Exhibit 10(s)


 


AMENDMENT
NO. 1 TO CREDIT AGREEMENT


 


This
Amendment No. 1 to Credit Agreement (this “Agreement”) dated as of October 25,
2005 is made by and among THE TORO COMPANY,
a Delaware corporation (“Toro”), TORO
CREDIT COMPANY, a Minnesota corporation (“TCC”), TORO MANUFACTURING LLC, a Delaware limited
liability company (“Manufacturing”), EXMARK
MANUFACTURING COMPANY INCORPORATED, a Nebraska corporation (“Exmark”,
together with Toro, TCC, and Manufacturing sometimes collectively referred to
herein as the “Companies”), and TORO
INTERNATIONAL COMPANY, a Minnesota corporation, TOVER OVERSEAS B.V., a Netherlands company,
and TORO FACTORING COMPANY LIMITED,
a Guernsey, Channel Islands company (the “Additional Borrowers”, and
together with the Companies, the “Borrowers” and, each a “Borrower”),
each lender from time to time party hereto (collectively, the “Lenders”
and individually, a “Lender”), and BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer.


 


W I T N E S S E T H:


 


WHEREAS,
the Borrowers, the Administrative Agent and the Lenders have entered into that
certain Credit Agreement dated as of September 8, 2004 (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 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 advised the Administrative Agent and the Lenders that the
Borrowers desire to amend certain provisions of the Credit Agreement as set
forth herein in connection with adjustments to the Applicable Rate, extension
of the Maturity Date and the amount by which the Borrowers can increase the
Aggregate Commitments, and the Administrative Agent and the Lenders 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)                                  The definition of “Applicable Rate” in Section 1.01
is hereby amended by deleting the pricing grid and inserting the following new
pricing grid in lieu thereof:


 





















 


	
  Pricing

  Level

  	
   

  	
  Debt Ratings

  S&P/Moody’s

  	
   

  	
  Facility Fee

  	
   

  	
  Eurocurrency 

  Rate and

  Letters of 

  Credit

  	
   

  	
  Utilization

  Fee

  	
   

  
	
  1

  	
   

  	
  3
  BBB+/Baa1

  	
   

  	
  0.100

  	
  %

  	
  0.400

  	
  %

  	
  0.0

  	
  %

  
	
  2

  	
   

  	
  BBB/Baa2

  	
   

  	
  0.125

  	
  %

  	
  0.500

  	
  %

  	
  0.0

  	
  %

  
	
  3

  	
   

  	
  BBB-/Baa3

  	
   

  	
  0.150

  	
  %

  	
  0.600

  	
  %

  	
  0.0

  	
  %

  
	
  4

  	
   

  	
  BB+/Ba1

  	
   

  	
  0.175

  	
  %

  	
  0.825

  	
  %

  	
  0.0

  	
  %

  
	
  5

  	
   

  	
  £
  BB/Ba2

  	
   

  	
  0.225

  	
  %

  	
  1.025

  	
  %

  	
  0.0

  	
  %

  



 


(b)                                 The definition of “Maturity Date” in Section 1.01
is hereby amended by deleting the definition in its entirety and inserting the
following definition in lieu thereof:


 


“ ‘Maturity
Date’ means October 25, 2010.”


 


(c)                                  Section 2.14(a) is hereby amended by deleting the number “$50,000,000”
in the fourth line of such subsection and inserting “$75,000,000” in lieu
thereof.


 


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 Administrative Agent shall have
received each of the following documents or instruments in form and substance
reasonably acceptable to the Administrative Agent:


 


(i)                                     ten (10) original counterparts of
this Agreement, duly executed by the Borrowers, the Administrative Agent, and
the Required Lenders, together with all schedules and exhibits thereto duly completed;


 


(ii)                                  such other documents, instruments,
opinions, certifications, undertakings, further assurances and other matters as
the Administrative Agent shall reasonably require.


 


(b)                                 payment of (i) all reasonable out of
pocket fees and expenses of counsel to the Administrative Agent incurred in
connection with the execution and delivery of this Agreement to the extent
invoiced prior to the date hereof; (ii) an upfront fee to each
Lender executing this Agreement by 12:00 noon (Eastern time) on October 25,
2005, such upfront fee for each such Lender’s own account; and (iii) all other fees agreed to
be paid.


