ex10-1.htm


    
      

    

    Exhibit
10.1

     

    
       

      
        
          
            FIRST
AMENDMENT TO SENIOR SECURED TERM LOAN AGREEMENT

             

            THIS
FIRST
AMENDMENT TO SENIOR SECURED TERM LOAN AGREEMENT (this “Amendment”),
dated as of June 3, 2009, by and among MEA
HOLDINGS, INC., a Wisconsin corporation (“Borrower”),
each party listed as a “Guarantor” on the signature pages hereto (collectively,
the “Guarantors”),
KEYBANK
NATIONAL ASSOCIATION (“KeyBank”),
as Agent for itself and the other Lenders from time to time a party to the Loan
Agreement (as hereinafter defined) (KeyBank, in its capacity as Agent, is
hereinafter referred to as “Agent”),
and each of the undersigned “Lenders” (hereinafter referred to collectively as
the “Lenders”).

             

            W
 I 
T 
N
 E 
S 
S 
E 
T
 H:

             

            WHEREAS,
the Borrower, KeyBank, Agent and the other Lenders, among others, are party to
that certain Senior Secured Term Loan Agreement dated as of March 10, 2008, (as
the same may be varied, extended, supplemented, consolidated, amended, replaced,
renewed, modified or restated, the “Loan
Agreement”); and

             

            WHEREAS,
the Borrower has requested that the Lenders modify the Loan Agreement in certain
respects and the Lenders have agreed to modifications on the terms and
conditions set forth below;

             

            NOW,
THEREFORE, in consideration of the mutual covenants, promises, and agreements
set forth hereinbelow, and for other good and valuable consideration, the
receipt, adequacy, and sufficiency of which are hereby acknowledged, and as a
material inducement to the Lenders to agree to such modifications, the parties
do hereby covenant and agree as follows:

             

            1.    Definitions.  Capitalized
terms used in this Amendment, but which are not otherwise expressly defined in
this Amendment, shall have the respective meanings given thereto in the Loan
Agreement.

             

            2.    Modifications
of the Loan Agreement.  The Borrower, Agent and the Lenders do
hereby modify and amend the Loan Agreement as follows:

             

            (a)    Section
1.1 of the Loan Agreement is hereby amended by deleting in its entirety the
defined term “Applicable Margin” and inserting in lieu thereof the
following:

             

            “Applicable
Margin.  4.50%.”

             

            (b)    Section
2.5 of the Loan Agreement is hereby amended by adding a new clause (f) at the
end thereof to read as follows:

             

            “(f)           Covenant
Compliance.  The Borrower shall have delivered to Agent a
statement certified by the chief financial officer or chief accounting officer
of Parent in such form as the Agent may approve, in its reasonable discretion,
demonstrating pro forma compliance, giving effect to the extension of the
Maturity Date, with the financial covenant set forth in §9.2(d).”

             

            (c)    Section
9.1 of the Loan Agreement is hereby deleted in its entirety and the phrase
“Intentionally Deleted” is inserted in lieu thereof, and the reference to
Section 9.1 contained in Section 11.1(c) of the Loan Agreement is hereby
deleted.

             

            
              
                
                

              

              
                
                

                
                  

                

              

              
                
                

              

               

            

            (d)    Section
9.2 of the Loan Agreement is hereby deleted in its entirety and the following is
inserted in lieu thereof:

             

            “§9.2      
Consolidated
Senior Indebtedness to Adjusted Consolidated EBITDA.  The
Borrower will not permit the ratio of its Consolidated Senior Indebtedness to
Adjusted Consolidated EBITDA to exceed the following respective ratios during
the following respective periods:

             

            (a)           at
any time on or prior to the Maturity Date (without giving effect to any
extension thereof), 3.50 to 1.00; provided, however, that during not more than
one (1) calendar quarter during the term of the Loan (without giving effect to
any extension of the Maturity Date) the ratio of Consolidated Senior
Indebtedness to Adjusted Consolidated EBITDA may exceed 3.50 to 1.00 provided
that such ratio is in no event greater than 3.75 to 1.00;
or

             

            (d)           at
any time following the extension of the Maturity Date pursuant to §2.5, 3.00 to
1.00.”

