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EXHIBIT 10.38
THIRD AMENDMENT TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS THIRD AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT
(this "Amendment") is made and entered into this 19th day of February, 1997,
by and between FALCONITE EQUIPMENT, INC. (formerly known as Falconite, Inc.), an
Illinois corporation ("Borrower"), and CITIZENS BANK & TRUST COMPANY OF PADUCAH
("Lender").
W I T N E S S E T H:
WHEREAS, Borrower and Lender have heretofore entered into that
certain Revolving Credit and Term Loan Agreement dated October 5, 1995, as
amended by that certain First Amendment to Revolving Credit and Term Loan
Agreement dated January 5, 1996, and that certain Second Amendment to Revolving
Credit and Term Loan Agreement dated June 14, 1996 (as so amended, the "Loan
Agreement"; all capitalized terms used and not otherwise defined in this
Amendment shall have the respective meanings ascribed to them in the Loan
Agreement as amended by this Amendment); and
WHEREAS, Borrower and Lender desire to amend the Loan Agreement
in the manner hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:
1. All references in the Loan Agreement and in the other
Loan Documents to Falconite, Inc. (other than the references to Falconite, Inc.
in the Parent Guaranty and in the definition of Parent Guarantor set forth in
Section 1.01 of the Loan Agreement) shall henceforth mean Falconite Equipment,
Inc. (formerly known as Falconite, Inc.), an Illinois corporation.
2. The definition of "Commitment Termination Date" set
forth in Section 1.01 of the Loan Agreement is hereby deleted in its entirety
and the following substituted in lieu thereof:
""Commitment Termination Date" shall mean June 30,
1997, or, if such date is not a Business Day, the Business Day
next preceding such date."
3. The definition of "Consolidated Tangible Net Worth"
set forth in Section 1.01 of the Loan Agreement is hereby deleted in its
entirety and the following substituted in lieu thereof:
""Consolidated Tangible Net Worth" shall mean, as of
any date, the total shareholder's equity (including capital
stock, additional paid-in capital and retained earnings after
deducting treasury stock) which would appear on a consolidated
balance sheet of the Parent Guarantor and its subsidiaries
prepared as of such date
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in accordance with Generally Accepted Accounting Principles,
minus the aggregate book value of Intangible Assets shown on
such balance sheet."
4. The definition of "Continuing Guaranty" set forth in
Section 1.01 of the Loan Agreement is hereby deleted in its entirety and the
following substituted in lieu thereof:
""Continuing Guaranty" shall mean that certain
Continuing Guaranty dated October 5, 1995, and executed by the
Shareholder Guarantors in favor of Lender (an unexecuted copy of
which is attached hereto as Exhibit F), as amended by that
certain First Amendment to Continuing Guaranty dated January 5,
1996 (an unexecuted copy of which is attached hereto as Exhibit
F-1), that certain Second Amendment to Continuing Guaranty dated
June 14, 1996 (an unexecuted copy of which is attached hereto as
Exhibit F-2) and that certain Third Amendment to Continuing
Guaranty dated February 19, 1997 (an unexecuted copy of
which is attached hereto as Exhibit F-3), and as the same may
from time to time be further amended, modified, extended or
renewed."
5. The definition of "Eligible Inventory" set forth in
Section 1.01 of the Loan Agreement is hereby deleted in its entirety and the
following substituted in lieu thereof:
""Eligible Inventory" shall mean, at the time of any
determination thereof, each item of Inventory valued (in
accordance with Generally Accepted Accounting Principles) at the
lower of (i) cost minus accumulated depreciation (determined in
accordance with the following methods of depreciation, unless
otherwise approved by Lender in writing, (A) for cranes, the
15-year straight line depreciation method with (1) a salvage
value of Ten Percent (10%) for large (28-ton or greater) cranes
purchased on or after January 1, 1997, (2) no salvage value for
all other cranes, (B) for boom lifts, scissor lifts, back hoes,
forklifts, skid steers and personnel lifts, the 10-year straight
line depreciation method with no salvage value, (C) for air
compressors, the 7-year straight line depreciation method with
no salvage value and (D) for all other types of Inventory, the
7-year straight line depreciation method with no salvage value)
or (ii) market, as to which the following requirements have been
fulfilled to the reasonable satisfaction of Lender:
(i) Borrower has lawful and absolute title to such
Inventory;
(ii) such Inventory consists of new or used machinery
or equipment held for sale, lease or rent by Borrower in the
ordinary course of its business;
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(iii) such Inventory is not obsolete. For the
purposes of this definition, "obsolete" shall mean Inventory in
which Borrower does not intend to sell, lease or rent and/or
cannot sell, lease or rent in the ordinary course of business at
regularly listed prices;
(iv) such Inventory is not more than five (5) years
old, except for Inventory classified as " cranes" which shall
not be more than seven (7) years old;
(v) such Inventory is not in the process of being
refurbished in a manner requiring more than forty (40) hours of
service;
(vi) such Inventory is not unacceptable to Lender due
to type, category and/or quantity;
(vii) such Inventory is located at 0000 Xxxxx Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, one of the other offices of
Borrower listed on Exhibit A to the Security Agreement or one of
the jurisdictions listed on Exhibit B to the Security Agreement
or such other addresses and locations approved in writing by
Lender;
(viii) such Inventory is subject to a fully perfected
first priority security interest in favor of Lender pursuant to
the Security Agreement, prior to the rights of, and enforceable
as such against, any other Person;
(ix) such Inventory is not subject to any Lien in
favor of any Person other than the Lien of Lender pursuant to
the Security Agreement; and
(x) Lender has not otherwise advised Borrower that
such Inventory is, in its sole discretion, ineligible."