 


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 Agreement, each of the Borrowers represents and warrants to the
Administrative Agent and the Lenders as follows:


 


2





















 


(a)                                  The representations and warranties of (i) the
Borrowers contained in Article V (after giving effect to this
Agreement) 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 Agreement, 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 Governmental Authority that purports to affect any transaction
contemplated under this Agreement or the ability of any Borrower to perform its
respective obligations under this Agreement;


 


(c)                                  There has not occurred since October 31,
2004, 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 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 11.01 of the Credit
Agreement.


 


6.                                       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.


 


7.                                       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.


 


8.                                       Governing Law. 
This Agreement shall in all respects be governed by, and construed in
accordance with, the laws of the state of New York.


 


3





















 


9.                                       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.


 


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 Agreement 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
Agreement.


 


[Signature pages follow.]


 


4





















 


IN
WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to 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/ Stephen P.
  Wolfe

  	
   

  
	
   

  	
  Name:

  	
  Stephen P. Wolfe

  	
   

  
	
   

  	
  Title:

  	
  Vice President –
  Finance, Treasurer & CFO

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas J.
  Larson

  	
   

  
	
   

  	
  Name:

  	
  Thomas J. Larson

  	
   

  
	
   

  	
  Title:

  	
  Assistant
  Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TORO
  CREDIT COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas J.
  Larson

  	
   

  
	
   

  	
  Name:

  	
  Thomas J. Larson

  	
   

  
	
   

  	
  Title:

  	
  Secretary -
  Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TORO
  MANUFACTURING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen P.
  Wolfe

  	
   

  
	
   

  	
  Name:

  	
  Stephen P. Wolfe

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXMARK
  MANUFACTURING COMPANY

  
	
   

  	
  INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Lawrence
  McIntyre

  	
   

  
	
   

  	
  Name:

  	
  J. Lawrence
  McIntyre

  	
   

  
	
   

  	
  Title:

  	
  Vice President &
  Secretary

  	
   

  
															



 


1





















 


	
   

  	
  TORO
  INTERNATIONAL COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Lawrence
  McIntyre

  	
   

  
	
   

  	
  Name:

  	
  J. Lawrence
  McIntyre

  	
   

  
	
   

  	
  Title:

  	
  Vice President &
  Secretary

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TOVER
  OVERSEAS B.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paula Graff

  	
   

  
	
   

  	
  Name:

  	
  Paula Graff

  	
   

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TORO
  FACTORING COMPANY LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paula Graff

  	
   

  
	
   

  	
  Name:

  	
  Paula Graff

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
												



 


2





















 


	
   

  	
  BANK
  OF AMERICA, N.A., as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Folino

  	
   

  
	
   

  	
  Name:

  	
  Paul Folino

  	
   

  
	
   

  	
  Title:

  	
  Assistant Vice
  President

  	
   

  
						



 


3





















 


	
   

  	
  BANK
  OF AMERICA, N.A., as a Lender, L/C

  
	
   

  	
  Issuer and Swing
  Line Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles R.
  Dickerson

  	
   

  
	
   

  	
  Name:

  	
  Charles R.
  Dickerson

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
						



 


4





















 


	
   

  	
  SUNTRUST BANK, as a Lender and a Co-

  
	
   

  	
  Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Molly J. Drennan

  	
   

  
	
   

  	
  Name:

  	
  Molly J. Drennan

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


5





















 


	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION, as a

  
	
   

  	
  Lender and a
  Co-Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael J.
  Staloch

  	
   

  
	
   

  	
  Name:

  	
  Michael J.
  Staloch

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
						



 


6





















 


	
   

  	
  Harris N.A., as
  successor by merger to

  
	
   

  	
  HARRIS TRUST AND
  SAVINGS BANK, as a

  
	
   

  	
  Lender and a
  Co-Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patrick J.
  McDonnell

  	
   

  
	
   

  	
  Name:

  	
  Patrick J.
  McDonnell

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
						



 


7





















 


	
   

  	
  WELLS FARGO
  BANK, NATIONAL

  
	
   

  	
  ASSOCIATION,
  as a Lender and a Co-

  
	
   

  	
  Documentation
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott Bjelde

  	
   

  
	
   

  	
  Name:

  	
  Scott Bjelde

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer
  Barrett

  	
   

  
	
   

  	
  Name:

  	
  Jennifer Barrett

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
									



 


8





















 


	
   

  	
  THE BANK OF NEW
  YORK, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Walter C.
  Parelli

  	
   

  
	
   

  	
  Name:

  	
  Walter C.
  Parelli

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


9