EXHIBIT 10(p)
AMENDMENT NO. 2 TO MULTI-YEAR CREDIT AGREEMENT
This Amendment No. 2 to Multi-Year Credit Agreement (this "Agreement")
dated as of July 9, 2003 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"),
EXMARK MANUFACTURING COMPANY INCORPORATED, a Nebraska corporation ("Exmark"),
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 amended by
that certain Amendment No. 1 to Multi-Year Credit Agreement dated December 11,
2002 (as hereby further 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 enter into, concurrently with the execution and delivery of this
Agreement, a receivables purchase facility providing for the sale of
Receivables; and
WHEREAS, Exmark 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:
"'Exmark,' means Exmark Manufacturing Company Incorporated, a
Nebraska corporation."
(b) Section 1.1 is hereby amended by deleting clause (h)
from the definition of "Indebtedness" and inserting the following in
lieu thereof:
"(h)(i) the unpaid amount of all Receivables sold by any
Company (other than Receivables sold pursuant to the
Receivables Purchase Facility) and (ii) the unpaid principal
amount of all Loans (as defined in the Receivables Purchase
Facility) owing by Toro Receivables Company or any Affiliate
thereof or successor thereto as Borrower under the Receivables
Purchase Facility; and"
(c) Section 1.1 is hereby amended by adding the following
language to the end of the definition of "Material Subsidiary":
"; provided, that Toro Receivables Company and each successor
thereto as purchaser and borrower under the Receivables
Purchase Facility shall not be Material Subsidiaries."
(d) Section 1.1 is hereby amended by inserting the
following definition of "Receivables Loan Agreement" in the appropriate
alphabetical order:
"'Receivables Loan Agreement' shall have the meaning set forth
in the definition of 'Receivables Purchase Facility' in
Section 1.1."
(e) Section 1.1 is hereby amended by deleting the
definition of "Receivables Purchase Facility" in its entirety and
inserting the following definition in lieu thereof:
"'Receivables Purchase Facility' means, collectively, (A) that
certain Receivables Purchase Agreement dated as of July 9,
2003 between Toro Receivables Company, as Purchaser, Toro, as
the Originator, and (B) that certain Loan Agreement dated as
of July 9, 2003 ('Receivables Loan Agreement') among Toro
Receivables Company, as Borrower, Toro, as Servicer, Three
Pillars Funding Corporation, as Lender, and SunTrust Capital
Markets, Inc., as Administrator, each reasonably acceptable in
form and substance to the Administrative Agent and the
Required Banks and each of which shall not be amended in any
manner disadvantageous to the Banks or the Originator without
the prior written consent of the Required Banks."
(f) 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, Manufacturing and Exmark."
(g) Article VI is hereby amended by adding the following
new Section 6.16:
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"6.16 Tax Shelter Regulations. The Companies do not intend to
treat the Loans and/or Letters of Credit and related
transactions as being a 'reportable transaction' (within the
meaning of Treasury Regulation Section 1.6011-4). In the event
the Companies determine to take any action inconsistent with
such intention, Toro will promptly notify the Administrative
Agent thereof. If the Companies so notify the Administrative
Agent, the Companies acknowledge that one or more of the Banks
may treat its Loans and/or its interest in Swing Line Loans
and/or Letters of Credit as part of a transaction that is
subject to Treasury Regulation Section 301.6112-1, and such
Bank or Banks, as applicable, will maintain the lists and
other records required by such Treasury Regulation."
(h) Section 7.2 is hereby amended by adding the following
new Section 7.2(e):
"(e) promptly after Toro has notified the Administrative Agent
of any intention by the Companies to treat the Loans and/or
Letters of Credit and related transactions as being a
"reportable transaction" (within the meaning of Treasury
Regulation Section 1.6011-4), a duly completed copy of IRS
Form 8886 or any successor form."
