Attached files
file | filename |
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8-K - 8-K - POWER SOLUTIONS INTERNATIONAL, INC. | d704943d8k.htm |
EX-99.1 - EX-99.1 - POWER SOLUTIONS INTERNATIONAL, INC. | d704943dex991.htm |
EX-10.3 - EX-10.3 - POWER SOLUTIONS INTERNATIONAL, INC. | d704943dex103.htm |
EX-10.2 - EX-10.2 - POWER SOLUTIONS INTERNATIONAL, INC. | d704943dex102.htm |
EX-10.1 - EX-10.1 - POWER SOLUTIONS INTERNATIONAL, INC. | d704943dex101.htm |
Exhibit 10.4
JOINDER TO GUARANTY AND SECURITY AGREEMENT
Joinder No. 1 (this Joinder), dated as of April 1, 2014, to the Guaranty and Security Agreement, dated as of June 28, 2013 (as amended, restated, supplemented, or otherwise modified from time to time, the Guaranty and Security Agreement), by and among each of the parties listed on the signature pages thereto and those additional entities that thereafter become parties thereto (collectively, jointly and severally, Grantors and each, individually, a Grantor) and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (Wells Fargo), in its capacity as agent for the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, Agent).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Amended and Restated Credit Agreement dated as of April 1, 2014 (as amended, restated, supplemented, or otherwise modified from time to time, the Amended Credit Agreement) by and among Power Solutions International, Inc., a Delaware corporation, as a borrower (Parent), Professional Power Products, Inc., an Illinois corporation (PPPI), each other borrower from time to time party thereto (together with Parent and PPPI, collectively, Borrowers, and each, a Borrower), the lenders party thereto as Lenders (each of such Lenders, together with its successors and assigns, is referred to hereinafter as a Lender), Agent, Wells Fargo as lead arranger and Wells Fargo as book runner, the Lender Group has agreed to make certain financial accommodations available to Borrowers from time to time pursuant to the terms and conditions thereof; and
WHEREAS, initially capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Guaranty and Security Agreement or, if not defined therein, in the Amended Credit Agreement, and this Joinder shall be subject to the rules of construction set forth in Section 1(b) of the Guaranty and Security Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis; and
WHEREAS, certain Grantors (the Existing Grantors) have entered into the Guaranty and Security Agreement in order to induce the Lender Group and the Bank Product Providers to make certain financial accommodations to Borrowers as provided for in the Amended Credit Agreement, the other Loan Documents, and the Bank Product Agreements; and
WHEREAS, pursuant to Section 5.11 of the Amended Credit Agreement and Section 26 of the Guaranty and Security Agreement, certain Subsidiaries of the Loan Parties, must execute and deliver certain Loan Documents, including the Guaranty and Security Agreement, and the joinder to the Guaranty and Security Agreement by the undersigned new Grantor or Grantors (collectively, the New Grantors) may be accomplished by the execution of this Joinder in favor of Agent, for the benefit of the Lender Group and the Bank Product Providers; and
WHEREAS, each New Grantor (a) is an Affiliate of Borrowers and, as such, will benefit by virtue of the financial accommodations extended to Borrowers by the Lender Group or the Bank Product Providers and (b) by becoming a Grantor will benefit from certain rights granted to the Grantors pursuant to the terms of the Loan Documents and the Bank Product Agreements;
Annex I - 1
NOW, THEREFORE, for and in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agrees as follows:
1. Each Existing Grantor hereby reaffirms its respective obligations under the Guaranty and Security Agreement and each other Loan Document to which it is a party (collectively, the Reaffirmed Documents) . Each Existing Guarantor agrees that each Reaffirmed Document shall remain in full force and effect following the execution and delivery of the Credit Agreement and that all references in any of the Reaffirmed Documents to the Credit Agreement shall be deemed to refer to the Amended Credit Agreement.
2. In accordance with Section 26 of the Guaranty and Security Agreement, each New Grantor, by its signature below, becomes a Grantor and Guarantor under the Guaranty and Security Agreement with the same force and effect as if originally named therein as a Grantor and Guarantor and each New Grantor hereby (a) agrees to all of the terms and provisions of the Guaranty and Security Agreement applicable to it as a Grantor or Guarantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor or Guarantor thereunder are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality in the text thereof) on and as of the date hereof. In furtherance of the foregoing, each New Grantor hereby (i) jointly and severally unconditionally and irrevocably guarantees as a primary obligor and not merely as a surety the full and prompt payment when due, whether upon maturity, acceleration, or otherwise, of all of the Guarantied Obligations, and (ii) unconditionally grants, assigns, and pledges to Agent, for the benefit of the Lender Group and the Bank Product Providers, to secure the Secured Obligations, a continuing security interest in and to all of such New Grantors right, title and interest in and to the Collateral, in each case on the conditions and subject to the conditions set forth in the Guaranty and Security Agreement. Each reference to a Grantor or Guarantor in the Guaranty and Security Agreement shall be deemed to include each New Grantor. The Guaranty and Security Agreement is incorporated herein by reference.
