UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): February 29,
2008
THE
TORO COMPANY
(Exact
name of registrant as specified in its charter)
|
Delaware
|
1-8649
|
41-0580470
|
|
(State
of Incorporation)
|
(Commission
File Number)
|
(I.R.S.
Employer Identification Number)
|
|
8111
Lyndale Avenue South
Bloomington,
Minnesota
(Address
of principal executive offices)
|
55420
(Zip
Code)
|
Registrant’s
telephone number, including area code: (952) 888-8801
Not
Applicable
(Former
name or former address, if changed since last report.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
[ ] Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ] Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
[ ] Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Section
1 — Registrant’s Business and Operations
Item
1.01 Entry into a Material Definitive Agreement.
On
February 29, 2008, The Toro Company (“Toro”), and each of Toro Credit Company,
Toro Manufacturing LLC, Exmark Manufacturing Company Incorporated, Toro
International Company, Tover Overseas B.V., and Toro Factoring Company Limited,
each of which is a subsidiary of Toro (collectively, with Toro, the
“Borrowers”), executed and delivered Amendment No.4 to Credit
Agreement (the “Amendment”), with certain lenders from time to time party
thereto (the “Lenders”), and Bank of America, N.A., as Administrative Agent,
Swing Line Lender, and L/C Issuer (the “Agent”). The Amendment amends that
certain Credit Agreement, dated as of September 8, 2004 (the “Original Credit
Agreement” and, as amended to date, the “Credit Agreement”), which was
previously amended by Amendment No.1 to Credit Agreement, dated as of October
25, 2005, Amendment No.2 to Credit Agreement, dated as of January 10, 2007, and
Amendment No. 3 to Credit Agreement, effective as of February 28,
2007. A copy of the Original Credit Agreement was attached as an
exhibit to Toro’s Current Report on Form 8-K filed on September 9,
2004.
The
Amendment (i) increases the covenant limit for the purchase price of an
individual acquisition from $100 million to $200 million, (ii) increases the
covenant limit for the aggregate purchase price of all acquisitions from $200
million to $400 million, and (iii) clarifies that earnouts and contingent
liabilities are excluded when determining the purchase price of an
acquisition. This description of the Amendment is qualified in its
entirety by reference to the full text of the Amendment, a copy of which is
filed as Exhibit 10.1 to this Current Report on Form 8-K.
Also on
February 29, 2008, pursuant to Section 2.14 of the Credit Agreement, the
aggregate loan commitments available to Toro under the Credit Agreement were
increased from $175 million to $225 million.
Bank of
America, N.A. and its affiliates, including Banc of America Securities LLC, have
in the past performed, and may in the future from time to time perform,
investment banking, financial advisory, lending and/or commercial banking
services for Toro and its subsidiaries in arm’s length transactions, on terms
customarily available to unrelated third-parties and for which services it has
in the past received, and may in the future receive, customary compensation and
reimbursement of expenses. Additionally, certain other Lenders and
their affiliates have in the past performed, and may in the future from time to
time perform, financial services for Toro and its subsidiaries in arm’s length
transactions, on terms customarily available to unrelated third-parties and for
which services such Lenders have in the past received, and may in the future
receive, customary compensation and reimbursement of expenses.
Section
9 — Financial Statements and Exhibits
Item
9.01 Financial Statements and Exhibits.
(d) Exhibits.
|
Exhibit
No.
|
Description
|
|
10.1
|
Amendment
No.4 to Credit Agreement, dated February 29, 2008, by and among The Toro
Company, Toro Credit Company, Toro Manufacturing LLC, Exmark Manufacturing
Company Incorporated, Toro International Company, Tover Overseas B.V., and
Toro Factoring Company Limited, each as a Borrower, each lender from time
to time party thereto, and Bank of America, N.A., as Administrative Agent,
Swing Line Lender, and L/C Issuer.
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| THE TORO COMPANY | |
| (Registrant) | |
|
Date: March
4, 2008
|
By: /s/ Timothy P.