6. The definition of "Guarantors" set forth in Section
1.01 of the Loan Agreement is hereby deleted in its entirety and the following
substituted in lieu thereof:
""Guarantors" shall mean the Shareholder Guarantors and
the Parent Guarantor."
7. The definition of "Loan Documents" set forth
in Section 1.01 of the Loan Agreement is hereby deleted in its entirety and the
following substituted in lieu thereof:
""Loan Documents" shall mean this Agreement, the Notes,
the Letter of Credit Application(s), the Security Agreement, the
Continuing Guaranty, the Parent Guaranty, the Life Insurance
Assignment and any and all other agreements, documents,
instruments and/or certificates executed or delivered pursuant
to the terms of this
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Agreement, all as the same may from time to time be amended,
modified, extended or renewed."
8. The definition of "Maturity Date" set forth in Section
1.01 of the Loan Agreement is hereby deleted in its entirety and the following
substituted in lieu thereof:
""Maturity Date" shall mean June 30, 1997, or, if such
date is not a Business Day, the Business Day next preceding such
date."
9. The definition of "Revolving Credit Commitment" set
forth in Section 1.01 of the Loan Agreement is hereby deleted in its entirety
and the following substituted in lieu thereof:
""Revolving Credit Commitment" shall mean the sum of
Thirty-Eight Million Five Hundred Thousand Dollars
($38,500,000.00)."
10. The definition of "Tangible Net Worth" set forth in
Section 1.01 of the Loan Agreement is hereby deleted in its entirety and the
following substituted in lieu thereof:
""Tangible Net Worth" shall mean, as of any date, the
total shareholder's equity (including capital stock, additional
paid-in capital and retained earnings after deducting treasury
stock) which would appear on a balance sheet of Borrower
prepared as of such date in accordance with Generally Accepted
Accounting Principles, minus the aggregate book value of
Intangible Assets shown on such balance sheet."
11. The following new definitions of "Parent Guarantor",
"Parent Guaranty" and "Shareholder Guarantors" are hereby added to Section 1.01
of the Loan Agreement:
""Parent Guaranty shall mean that certain Continuing Guaranty
dated February 19, 1997, and executed by the Parent Guarantor in favor of
Lender, as the same may from time to time be amended, modified, extended or
renewed.
"Parent Guarantor" shall mean Falconite, Inc., an Illinois
corporation."
"Shareholder Guarantors" shall mean Xxxxxxx X. Xxxxxxxxx, Xxxxxx
X. Xxxxxxxxx and Xxxxx X. Xxxxxxxxx."
12. Paragraph (d) of Section 1.02 of the Loan Agreement is
hereby deleted in its entirety and the following substituted in lieu thereof:
"(d) Except as otherwise specified in this
Agreement, all accounting terms used in this Agreement shall be
interpreted, all accounting determinations under this Agreement
shall be made and all financial statements
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required to be delivered under this Agreement shall be prepared
in accordance with Generally Accepted Accounting Principles as
in effect from time to time, applied on a basis consistent
(except for changes approved by Lender and by Borrower's
independent certified public accountants) with the most recent
audited financial statements of Borrower delivered to Lender.