3. Schedule 1, Commercial Tort Claims, Schedule 2, Copyrights, Schedule 3, Intellectual Property Licenses, Schedule 4, Patents, Schedule 5, Pledged Companies, Schedule 6, Trademarks, Schedule 7, Name; Chief Executive Office; Tax Identification Numbers and Organizational Numbers, Schedule 8, Owned Real Property, Schedule 9, Deposit Accounts and Securities Accounts, Schedule 10, Controlled Account Banks, and Schedule 11, List of Uniform Commercial Code Filing Jurisdictions, attached hereto replace in their entirety Schedule 1, Schedule 2, Schedule 3, Schedule 4, Schedule 5, Schedule 6, Schedule 7, Schedule 8, Schedule 9, Schedule 10, and Schedule 11, respectively, to the Guaranty and Security Agreement and shall be deemed a part thereof for all purposes of the Guaranty and Security Agreement.
4. Each New Grantor authorizes Agent at any time and from time to time to file, transmit, or communicate, as applicable, financing statements and amendments thereto (i) describing the Collateral as all personal property of debtor or all assets of debtor or words of similar effect, (ii) describing the Collateral as being of equal or lesser scope or with greater detail, or (iii) that contain any information required by part 5 of Article 9 of the Code for the
Annex I - 2
sufficiency or filing office acceptance. Each New Grantor also hereby ratifies any and all financing statements or amendments previously filed by Agent in any jurisdiction in connection with the Loan Documents.
5. Each New Grantor represents and warrants to Agent, the Lender Group and the Bank Product Providers that this Joinder has been duly executed and delivered by such New Grantor and constitutes its legal, valid, and binding obligation, enforceable against it in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium, or other similar laws affecting creditors rights generally and general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
6. This Joinder is a Loan Document. This Joinder may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Joinder. Delivery of an executed counterpart of this Joinder by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Joinder. Any party delivering an executed counterpart of this Joinder by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Joinder but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Joinder.
7. The Guaranty and Security Agreement, as supplemented hereby, shall remain in full force and effect.
8. THIS JOINDER SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE, JURY TRIAL WAIVER, AND JUDICIAL REFERENCE SET FORTH IN SECTION 25 OF THE SECURITY AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Annex I - 3
IN WITNESS WHEREOF, the parties hereto have caused this Joinder to the Guaranty and Security Agreement to be executed and delivered as of the day and year first above written.
NEW GRANTORS: | PROFESSIONAL POWER PRODUCTS, INC., an Illinois corporation | |||||
By: | /s/ Daniel P. Gorey | |||||
Name: | Daniel P. Gorey | |||||
Title: | Chief Financial Officer |
Signature Page to Joinder to Guaranty and Security Agreement
EXISTING GRANTORS | POWER SOLUTIONS INTERNATIONAL, INC. a Delaware corporation | |||||
By: | /s/ Daniel P. Gorey | |||||
Name: | Dan Gorey | |||||
Title: | Chief Financial Officer | |||||
THE W GROUP, INC. a Delaware corporation | ||||||
By: | /s/ Daniel P. Gorey | |||||
Name: | Dan Gorey | |||||
Title: | Chief Financial Officer | |||||
POWER SOLUTIONS, INC., an Illinois corporation | ||||||
By: | /s/ Daniel P. Gorey | |||||
Name: | Dan Gorey | |||||
Title: | Chief Financial Officer | |||||
POWER GREAT LAKES, INC., an Illinois corporation | ||||||
By: | /s/ Daniel P. Gorey | |||||
Name: | Dan Gorey | |||||
Title: | Chief Financial Officer | |||||
AUTO MANUFACTURING, INC., an Illinois corporation | ||||||
By: | /s/ Daniel P. Gorey | |||||
Name: | Dan Gorey | |||||
Title: | Chief Financial Officer |
Signature Page to Joinder to Guaranty and Security Agreement
TORQUE POWER SOURCE PARTS, INC. an Illinois corporation | ||||||
By: | /s/ Daniel P. Gorey | |||||
Name: | Dan Gorey | |||||
Title: | Chief Financial Officer | |||||
POWER PROPERTIES, L.L.C., an Illinois limited liability company | ||||||
By: | /s/ Daniel P. Gorey | |||||
Name: | Dan Gorey | |||||
Title: | Chief Financial Officer | |||||
POWER PRODUCTION, INC., an Illinois corporation | ||||||
By: | /s/ Daniel P. Gorey | |||||
Name: | Dan Gorey | |||||
Title: | Chief Financial Officer | |||||
POWER GLOBAL SOLUTIONS, INC., an Illinois corporation | ||||||
By: | /s/ Daniel P. Gorey | |||||
Name: | Dan Gorey | |||||
Title: | Chief Financial Officer | |||||
PSI INTERNATIONAL, LLC, an Illinois limited liability company | ||||||
By: | /s/ Daniel P. Gorey | |||||
Name: | Dan Gorey | |||||
Title: | Chief Financial Officer | |||||
XISYNC LLC, an Illinois limited liability company | ||||||
By: | /s/ Daniel P. Gorey | |||||
Name: | Dan Gorey | |||||
Title: | Chief Financial Officer |
Signature Page to Joinder to Guaranty and Security Agreement
AGENT: | WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association | |||||
By: | /s/ Brian Hynds | |||||
Name: | Brian Hynds | |||||
Title: | Vice President |
Signature Page to Joinder to Guaranty and Security Agreement
Schedule 1
Commercial Tort Claims
None.