Dordell
|
|
Timothy
P. Dordell
|
|
|
Vice
President, Secretary and General
Counsel
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EXHIBIT
INDEX
| EXHIBIT NUMBER | DESCRIPTION |
|
10.1
|
Amendment
No.4 to Credit Agreement, dated February 29, 2008, by and among The Toro
Company, Toro Credit Company, Toro Manufacturing LLC, Exmark Manufacturing
Company Incorporated, Toro International Company, Tover Overseas B.V., and
Toro Factoring Company Limited, each as a Borrower, each lender from time
to time party thereto, and Bank of America, N.A., as Administrative Agent,
Swing Line Lender, and L/C Issuer.
|
Exhibit
10.1
AMENDMENT
NO. 4 TO CREDIT AGREEMENT
This Amendment No. 4 to Credit
Agreement (this “Amendment”), dated as
of February 29, 2008, is made by and among THE TORO COMPANY, a Delaware
corporation (“Toro”), TORO CREDIT COMPANY, a
Minnesota corporation, TORO MANUFACTURING LLC, a Delaware
limited liability company, EXMARK MANUFACTURING COMPANY INCORPORATED, a
Nebraska corporation, TORO
INTERNATIONAL COMPANY, a Minnesota corporation, TOVER OVERSEAS B.V., a
Netherlands company, and TORO FACTORING COMPANY LIMITED, a
Guernsey, Channel Islands company (all of the foregoing, collectively, the
“Borrowers”),
each lender from time to time party hereto (collectively the “Lenders”), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer (the “Administrative
Agent”).
WHEREAS,
the Borrowers, the Administrative Agent and the Lenders have entered into that
certain Credit Agreement dated as of September 8, 2004 (as amended by Amendment
No. 1 to Credit Agreement dated as of October 25, 2005, Amendment No. 2 to
Credit Agreement dated as of January 10, 2007, and Amendment No. 3 to Credit
Agreement effective as of February 28, 2007, as hereby amended and as from time
to time hereafter further amended, modified, supplemented, restated or amended
and restated, the “Credit
Agreement” (capitalized terms used and not otherwise defined in this
Amendment shall have the respective meanings given thereto in the Credit
Agreement), pursuant to which the Lenders have made available to the Borrowers a
revolving credit facility (including a letter of credit facility and a swing
line facility); and
WHEREAS, the Borrowers have requested
that the Administrative Agent and the Required Lenders amend certain provisions
of the Credit Agreement as set forth herein;
WHEREAS, all conditions necessary to
authorize the execution and delivery of this Amendment and to make this
Amendment valid and binding have been complied with or have been done or
performed;
NOW, THEREFORE, in consideration of the
foregoing and for other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendments. Subject
to the terms and conditions set forth herein, the Credit Agreement is hereby
amended as follows:
(a) The
following definition is added to Section 1.01 in the
appropriate alphabetical location therein:
“Fourth Amendment Effective
Date” means February 29, 2008.
(b) Section 7.04(d) of
the Credit Agreement is deleted in its entirety and the following is inserted in
lieu thereof:
(d) Investments
incurred in order to consummate Acquisitions, provided that (i) the
aggregate purchase price payable in cash or cash equivalents (including
assumption of liability and excluding earnouts or other contingent obligations
related to
such
Acquisition) in any
such individual Acquisition shall not exceed $200,000,000, and from and after
the Fourth Amendment Effective Date the aggregate purchase price payable in cash
or cash equivalents (including assumption of liability and excluding earnouts or
other contingent obligations related to such Acquisition) for all Acquisitions
undertaken by Toro and its Subsidiaries shall not exceed $400,000,000,
(ii) such Acquisitions are undertaken in accordance with all applicable
Laws; and (iii) the prior, effective written consent or approval to such
Acquisition of the board of directors or equivalent governing body of the
acquiree is obtained;
2. Conditions
Precedent. The effectiveness of this Amendment is subject to
the satisfaction of the following conditions precedent:
(a) The
Administrative Agent shall have received each of the following documents or
instruments in form and substance reasonably acceptable to the Administrative
Agent:
(i)
one or more counterparts of this Amendment, duly executed by the Borrowers, the
Administrative Agent and the Required Lenders, together with all schedules and
exhibits thereto duly completed; and
(ii) such
other documents, instruments, opinions, certifications, undertakings, further
assurances and other matters as the Administrative Agent shall reasonably
require.
3. Reaffirmation by each of the
Borrowers. Each of the Borrowers hereby consents, acknowledges
and agrees to the amendments of the Credit Agreement set forth
herein.
4. Representations and
Warranties. In order to induce the Administrative Agent and
the Lenders to enter into this Amendment, each of the Borrowers represents and
warrants to the Administrative Agent and the Lenders as follows:
(a) The
representations and warranties of (i) the Borrowers contained in Article V (after
giving effect to this Amendment) and (ii) each Loan Party contained in each
other Loan Document or in any document furnished at any time under or in
connection herewith or therewith, shall be true and correct on and as of the
date hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this Amendment,
the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be
deemed to refer to the most recent statements furnished pursuant to clauses (a)
and (b), respectively, of Section
6.01.
(b) There
does not exist any pending or threatened action, suit, investigation or
proceeding in any court or before any arbitrator or Government Authority that
purports to affect any transaction contemplated under this Amendment or the
ability of any Borrower to perform its respective obligations under this
Amendment.