Notwithstanding the foregoing, the financial covenants contained
in this Agreement (including, without limitation, the financial
covenants contained in Sections 9.14(a), 9.14(b), 9.14(c),
9.14(d) and 9.15 of this Agreement but excluding the financial
covenant contained in Section 9.14(e) of this Agreement) shall
be determined for Borrower only on a stand alone basis and not
for Borrower and its Subsidiaries on a consolidated basis. The
financial covenant contained in Section 9.14(e) of this
Agreement shall be determined for the Parent Guarantor and its
subsidiaries on a consolidated basis."
13. Section 2.03 of the Loan Agreement is hereby deleted in
its entirety and the following substituted in lieu thereof:
"Section 2.03. Swing Line Note and Revolving Credit
Note. (a) The Swing Line Loans made under Section 2.01(a)
hereof by Lender shall be evidenced by a Swing Line Note of
Borrower dated June 14, 1996, and payable to the order of Lender
in the principal amount of Two Million Dollars ($2,000,000.00)
in the form attached hereto as Exhibit Q and incorporated herein
by reference, as amended by a First Amendment to Swing Line Note
dated February 19, 1997, in the form attached hereto as
Exhibit Q-1 and incorporated herein by reference (as so amended
and as the same may from time to time be further amended,
modified, extended or renewed, the "Swing Line Note").
Notwithstanding the principal amount of the Swing Line Note as
stated on the face thereof, the amount of principal actually
owing on such Swing Line Note at any given time shall be the
aggregate principal amount of all Swing Line Loans theretofore
made by Lender to Borrower hereunder less all payments of
principal theretofore actually received hereunder by Lender.
(b) The Revolving Credit Loans made under Section
2.01(b) hereof by Lender shall be evidenced by a Revolving
Credit Note of Borrower October 5, 1995, and payable to the
order of Lender in the principal amount of Seven Million Dollars
($7,000,000.00) in the form attached hereto as Exhibit A and
incorporated herein by reference, as amended by a First
Amendment to Revolving Credit Note dated June 14, 1996, in the
form attached hereto as Exhibit A-1 and incorporated herein by
reference and a Second Amendment to Revolving Credit Note dated
February 19, 1997, in the form attached hereto as Exhibit
A-2 and incorporated herein by reference (as so amended and as
the same may from time to time be
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further amended, modified, extended or renewed, the "Revolving
Credit Note"). Notwithstanding the principal amount of the
Revolving Credit Note as stated on the face thereof, the amount
of principal actually owing on such Revolving Credit Note at any
given time shall be the aggregate principal amount of all
Revolving Credit Loans theretofore made by Lender to Borrower
hereunder less all payments of principal theretofore actually
received hereunder by Lender."
14. Section 3.02 of the Loan Agreement is hereby deleted in
its entirety and the following substituted in lieu thereof:
"Section 3.02. Term Note. The Term Loan made under
Section 3.01 hereof by Lender shall be evidenced by a Term Loan
Promissory Note of Borrower dated October 5, 1995, and payable
to the order of Lender in the original principal amount of Seven
Million Dollars ($7,000,000.00) in the form attached hereto as
Exhibit B and incorporated herein by reference, as amended by a
First Amendment to Term Loan Promissory Note dated January 5,
1996, in the form attached hereto as Exhibit B-1 and
incorporated herein by reference, a Second Amendment to Term
Loan Promissory Note dated June 14, 1996, in the form attached
hereto as Exhibit B-2 and incorporated herein by reference and a
Third Amendment to Term Loan Promissory Note dated February
19, 1997, in the form attached hereto as Exhibit B-3 and
incorporated herein by reference (as so amended and as the same
may from time to time be further amended, modified, extended or
renewed, the "Term Note")."
15. Section 3.04 of the Loan Agreement is hereby deleted in
its entirety and the following substituted in lieu thereof:
"Section 3.04. Principal Payments. Principal on the
Term Note shall be due and payable in twenty-one (21)
consecutive monthly installments as follows: three (3) equal
consecutive monthly installments in the amount of One Hundred
Sixteen Thousand Six Hundred Sixty-Six and 67/100 Dollars
($116,666.67) each, due and payable on the last day of each
calendar month commencing October 31, 1995; seventeen (17) equal
consecutive monthly installments in the amount of One Hundred
Fifty Thousand Dollars ($150,000.00) each, due and payable on
the last day of each calendar month commencing January 31, 1996;
with the twenty-first (21st) and final installment in the amount
of the then outstanding and unpaid principal balance of the Term
Note due and payable on the Maturity Date. In addition to the
scheduled monthly principal payments set forth above, if at any
time the Borrowing Base as shown on the most recent Borrowing
Base Certificate submitted to Lender pursuant to Section 8.01(c)
should be less than Zero Dollars ($0.00), Borrower shall be
automatically required (without demand
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or notice of any kind by Lender, all of which are hereby
expressly waived by Borrower) to immediately either (i) make a
permanent prepayment on the Term Note in an amount sufficient
to increase the amount of the Borrowing Base to at least Zero
Dollars ($0.00) or (ii) pledge cash or cash equivalents with
Lender as additional collateral for the Term Loan in an amount
at least equal to the difference between the amount of the
Borrowing Base and Zero Dollars ($0.00). Borrower hereby
irrevocably requests and authorizes Lender to automatically
debit Borrower's Operating Account on each date on which a
payment of principal is due on the Term Note for the principal
payment due under the Term Note on such date."
