Exhibit 10.22
AMENDMENT NO 3, CONSENT AND WAIVER dated as of August 4,
1997 (this "Amendment"), to the Credit Agreement dated as of
August 23, 1995, as amended by Amendment No. 1 thereto dated as
of December 31, 1995, and Amendment No. 2 thereto dated as of
December 31, 1996 (the "Credit Agreement"), among JOHNSTOWN
AMERICA INDUSTRIES INC., a Delaware corporation (the "Borrower"),
the Lenders (as defined in the Credit Agreement), THE CHASE
MANHATTAN BANK, a New York banking corporation formerly known as
Chemical Bank, as swingline lender (in such capacity, the
"Swingline Lender"), as administrative agent (in such capacity,
the "Administrative Agent") and as collateral agent (in such
capacity, the "Collateral Agent") for the Lenders, THE FIRST
NATIONAL. BANK OF BOSTON and THE FIRST NATIONAL BANK OF CHICAGO,
as co-agents (in such capacity, the "Co-Agents"), and THE CHASE
MANHATTAN BANK DELAWARE, a Delaware banking corporation formerly
known as Chemical Bank Delaware, as Issuing Bank (as defined in
the Credit Agreement).
A. Pursuant to the Credit Agreement, the Lenders and the Issuing
Bank have extended and agreed to extend credit to the Borrower, in each case
pursuant to the terms and subject to the conditions set forth therein.
B. The Borrower has informed the Administrative Agent that it
proposes (i) to issue up to $100,000,000 aggregate principal amount of its
11-3/4% Series B Senior Subordinated Notes due 2005 (the "Additional
Subordinated Notes") having covenants, events of default and other terms and
provisions (including with respect to the subordination thereof)
substantially identical to the Borrower's existing Subordinated Notes and
(ii) concurrently with the issuance of the Additional Subordinated Notes and
conditioned thereupon, to permanently reduce the Total Revolving Credit
Commitment from $100,000,000 to $75,000,000 (the "Commitment Reduction").
C. The Borrower has requested that the Required Lenders (i) consent
to the issuance by the Borrower of the Additional Subordinated Notes, (ii) waive
compliance by the Borrower with the provisions of Section 6.01 of the Credit
Agreement to the extent necessary to allow the issuance of the Additional
Subordinated Note, (iii) waive the irrevocable notice required by Section
2.09(b) of the Credit Agreement in connection with the Commitment Reduction,
(iv) waive any prepayment of Term Loans that would otherwise be required in
respect of the year ending December 31, 1997, under Section 2.13(e) (Excess Cash
Flow) of the Credit Agreement and (v) agree to amend certain provisions of the
Credit Agreement as set forth herein.
D. The Required Lenders are willing so to amend the Credit Agreement
and to grant such consent and waivers pursuant to the terms and subject to the
conditions set forth herein.
E. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. CONSENT AND WAIVERS. (a) The Required Lenders
hereby consent to the issuance by the Borrower of the Additional
Subordinated Notes, PROVIDED that the Net Cash Proceeds thereof are used to
prepay the Term Loans pursuant to and in accordance with Section 2.13 of
the Credit Agreement.
(b) The Required Lenders hereby waive (i) compliance by the Borrower
with the provisions of Section 6.01 of the Credit Agreement to the extent,
and only to the extent, necessary to permit the issuance by the Borrower of
the Additional Subordinated Notes, (ii) the three Business Days' prior
irrevocable notice required by Section 2.09(h) of the Credit Agreement with
respect to the Commitment Reduction and (iii) compliance by the Borrower
with Section 2.13(e) of the Credit Agreement with respect to the year
ending December 31, 1997.
SECTION 2. AGREEMENT. The Borrower hereby agrees to apply
100% of the Net Cash Proceeds of the Additional Subordinated Notes to
prepay outstanding Term Loans in accordance with Section 2.13 of the Credit
Agreement. In connection therewith, the Borrower hereby elects, pursuant
to Section 2.13(h) of the Credit Agreement, to apply such Net Cash Proceeds
initially to the scheduled installments of principal of the Term Loans
coming due on September 30, 1997, and December 31, 1997.
SECTION 3. AMENDMENT TO SECTION 6.10 OF THE CREDIT AGREEMENT.