(c) There
has not occurred since October 31, 2007 any 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; and
(d) No
Default or Event of Default has occurred and is continuing.
5. Entire
Agreement. This Amendment, 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 Amendment may be changed, modified, waived or canceled
orally or otherwise, except as permitted pursuant to Section 11.01 of the
Credit Agreement.
6. Full Force and Effect of
Amendment. 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.
7. Counterparts. This
Amendment 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. Delivery of an executed counterpart of a signature page
of this Amendment by telecopy, facsimile or other electronic transmission
(including .PDF) shall be effective as delivery of a manually executed
counterpart of this Amendment.
8. Governing
Law. This Amendment shall in all respects be governed by, and
construed in accordance with the laws of the State of New York.
9. Enforceability. Should
any one or more of the provisions of this Amendment 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.
10. References. All
references in any of the Loan Documents to the “Credit Agreement” shall mean the
Credit Agreement as amended hereby.
11. Successors and
Assigns. This Amendment shall be binding upon and inure to the
benefit of the Borrowers, the Administrative Agent and each of the Lenders, and
their respective successors, assigns and legal representatives; provided, however,
that no Borrower, without the prior consent of the Required Lenders, may assign
any rights, powers, duties or obligations hereunder.
12. Expenses. Toro
agrees to pay to the Administrative Agent all reasonable out-of-pocket expenses
incurred or arising in connection with the negotiation and preparation of this
Amendment.
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment No. 3 to Credit Agreement to be made,
executed and delivered by their duly authorized officers or representatives as
of the day and year first above written.
| THE TORO COMPANY | |
|
|
By: /s/
Stephen P. Wolfe
|
|
Name: Stephen
P.
Wolfe
|
|
|
Title: Vice
President, Finance &
CFO
|
| TORO CREDIT COMPANY | |
|
|
By: /s/
Thomas J.
Larson
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Name: Thomas
J.
Larson
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|
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Title: Secretary
and
Treasurer
|
| TORO MANUFACTURING COMPANY | |
|
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By: /s/
Timothy P.
Dordell
|
|
Name: Timothy
P.
Dordell
|
|
|
Title: Vice
President &
Secretary
|
| EXMARK MANUFACTURING COMPANY | |
| INCORPORATED | |
|
|
By: /s/
Thomas J.
Larson
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Name: Thomas
J.
Larson
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Title: Treasurer
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| TORO INTERNATIONAL COMPANY | |
|
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By: /s/
Stephen P.
Wolfe
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Name: Stephen
P.
Wolfe
|
|
|
Title: Vice
President &
Treasurer
|
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160;
| TOVER OVERSEAS B.V. | |
|
|
By: /s/
Stacy
Bogart
|
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Name: Stacy
Bogart
|
|
|
Title: Managing
Director
|
| TORO FACTORING COMPANY LIMITED | |
|
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By: /s/
Stacy
Bogart
|
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Name: Stacy
Bogart
|
|
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Title: Managing
Director
|
| BANK OF AMERICA, N.A., as Administrative | |
| Agent | |
|
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By: /s/
Charlene
Wright-Jones
|
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Name: Charlene
Wright-Jones
|
|
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Title: Assistant
Vice
President
|
&#
160;
| BANK OF AMERICA, N.A., as a Lender, L/C | |
| Issuer and Swing Line Lender | |
|
|
By: /s/
Charles R.
Dickerson
|
|
Name: Charles
R.
Dickerson
|
|
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Title: Managing
Director
|
| SUNTRUST BANK, as a Lender and a Co- | |
| Syndication Agent | |
|
|
By: /s/
Robert
Maddox
|
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Name: Robert
Maddox
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Title: Director
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| U.S. BANK NATIONAL ASSOCIATION, as a | |
| Lender and a Co-Syndication Agent | |
|
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By: /s/
Michael J.
Staloch
|
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Name: Michael
J.
Staloch
|
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Title: Senior
Vice
President
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| BMO CAPITAL MARKETS FINANCING, | |
| INC., as a Lender and a Co-Documentation Agent | |
|
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By: /s/
James J.
Lent
|
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Name: James
J.
Lent
|
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Title: Vice
President
|
| WELLS FARGO BANK, NATIONAL | |
| ASSOCIATION, as a Lender and a | |
| Co-Documentation Agent | |
|
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By: /s/
Ted
Hanson
|
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Name: Ted
Hanson
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Title: Assistant
Vice
President
|
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160;
| THE BANK OF NEW YORK, as a Lender | |
|
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By: /s/
John T.
Smathers
|
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Name: John
T.
Smathers
|
|
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Title: Vice
President
|
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