             

            3.    Conditions.  The
effectiveness of this Amendment shall be subject to the satisfaction of the
following conditions precedent (the date all such conditions have been satisfied
or waived in writing by the Lenders hereinafter referred to as the “Amendment
Effective Date”):

             

            (i)    Execution
of this Amendment.  The Agent shall have received executed
originals of counterpart signature pages to this Amendment from the Borrower,
the Guarantors and the Required Lenders.

             

            (ii)    Mandatory
Prepayment.  The Borrower shall have paid $50,000,000 in
immediately available funds to the Agent for the respective accounts of the
Lenders for application to the outstanding principal balance of the
Loans.

             

            (iii)    Payment
of Fees. The Borrower shall have paid to the Agent (i) for its own
account, certain fees for services rendered or to be rendered in connection with
this Amendment as provided pursuant to the separate fee letter dated on or about
the date hereof between the Borrower and the Agent and (ii) for the account of
the Lenders executing and delivering their signature page to this Amendment
prior to its effectiveness, an amendment fee in an amount equal to 50 basis
points on each such Lender’s Term Loan Commitment.  All such fees
shall be fully earned when paid and nonrefundable under any
circumstances.

             

            (iv)    No
Default.  There shall exist no Default or Event of
Default.

             

            (v)    Representations
and Warranties.  The representations and warranties contained
in Section 6 of the Loan Agreement shall have been true and correct in all
material respects when made and shall also be true and correct in all material
respects on the Amendment Effective Date (except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they shall have been true and correct in all material respects as of such
earlier date).

             

            4.    References
to Loan Agreement.  All references in the Loan Documents to the
Loan Agreement shall be deemed a reference to the Loan Agreement, as modified
and amended herein.

             

            5.    Consent
of Borrower and Guarantors.  Borrower and Guarantors hereby
acknowledge, represent and agree that the Loan Documents remain in full force
and effect and constitute the valid and legally binding obligations of the
Borrower and the Guarantors enforceable against such Persons in accordance with
their respective terms.

             

            
              
                
                

              

              
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            6.    Representations.  Each
of the Borrower and each Guarantor represents and warrants to Agent and the
Lenders as follows:

             

            (a)    Authorization.  The
execution, delivery and performance of this Amendment and the transactions
contemplated hereby (i) are within the authority of the Borrower and such
Guarantor, (ii) have been duly authorized by all necessary proceedings on
the part of the Borrower and such Guarantor, (iii) do not and will not
conflict with or result in any breach or contravention of any provision of law,
statute, rule or regulation to which the Borrower or such Guarantor is subject
or any judgment, order, writ, injunction, license or permit applicable to the
Borrower or such Guarantor, (iv) do not and will not conflict with or
constitute a default (whether with the passage of time or the giving of notice,
or both) under any provision of the articles of incorporation, bylaws, operating
agreement, partnership agreement, declaration of trust or other charter
documents of, or any agreement or other instrument binding upon, the Borrower or
such Guarantor, or any of their respective properties, (v) do not and will
not result in or require the imposition of any lien or other encumbrance on any
of the properties, assets or rights of the Borrower or any Guarantor, and (vi)
do not require the approval or consent of any Person other than those already
obtained and delivered to Agent.

             

            (b)    Enforceability.  The
execution and delivery of this Amendment are valid and legally binding
obligations of the Borrower and the Guarantors, enforceable in accordance with
the respective terms and provisions hereof, except as enforceability is limited
by bankruptcy, insolvency, reorganization, moratorium or other laws relating to
or affecting generally the enforcement of creditors’ rights and except to the
extent that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.

             

            (c)    Approvals.  The
execution, delivery and performance of this Amendment and the transactions
contemplated hereby and thereby do not require the approval or consent of, or
filing with, any governmental agency or authority other than those already
obtained.

             

            7.    No
Default.  By execution hereof, the Borrower certifies that no
Default or Event of Default has occurred and is continuing.