Schedule 2
Copyrights
None.
Schedule 3
Intellectual Property Licenses
License Agreement dated December 7, 2012 by and between Power Solutions International, Inc. (Parent) and MAT-PSI Holdings, LLC (MAT-PSI), pursuant to which Parent licenses to MAT-PSI certain Intellectual Property (as defined in the License Agreement).
Confidential Non-Exclusive Patent License and Settlement Agreement by and between Power Solutions, Inc. (Power Solutions) and certain other parties, pursuant to which Power Solutions received a license to six patents, all of which relate to Grantors Mastertrak product line.
Software License Agreement and Software Support Agreement dated September 24, 2007 by and between Infor Global Solutions, Inc. and PPPI, together with related Order Forms and other agreements (license-in).
Schedule 4
Patents
Applications:
OWNER |
APPLICATION NUMBER | DESCRIPTION | ||
Power Solutions International, Inc. | 13738279 | Driving System for Engine Auxiliary Power |
Schedule 5
Pledged Companies
Pledged Company |
Record Owner |
Certificate No. |
No. Shares/Interest |
Percent Pledged | ||||
The W Group, Inc. | Power Solutions International, Inc. | 006 | 1,000 shares of common stock issued and outstanding. 1,000 shares authorized. | 100% | ||||
Professional Power Products, Inc. | Power Solutions International, Inc. | 5 | 1,000 shares of common stock issued and outstanding | 100% | ||||
Power Solutions, Inc. | The W Group, Inc. | 15 | 1,000 shares of common stock issued and outstanding. 5,000 shares authorized. | 100% | ||||
Power Great Lakes, Inc. | The W Group, Inc. | 15 | 1,000 shares of common stock issued and outstanding. 50,000 shares authorized. | 100% | ||||
Auto Manufacturing, Inc. | The W Group, Inc. | 12 | 1,000 shares of common stock issued and outstanding. 10,000 shares authorized. | 100% | ||||
Torque Power Source Parts, Inc. | The W Group, Inc. | 3 | 1,000 shares of common stock issued and outstanding. 10,000 shares authorized. | 100% | ||||
Power Properties, L.L.C. | The W Group, Inc. | N/A | The W Group, Inc. is the sole member | 100% | ||||
Power Production, Inc. | The W Group, Inc. | 001 | 1,000 shares of common stock issued and outstanding. 10,000 shares authorized. | 100% | ||||
Power Global Solutions, Inc. | The W Group, Inc. | 001 | 1,000 shares of common stock issued and outstanding. 10,000 shares authorized. | 100% | ||||
Professional Power Products, Inc. | Power Solutions International, Inc. | . | 100% | |||||
PSI International, LLC | The W Group, Inc. | N/A | The W Group, Inc. is the sole member | 100% | ||||
XISync LLC | The W Group, Inc. | N/A | The W Group, Inc. is the sole member | 100% |
Schedule 6
Trademarks
Owner | Registration Number | Trademark | ||
XISync, LLC | 2854543 | MASTERTRAK |
Unregistered trademark held by Professional Power Products, Inc.:
Trade names used by Professional Power Products, Inc.:
V77 Fuel Alarm Panel
Power Master
Power Glide
Schedule 7
Name; Chief Executive Office; Tax Identification Numbers and Organizational Numbers
Name |
Jurisdiction |
Chief Executive Office |
Tax ID Number |
Organizational | ||||
Power Solutions International, Inc. | Delaware | 201 Mittel Drive Wood Dale, IL 60191 |
33-0963637 | 4958464 | ||||
The W Group, Inc. | Delaware | 201 Mittel Drive Wood Dale, IL 60191 |
36-4456949 | 3422265 | ||||
Professional Power Products, Inc. | Illinois | 201 Mittel Drive Wood Dale, IL 60191 |
36-3859038 | 57073608 | ||||
Power Solutions, Inc. | Illinois | 201 Mittel Drive Wood Dale, IL 60191 |
