TORO FACTORING COMPANY LIMITED (formerly
TORO FACTORING COMPANY N.V.)
By: /s/ Paula Graff
--------------------------------------------
Name: Paula Graff
Title: Director
Signature Page 1 of 9
TORO MANUFACTURING LLC
By: /s/ Stephen P. Wolfe
--------------------------------------------
Name: Stephen P. Wolfe
Title: President
Signature Page 2 of 9
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Jeffrey A. Armitage
--------------------------------------------
Name: Jeffrey A. Armitage
Title: Vice President
Signature Page 3 of 9
BANK OF AMERICA, N.A.,
as Issuing Bank, Swing Line Bank and a Bank
By: /s/ Jeffrey A. Armitage
--------------------------------------------
Name: Jeffrey A. Armitage
Title: Vice President
Signature Page 4 of 9
WELLS FARGO BANK, NATIONAL ASSOCIATION
as a Bank
By: /s/ Scott D. Bjelde
--------------------------------------------
Name: Scott D. Bjelde
Title: Vice President and Senior Banker
Wells Fargo Bank, National Association
WELLS FARGO BANK, NATIONAL ASSOCIATION
as a Bank
By: /s/ Christopher A. Cudak
--------------------------------------------
Name: Christopher A. Cudak
Title: Vice President
Wells Fargo Bank, National Association
Signature Page 5 of 9
THE BANK OF NEW YORK, as a Bank
By: /s/ JOHN-PAUL MAROTTA
--------------------------------------
Name: JOHN-PAUL MAROTTA
Title: VICE PRESIDENT
Signature Page 6 of 9
HARRIS TRUST AND SAVINGS BANK, as a Bank
By: /s/ ANDREW T. CLAAR
--------------------------------------------
Name: ANDREW T. CLAAR
Title: VICE PRESIDENT
Signature Page 7 of 9
U.S. BANK NATIONAL ASSOCIATION, as a Bank
By: /s/ Karen Weathers
--------------------------------------------
Name: Karen Weathers
Title: Vice President
Signature Page 8 of 9
SUNTRUST BANK, as a Bank
By: /s/ Molly J. Drennan
--------------------------------------------
Name: Molly J. Drennan
Title: Director
Signature Page 9 of 9