             

            8.    Waiver
of Claims. Each of the Borrower and each Guarantor acknowledges,
represents and agrees that it has no defenses, setoffs, claims, counterclaims or
causes of action of any kind or nature whatsoever with respect to the Loan
Documents, the administration or funding of the Loan or with respect to any acts
or omissions of Agent or any Lender, or any past or present officers, agents or
employees of Agent or any Lender, and the Borrower does hereby expressly waive,
release and relinquish any and all such defenses, setoffs, claims, counterclaims
and causes of action, if any.

             

            9.    Ratification,
etc.  Except as hereinabove set forth, all terms, covenants and
provisions of the Loan Agreement remain unaltered and in full force and effect,
and the parties hereto do hereby expressly ratify and confirm the Loan Documents
and the Loan Agreement as modified and amended herein.  Nothing in
this Amendment shall be deemed or construed to constitute, and there has not
otherwise occurred, a novation, cancellation, satisfaction, release,
extinguishment or substitution of the indebtedness evidenced by the Notes or the
other obligations of the Borrower or any Guarantor under the Loan
Documents.  Borrower, Guarantors, Agent and the Lenders hereby
acknowledge and agree that, for purposes of correcting a scrivener’s error with
respect to the date set forth in the defined term “Maturity Date” in Section 1.1
of the Loan Agreement, the date set forth in said defined term is March 10,
2011.

             

            
              
                
                

              

              
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            10.    Amendment
as Loan Document.  This Amendment shall constitute a Loan
Document.

             

            11.    Counterparts.  This
Amendment may be executed in any number of counterparts which shall together
constitute but one and the same agreement.

             

            12.    Miscellaneous.  This
Amendment shall, pursuant to New York General Obligations Law
section 5-1401, be construed and enforced in accordance with the laws of
the State of New York.  This Amendment shall be effective upon the
execution hereof by Borrower, Guarantors, Agent and the Lenders and shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective permitted successors, successors-in-title and assigns as provided in
the Loan Agreement.  All captions in this Amendment are included
herein for convenience of reference only and shall not constitute part of this
Amendment for any other purpose.

             

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            IN
WITNESS WHEREOF, the parties hereto, acting by and through their
respective duly authorized officers and/or other representatives, have duly
executed this Amendment, under seal, as of the day and year first above
written.

             

            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              	 	
                                                                      BORROWER:

                                                                    	 
	 	 	 
	 	MEA HOLDINGS, INC., a
      Wisconsin corporation	 
	 	 	 	 
	 	      
                                                                      By:

                                                                    	/s/
      Charles M. Handy	 
	 	Name: Charles
      M. Handy	 
	 	Title:  
      Chief Financial Officer	 
	 	 	 
	 	
                                                                       

                                                                    	 


                                                            

                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

             

            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      	 
      	
                                              GUARANTORS:

                                            	 
      
	 
      	 
      	 
      
	 
      	
                                              COGDELL
      SPENCER, INC., a Maryland corporation

                                            	 
      
	 
      	 
      	 
      	 
      
	 	 	 	 
	 
      	
                                              By:

                                            	
                                              /s/ Frank
      C. Spencer

                                            	 
      
	 
      	
                                              Name: Frank
      C. Spencer

                                            	 
      
	 
      	
                                              Title:  
      President and Chief Executive Officer

                                            	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                                              COGDELL
      SPENCER, LP, a Delaware limited
      partnership

                                            	 
      
	 
      	 
      	 
      
	 	 	 
	 
      	
                                              By:
      CS Business Trust I, a Maryland Business Trust, its General
      Partner

                                            	 
      
	 
      	 
      	 
      	 
      
	 
      	
                                              By:

                                            	
                                              /s/ Charles
      M. Handy 

                                            	 
      
	 
      	
                                              Name: Charles
      M. Handy 

                                            	 
      
	 
      	
                                              Title:  
      Chief Financial Officer

                                            	 
      
	 
      	 
      	 
      
	 
      	
                                              CS
      BUSINESS TRUST I, a Maryland Business
      Trust

                                            	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                                              By:

                                            	
                                              /s/ Charles
      M. Handy 

                                            	 
      
	 
      	
                                              Name: Charles
      M. Handy 

                                            	 
      
	 
      	
                                              Title:  
      Trustee

                                            	 
      
	 
      	 
      	 
      
	 
      	