Section 6.10 to the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
SECTION 6.10 TOTAL DEBT RATIO. Permit the ratio of (i) Total
Debt as of the last day of any fiscal quarter ending on any date or during
any period set forth below to (ii) Consolidated EBITDA for the period of
four consecutive fiscal quarters ending on such date, to be in excess of
the ratio set forth below opposite such date or period:
Date or Period Ratio
-------------- -----
June 30, 1997 through and
including September 30, 1997 5.75 to 1
December 3l, 1997 5.50 to 1
March 31, 1998 through
and including June 30, 1998 5.25 to 1
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September 30, 1998 through
and including December 31, 1999 5.00 to 1
March 31, 2000 through
and including December 31, 2000 4.75 to 1
March 31, 2001 through
and including December 31, 2001 4.25 to 1
March 31, 2002 and thereafter 3.75 to 1
SECTION 4. AMENDMENT TO SECTION 6.11 OF THE CREDIT AGREEMENT
Section 6.11 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"SECTION 6.11. INTEREST COVERAGE RATIO. Permit the ratio of
(i) Consolidated EBITDA minus Consolidated Capital Expenditures to
(ii) Consolidated Interest Expense for any period of four consecutive
fiscal quarters ending on any date or during any period set forth below to
be less than the ratio set forth below opposite such date or period:
Date or Period Ratio
--------------- -----
June 30, 1997 through
and including December 31, 1997 1.30 to 1
March 31, 1998 through and
including June 30, 1998 1.35 to 1
September 30, 1998 1.40 to 1
December 31, 1998 through
and including December 31, 2001 1.50 to 1"
March 31, 2002 and thereafter 1.75 to 1
SECTION 5. AMENDMENT TO SECTION 6.12 OF THE CREDIT AGREEMENT.
Section 6.12 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"SECTION 6.12 NET WORTH. Permit Consolidated Net Worth on
(a) June 30, 1997, to be less than $53,000,000, or (b) on the last day of
any fiscal quarter ending after June 30, 1997, to be less than the sum of
(i) $53,000,000 plus (ii) 50% of the cumulative amount of positive
Consolidated Net Income for each fiscal quarter after June 30, 1997."
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SECTION 6. REPRESENTATIONS AND WARRANTIES. To induce the other
parties hereto to enter into this Amendment, the Borrower represents and
warrants to each other party hereto that, after giving effect to this Amendment,
(a) the representations and warranties set forth in Article III of the Credit
Agreement will be true and correct in all material respects on and as of the
date hereof, except to the extent such representations and warranties expressly
relate to an earlier date, and (b) no Default or Event of Default will have
occurred and be continuing.
SECTION 7. AMENDMENT FEE. The Borrower hereby agrees to pay to
the Administrative Agent, for the account of each Lender that delivers to the
Administrative Agent on or prior to August 4, 1997, a validly executed
counterpart hereof, an amendment fee (the "Amendment Fee") equal to 0.10% of the
aggregate outstanding amount of the sum of the Loans (other than Swingline
Loans), L/C Exposure, Swingline Exposure and unused Revolving Credit Commitments
of such Lender. The Amendment Fee will be payable by wire transfer of
immediately available funds concurrently with the prepayment of Term Loans
contemplated by Section 2 hereof, and shall be calculated after giving effect to
the Commitment Reduction and such prepayment of Term Loans. Once paid, no
portion of the Amendment Fee shall be refundable.
SECTION 8. EFFECTIVENESS; COMMITMENT REDUCTION. (a) This
Amendment shall become effective at such time as the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of the Borrower and the Required Lenders.
(b) The consent and waivers contained in Section 1 hereof and the
agreement and amendments contained in Sections 2, 3 and 4 hereof shall cease to
be effective if Additional Subordinated Notes in an aggregate principal amount
of not less than $50,000,000 shall not have been issued on or prior to September
30, 1997.
(c) Upon the issuance of the Additional Subordinated Notes on or
prior to September 30, 1997, the Total Revolving Credit Commitment shall be
reduced from $100,000,000 to $7,000,000.