(i) Section 8.2(d) is hereby amended by deleting such
section in its entirety and inserting the following in lieu thereof:
"(d) dispositions by the Originator of Receivables pursuant to
the Receivables Purchase Facility, provided that (I) the
aggregate outstanding principal amount of loans made to the
SPV in connection with the Receivables Purchase Facility shall
not at any time exceed $100,000,000, and (II) at no time shall
the SPV for any reason, whether pursuant to Contractual
Obligations, Organizational Documents, or otherwise, be
limited or restricted in its ability to make Restricted
Payments to Toro or otherwise transfer property to Toro."
(j) Section 8.8 is hereby amended by inserting the
following language at the end of such Section 8.8:
"Toro Receivables Company and each successor thereto as
purchaser and borrower under the Receivables Purchase Facility
may not engage in any business other than acting as an SPV in
connection with a Receivables Purchase Facility."
(k) Section 8.11 is hereby amended by deleting such
section in its entirety and inserting the following in lieu thereof:
"8.11 Toro, Credit, Manufacturing and Exmark Portion of
Assets. The consolidated total assets of Toro, Credit,
Manufacturing and Exmark 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."
(1) Section 9.1(e)(ii) is hereby amended and restated in
its entirety as follows:
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"(ii)(A) there occurs any Purchase Termination Event as
defined in the Receivables Purchase Facility or any other
termination, liquidation, unwind or similar event or
circumstance under the Receivables Purchase Facility other
than a voluntary termination by any Company or a scheduled
termination, as a result of which the SPV has ceased
purchasing such Receivables from the Originator and all loans
and obligations owing by the SPV have become immediately due
and payable (any such event or circumstance referred to as a
"Receivables Purchase Facility Termination") other than any
such Receivables Purchase Facility Termination that arises
solely as a result of (i) a down-grading of the credit rating
of any bank or financial institution not affiliated with the
Companies that provides liquidity, credit or other support in
connection with such facility; (ii) termination of the
Lender's Commitment by the Lender (as those two terms are
defined in the Receivables Loan Agreement) pursuant to the
terms of Section 2.5 of the Receivables Loan Agreement; (iii)
failure on the part of the Lender to pay amounts due under the
Receivables Loan Agreement for reasons stated in Section 15.14
of the Receivables Loan Agreement (iv) the occurrence of an
Amortization Event (other than those described in subsections
10.2(a), 10.2(g) and 10.2(h)(i) and (ii) of the Receivables
Loan Agreement) as that term is defined in the Receivables
Loan Agreement or (v) breach of a covenant contained in the
Receivables Purchase Facility and this Agreement if the Banks
have previously waived compliance with such covenant under the
terms of this Agreement with respect to the particular
instance of non-compliance giving rise to the breach of such
covenant under the Receivables Purchase Facility, it being
acknowledged by the Companies that no waiver by the Banks of
compliance with the provisions of this Agreement in any
particular instance shall constitute a waiver under either
this Agreement or the Receivables Purchase Facility of any
future non-compliance with such provision and"
(m) Section 12.8 is hereby amended by inserting the
following language at the end of such Section 12.8:
"Notwithstanding anything herein to the contrary, the
Administrative Agent and each Bank may disclose without
limitation of any kind, any information with respect to the
"tax treatment" and "tax structure" (in each case, within the
meaning of Treasury Regulation Section 1.6011-4) of the
transactions contemplated hereby) and all materials of any
kind (including opinions or other tax analyses) that are
provided to the Administrative Agent or such Bank relating to
such tax treatment and tax structure; provided that with
respect to any document or similar item that in either case
contains information concerning the tax treatment or tax
structure of the transaction as well as other information,
this sentence shall only apply to such portions of the
document or similar item that relate to the tax treatment or
tax structure of the Loans, Letters of Credit and transactions
contemplated hereby."
(n) Section 12.18 is hereby amended by deleting such
section in its entirety and inserting the following in lieu thereof:
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"12.18 Liability of the Companies. All obligations of Toro,
Credit, Manufacturing and Exmark 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,
Manufacturing and Exmark, except only Toro shall be liable for
the obligations of the Subsidiary Borrowers under Article XI
hereof. All obligations of the Subsidiary Borrowers (other
than Manufacturing and Exmark) 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 and Exmark) 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."