                                              CS
      BUSINESS TRUST II, a Maryland Business
      Trust

                                            	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                                              By:

                                            	
                                              /s/ Charles
      M. Handy 

                                            	 
      
	 
      	
                                              Name: Charles
      M. Handy 

                                            	 
      
	 
      	
                                              Title:  
      Trustee

                                            	 
      


                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              



            
              
                
                

              

              
                
                

                
                  

                

              

              
                
                

              

               

              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    	 
      	
                                            ERDMAN
      COMPANY (F/K/A MARSHALL ERDMAN & ASSOCIATES, INC.), a Wisconsin
      corporation

                                          	 
      
	 
      	 
      	 
      	 
      
	 	 	 	 
	 
      	
                                            By:

                                          	
                                            /s/ Brian
      Happ

                                          	 
      
	 
      	
                                            Name: Brian
      Happ

                                          	 
      
	 
      	
                                            Title:  
      Executive
      VP & COO

                                          	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                                            MARSHALL
      ERDMAN DEVELOPMENT, LLC, a Wisconsin limited liability
      company

                                          	 
      
	 
      	 
      	 
      
	 	 	 
	 
      	
                                            By:

                                          	
                                            /s/ Brian
      Happ

                                          	 
      
	 
      	
                                            Name: Brian
      Happ

                                          	 
      
	 
      	
                                            Title:  
      Executive
      VP & COO

                                          	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                                            ERDMAN
      ARCHITECTURE & ENGINEERING COMPANY (F/K/A MEA 1, INC.), a
      Wisconsin corporation

                                          	 
      
	 
      	 
      	 
      
	 	 	 
	 
      	
                                            By:

                                          	
                                            /s/ Brian
      Happ

                                          	 
      
	 
      	
                                            Name: Brian
      Happ

                                          	 
      
	 
      	
                                            Title:  
      Executive
      VP & COO

                                          	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      


                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

               

              
                
                  
                  

                

                
                  
                  

                  
                    

                  

                

                
                  
                  

                

              

               

              
                
                  
                    
                      
                        
                          
                            
                              
                                	 
      	
                                        LENDERS:

                                      	 
      
	 
      	 
      	 
      
	 
      	
                                        KEYBANK NATIONAL
      ASSOCIATION, individually and as Agent

                                      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                                        By:

                                      	
                                        /s/ Candice
      King

                                      	 
      
	 
      	
                                        Name: Candice
      King

                                      	 
      
	 
      	
                                        Title:  
      Vice President

                                      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                                        BANK
      OF AMERICA, N.A.

                                      	 
      
	 
      	 
      	 
      
	 
      	
                                        By:

                                      	
                                        /s/ Mark
      L. Bass 

                                      	 
      
	 
      	
                                        Name: Mark
      L. Bass 

                                      	 
      
	 
      	
                                        Title:  
      Senior Vice President

                                      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                                        WACHOVIA
      BANK, NATIONAL ASSOCIATION

                                      	 
      
	 
      	 
      	 
      
	 
      	
                                        By:

                                      	 
      	 
      
	 
      	
                                        Name:

                                      	 
      
	 
      	
                                        Title:

                                      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                                        CITICORP
      NORTH AMERICA, INC.

                                      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                                        By:

                                      	
                                        /s/ Ricardo
      James

                                      	 
      
	 
      	
                                        Name: Ricardo
      James

                                      	 
      
	 
      	
                                        Title:  
      Director

                                      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                                        BRANCH
      BANKING AND TRUST COMPANY

                                      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                                        By:

                                      	
                                        /s/ H.
      Wright Uzzell, Jr.

                                      	 
      
	 
      	
                                        Name:
      H. Wright Uzzell, Jr.

                                      	 
      
	 
      	
                                        Title:  
      Senior Vice President

                                      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                                        M
      & I MARSHALL & ILSLEY BANK

                                      	 
      
	 
      	 
      	 
      
	 
      	
                                        By:

                                      	
                                        /s/ Jason
      D. Lavicky

                                      	 
      
	 
      	
                                        Name:
      Jason D. Lavicky 

                                      	 
      
	 
      	
                                        Title:   Vice
      President