SECTION 9. EFFECT OF AMENDMENT. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect, the rights and remedies of the
Lenders or the Administrative Agent under the Credit Agreement or any other Loan
Document, and shall not alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed in
all respects and shall continue in full force and effect. Nothing herein shall
be deemed to entitle the Borrower to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein and shall constitute a "Loan Document" for all
purposes of the Credit Agreement and the other Loan Documents.
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SECTION 10. EXPENSES. The Borrower agrees to pay the reasonable
out-of-pocket costs and expenses incurred by the Administrative Agent in
connection with the preparation of this Amendment.
SECTION 11. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all of which together shall constitute a single instrument. Delivery of an
executed counterpart of a signature page of this Amendment by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 12. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 13. HEADINGS. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their duly authorized officers, all as of the date and year
first above written.
JOHNSTOWN AMERICA INDUSTRIES, INC.,
by
/s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President & Treasurer
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent, Collateral Agent and
Swingline Lender,
by
/s/ Xxxxx X. Xxxx
--------------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
individually and as Co-Agent
by
/s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
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THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Co-Agent
by
/s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
THE BANK OF NEW YORK
by
/s/ Xxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
by
/s/ F.C.H. Xxxxx
--------------------------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
CANADIAN IMPERIAL BANK OF COMMERCE, ATLANTA
AGENCY,
by
/s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Director
CAISSE NATIONALE DE CREDIT AGRICOLE
by
/s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: First Vice President
CREDIT LYONNAIS CHICAGO BRANCH,
by
/s/ Xxxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
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CREDITANSTALT CORPORATE FINANCE, INC.,
by
/s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
by
/s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President
FIRST SOURCE FINANCIAL LLP,
by FIRST SOURCE FINANCIAL, INC., its
Agent/Manager
by
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
THE FUJI BANK LIMITED, CHICAGO BRANCH,
by
/s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Joint General Manager
JOHNSTOWN BANK & TRUST COMPANY,
by
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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XXXXXXX XXXXX SENIOR FLOATING RATE FUND,
INC.,
by
/s/ Xxxxxx Xxxxxxxx, CFA
--------------------------------------------
Name: Xxxxxx Xxxxxxxx, CFA
Title: Authorized Signatory
THE MITSUBISHI TRUST AND BANKING CORPORATION,
by
/s/ Genichiro Chiba
--------------------------------------------
Name: Genichiro Chiba
Title: Deputy General Manager
NATIONAL BANK OF CANADA,
by
/s/ C.F. "Boot" Xxxxxx, Jr.
--------------------------------------------
Name: C.F. "Boot" Xxxxxx, Jr.
Title: Vice President & Branch Mgr.
by
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
NBD BANK,
by
/s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
THE NORTHERN TRUST COMPANY,
by
/s/ Xxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Officer
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THE SUMITOMO TRUST AND BANKING CO., LTD.,
by
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President & Manager,
Corporate Finance Dept.
UNION BANK OF CALIFORNIA, N.A., successor in
interest to Union Bank, a California Bank,
by
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXX XXXXXX AMERICAN CAPITAL PRIME RATE INCOME
TRUST,
by
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
THE YASUDA TRUST & BANKING COMPANY, LTD.,
CHICAGO BRANCH,
by
/s/ Xxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Deputy General Manager
STRATA FUNDING LTD.,
by
/s/ Xxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director
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XXXXXXX XXXXX PRIME RATE PORTFOLIO,
by XXXXXXX XXXXX PRIME ASSET MANAGEMENT,
L.P., as Investment Advisor
by
/s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx, CFA
Title: Authorized Signatory
CERES FINANCE LTD.,
by
/s/ Xxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director
KEYPORT LIFE INSURANCE COMPANY,
by CHANCELLOR L.G.T. SENIOR SECURED
MANAGEMENT, INC. AS PORTFOLIO ADVISOR
by
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
AERIES FINANCE LTD.,
by
/s/ Xxxxxx Xxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title: Director
XXXXXX COMMERCIAL PAPER, INC.,
by
/s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
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SBS SWAPS,
by
/s/ J. Xxxxx Xxxxxxxxx
--------------------------------------------
Name: J. Xxxxx Xxxxxxxxx
Title: Authorized Signatory
SPS TRADES,
by
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatory
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