36-3585770 | 55083436 | ||||
Power Great Lakes, Inc. | Illinois | 201 Mittel Drive Wood Dale, IL 60191 |
36-3398606 | 54018592 | ||||
Auto Manufacturing, Inc. | Illinois | 201 Mittel Drive Wood Dale, IL 60191 |
36-4168925 | 59504479 | ||||
Torque Power Source Parts, Inc. | Illinois | 201 Mittel Drive Wood Dale, IL 60191 |
36-4348042 | 60877998 | ||||
Power Properties, L.L.C. | Illinois | 201 Mittel Drive Wood Dale, IL 60191 |
36-4168893 | 00124486 | ||||
Power Production, Inc. | Illinois | 201 Mittel Drive Wood Dale, IL 60191 |
20-2043127 | 63884049 | ||||
Power Global Solutions, Inc. | Illinois | 201 Mittel Drive Wood Dale, IL 60191 |
20-3411429 | 64402625 | ||||
Professional Power Products, Inc. | Illinois | 201 Mittel Drive Wood Dale, IL 60191 |
57073608 | |||||
PSI International, LLC | Illinois | 201 Mittel Drive Wood Dale, IL 60191 |
20-3931125 | 01704354 | ||||
XISync LLC | Illinois | 201 Mittel Drive Wood Dale, IL 60191 |
20-5841157 | 02001357 |
Schedule 8
Owned Real Property
655 Wheat Lane, Wood Dale, IL 60191, owned by Power Properties, L.L.C.
Schedule 9
Deposit Account and Securities Accounts
OWNER |
TYPE OF ACCOUNT |
BANK OR INTERMEDIARY |
ACCOUNT NUMBERS | |||
Power Solutions International, Inc. | Cash Collateral Account | Wells Fargo Bank, N.A. | 4128970159 | |||
Power Solutions International, Inc. | Master Operating Account | Wells Fargo Bank, N.A. | 4128970167 | |||
Power Solutions International, Inc. | Payroll Account | Wells Fargo Bank, N.A. | 4128970175 | |||
Power Solutions International, Inc. | Cash Disbursements (Wires/ACH) | Wells Fargo Bank, N.A. | 4128995057 | |||
Power Solutions International, Inc. | Cash Disbursements (Checks) | Wells Fargo Bank, N.A. | 9622000249 | |||
Power Solutions International, Inc. | Self Insurance Disbursement Account | Wells Fargo Bank, N.A. | 9622000256 | |||
Professional Power Products, Inc. | Business Checking | First National Bank and Trust Company | 1190408 | |||
Professional Power Products, Inc. | Checking - Operating Account | Crystal Lake Bank & Trust Company, N.A.* | 0650016246 | |||
Professional Power Products, Inc. | Checking - Professional Power Products International, Inc. | Crystal Lake Bank & Trust Company, N.A.* | 0650021940 | |||
Professional Power Products, Inc. | Checking - Payroll Account | Crystal Lake Bank & Trust Company, N.A.* | 0650024710 | |||
Professional Power Products, Inc. | Checking - Business Checking | Crystal Lake Bank & Trust Company, N.A.* | 1190408 |
* | Accounts will be closed and moved to Wells Fargo Bank. |
Schedule 10
Controlled Accounts Banks
Wells Fargo Bank, National Association
First National Bank and Trust Company
Schedule 11
List of Uniform Commercial Code Filing Jurisdictions
Grantor |
Jurisdictions | |
Power Solutions International, Inc. | Delaware; fixture filing in DuPage County, IL | |
The W Group, Inc. | Delaware | |
Professional Power Products, Inc. | Illinois | |
Power Solutions, Inc. | Illinois | |
Power Great Lakes, Inc. | Illinois; fixture filing in DuPage County, IL | |
Auto Manufacturing, Inc. | Illinois | |
Torque Power Source Parts, Inc. | Illinois | |
Power Properties, L.L.C. | Illinois; fixture filing in DuPage County, IL | |
Power Production, Inc. | Illinois | |
Power Global Solutions, Inc. | Illinois | |
Professional Power Products, Inc. | Illinois | |
PSI International, LLC | Illinois | |
XISync LLC | Illinois |
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