16. Section 5.01 of the Loan Agreement is hereby deleted in
its entirety and the following substituted in lieu thereof:
"Section 5.01. Security Agreement. In order to
secure the payment when due of the Borrower's Obligations,
Borrower shall grant Lender a security interest in the
Collateral (as defined in the Security Agreement), which
security interest shall be a first and prior interest in all
such items except for those Uniform Commercial Code security
interests described on Exhibit K attached hereto. Said
security interest shall be evidenced by a Security Agreement
dated October 5, 1995, and executed by Borrower in favor of
Lender in the form attached hereto as Exhibit E and
incorporated herein by reference, as amended by a First
Amendment to Security Agreement dated February 19, 1997,
and executed by Borrower in favor of Lender in the form
attached hereto as Exhibit E-1 and incorporated herein by
reference (as so amended and as the same may from time to time
be further amended, modified, extended or renewed, the
"Security Agreement"). Borrower further covenants and agrees
to execute and deliver to Lender any and all financing
statements, continuation statements and such other
documentation as may from time to time be requested by Lender
in order to create, perfect and continue said security
interest."
17. Section 7.06 of the Loan Agreement is hereby deleted in
its entirety and the following substituted in lieu thereof:
"Section 7.06. Financial Condition. Borrower has
delivered to Lender copies of the balance sheet of Borrower as
of September 30, 1996, and the related statements of income,
changes in stockholders' equity and cash flows for the period
ended on such date, certified by KPMG Peat Marwick LLP,
independent certified public accountants; such financial
statements are true and correct, fairly represent the financial
condition of Borrower as of such date and have been prepared in
accordance with Generally Accepted Accounting Principles applied
on a basis consistent with that of prior periods;
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as of the date hereof, there are no obligations, liabilities
or Indebtedness (including contingent and indirect liabilities
and obligations) of Borrower which are (separately or in the
aggregate) material and are not reflected in such financial
statements; no changes having a Material Adverse Effect have
occurred since the date of such financial statements."
18. Section 7.20 of the Loan Agreement is hereby deleted in
its entirety and the following substituted in lieu thereof:
"Section 7.20. Subsidiaries. Borrower does not have
any Subsidiaries other than Carl's Mid-South Rent-All Center
Incorporated, a Tennessee corporation."
19. Paragraph (b) of Section 8.01 of the Loan Agreement is
hereby deleted in its entirety and the following substituted in lieu thereof:
"(b) Annual Statements of Parent Guarantor. As soon
as available and in any event within ninety (90) days after the
close of each fiscal year of the Parent Guarantor, copies of the
audited consolidated and consolidating balance sheets of the
Parent Guarantor and its subsidiaries as of the close of such
fiscal year and the related audited consolidated and
consolidating statements of income, changes in stockholders'
equity and cash flows of the Parent Guarantor and its
subsidiaries for such fiscal year, in each case setting forth in
comparative form the figures for the preceding fiscal year, all
in reasonable detail (including, without limitation, footnotes
and supplemental schedules detailing all selling and general and
administrative expenses) and accompanied by an opinion thereon
(which shall not be qualified by reason of any limitation
imposed by the Parent Guarantor) of KPMG Peat Marwick LLP, or of
other independent public accountants selected by the Parent
Guarantor and satisfactory to Lender, to the effect that such
financial statements have been prepared in accordance with
Generally Accepted Accounting Principles consistently maintained
and applied (except for changes in which such accountants
concur) and that the examination of such accountants in
connection with such financial statements has been made in
accordance with generally accepted auditing standards and,
accordingly, includes such tests of the accounting records and
such other auditing procedures as were considered necessary in
the circumstances;"
20. Paragraph (g) of Section 8.01 of the Loan Agreement is
hereby deleted in its entirety and the following substituted in lieu thereof:
"(g) Audit Reports. Promptly upon receipt thereof, one
copy of each management letter and/or other written
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report submitted to Borrower or the Parent Guarantor by
independent accountants in any annual, quarterly or special
audit made, it being understood and agreed that all audit
reports which are furnished to Lender pursuant to this Article
VIII shall be treated as confidential, but nothing herein
contained shall limit or impair Lender's right to disclose such
reports to any appropriate Governmental Authority, or to use
such information to the extent pertinent to an evaluation of the
Obligations, or to enforce compliance with the terms and
conditions of this Agreement, or to take any lawful action which
Lender deems necessary to protect its interests under this
Agreement;"
21. Paragraph (j) of Section 8.01 of the Loan Agreement is
hereby deleted in its entirety.