(o) Section 4(b)(i) of Exhibit C, the Form of Compliance
Certificate, is hereby deleted in its entirety.
(p) The Credit Agreement and all exhibits thereto are
amended to delete the definition of "364-Day Credit Agreement" and all
uses thereof and references thereto.
2. 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, Exmark, the Agent,
and the Required Banks, together with all schedules and
exhibits thereto duly completed;
(ii) a Revolving Note executed by Exmark and
delivered to each of the Banks;
(iii) a copy of the resolutions of the board of
directors of Exmark authorizing the transactions contemplated
under the Loan Documents and this Agreement, certified as of
the date hereof by the Secretary or Assistant Secretary of
Exmark;
(iv) a certificate of the Secretary or Assistant
Secretary of Exmark certifying the names and true signatures
of the officers of Exmark authorized to execute, deliver and
perform, as applicable, this Agreement, and all other Loan
Documents to be delivered by it hereunder;
(v) a copy of the Organizational Documents of
Exmark as in effect on the date hereof, certified by the
Secretary or Assistant Secretary of Exmark;
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(vi) a certificate of good standing or similar
status as may be available for Exmark from the applicable
Governmental Authority of its jurisdiction of incorporation
and its principal place of business;
(vii) a certificate of a Responsible Officer
demonstrating compliance with Section 8.11 as amended hereby
as of January 31, 2003 together with a consolidating balance
sheet of Toro and its Subsidiaries as of such date;
(viii) a copy of each of the executed Receivables
Purchase Agreement and the executed Receivables Loan Agreement
referred to in the definition of Receivables Purchase Facility
and permitted under Section 8.2(d) of the Credit Agreement
certified by a Responsible Officer as being true, correct and
complete; 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.
3. Joinder of Exmark. Exmark hereby agrees that, by its execution
of this Agreement, Exmark 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. Exmark 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.
4. Reaffirmation by each of the Companies. Each of the Companies
hereby consents, acknowledges and agrees to the amendments of the Credit
Agreement set forth herein.
5. Representations and Warranties. In order to induce the Agent
and the Banks to enter into this Agreement, each of the Companies and Exmark
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 Exmark 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;
(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 Exmark or any of the Companies or their
Subsidiaries, or (B) to affect any transaction contemplated under this
Agreement or
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any Loan Document or the ability of any Company or Exmark to perform
its respective obligations under this Agreement or any Loan Document;
(c) There has occurred since October 31, 2002, 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.
6. 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.
7. 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.
8. 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.
9. Governing Law. This Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the state of New
York.
10. 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.
11. References. All references in any of the Loan Documents to the
"Credit Agreement" shall mean the Credit Agreement, as amended hereby.
12. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Companies, Exmark, the Agent and each of the
Banks, and their respective successors, assigns and legal representatives;
provided, however, that neither Exmark nor any
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Company, without the prior consent of the Required Banks, may assign any rights,
powers, duties or obligations hereunder.
13. Expenses. The Companies and Exmark 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. 2
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, and
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: Vice President and 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/ J. Lawrence McIntyre
-------------------------------------
Name: J. Lawrence McIntyre
Title: Director
Signature Page 1 of 9
TORO MANUFACTURING LLC
By: /s/ Stephen P. Wolfe
-------------------------------------
Name: Stephen P. Wolfe
Title: President
EXMARK MANUFACTURING COMPANY INCORPORATED
By: /s/ Stephen P. Wolfe
-------------------------------------
Name: Stephen P. Wolfe
Title: Chief Financial Officer
Signature Page 2 of 9
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Jeffrey A. Armitage
-------------------------------------
Name: Jeffrey A. Armitage
Title: Principal
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: Principal
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
By: /s/ Christopher A. Cudak
-------------------------------------
Name: Christopher A. Cudak
Title: Senior 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/ Aimee P. Brantseg
-------------------------------------
Name: Aimee P. Brantseg
Title: Corporate Banking Officer
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