22. Paragraph (l) of Section 8.01 of the Loan Agreement is
hereby deleted in its entirety.
23. Paragraph (m) of Section 8.01 of the Loan Agreement is
hereby deleted in its entirety and the following substituted in lieu thereof:
"(m) Other Information. Such other information
concerning the business, properties or financial condition of
Borrower, any Subsidiary of Borrower, the Parent Guarantor, any
subsidiary of the Parent Guarantor or M&M Properties, Inc. as
Lender shall from time to time reasonably request."
24. Section 8.17 of the Loan Agreement is hereby deleted in
its entirety and the following substituted in lieu thereof:
"Section 8.17. Landlord Consents. Borrower will
obtain and deliver to Lender on or before February 28, 1997,
Landlord's Consents and Waivers of Liens in form and substance
satisfactory to Lender duly executed by the applicable
landlord(s) with respect to Borrower's facilities located at
0000 Xx-Xxxxx Xxxxxxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, 0000
Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, 000 Xxxx
Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, 0000 Xxxxxxxx
Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000 and 0000 Xxxxx Xxxxx Xxxxxx,
Xxxxx Xxxx, Xxxxxxx 00000."
25. Sections 9.14, 9.15, 9.16 and 9.17 of the Loan
Agreement are hereby deleted in their entirety and the following substituted in
lieu thereof:
"Section 9.14. Financial Covenants.
(a) Minimum Tangible Net Worth. Borrower shall not
permit its Tangible Net Worth to be less than $12,000,000.00 at
any time on or after December 31, 1996.
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(b) Maximum Indebtedness to Tangible Net Worth.
Borrower shall not permit the ratio of the Indebtedness of
Borrower, determined in accordance with Generally Accepted
Accounting Principles consistently applied, to Tangible Net
Worth to be greater than 4.5 to 1.0 at any time on or after
December 31, 1996.
(c) Minimum Net Cash Flow to Current Maturities of
Debt. Borrower shall not permit the ratio of Net Cash Flow for
any consecutive twelve (12) month period (commencing with the
consecutive twelve (12) month period ended December 31, 1996) to
the Current Maturities of Debt for the next succeeding
consecutive twelve (12) month period to be less than 1.5 to 1.0.
For the purposes of this Section, Borrower's "Net Cash Flow"
shall be that shown on the officer's certificate delivered with
respect to the applicable consecutive twelve (12) month period
unless Lender makes an independent, good faith determination of
Net Cash Flow for such consecutive twelve (12) month period. If
Lender's determination of Net Cash Flow for any consecutive
twelve (12) month period is less than Net Cash Flow as stated in
the applicable officer's certificate: (i) such determination by
Lender shall be, if determined in accordance with the foregoing
provision and the definition of "Net Cash Flow" in this
Agreement, conclusive for purposes hereof and (ii) Lender shall
promptly advise Borrower of its determination.
(d) Minimum Operating Cash Flow. Borrower shall
not permit its Operating Cash Flow to be less than
$10,000,000.00 for any consecutive twelve (12) month period
commencing with the consecutive twelve (12) month period ended
December 31, 1996. For the purposes of this Section, Borrower's
"Operating Cash Flow" shall be that shown on the officer's
certificate delivered with respect to the applicable twelve (12)
consecutive month period unless Lender makes an independent,
good faith determination of Operating Cash Flow for such
consecutive twelve (12) month period. If Lender's determination
of Operating Cash Flow for any consecutive (12) month period is
less than Operating Cash Flow as stated in the applicable
officer's certificate: (i) such determination by Lender shall
be, if determined in accordance with the foregoing provision and
the definition of "Operating Cash Flow" in this Agreement,
conclusive for purposes hereof and (ii) Lender shall promptly
advise Borrower of its determination.
(e) Maximum Consolidated Indebtedness to
Consolidated Tangible Net Worth. Borrower shall not permit the
ratio of the Indebtedness of the Parent Guarantor and its
subsidiaries, determined on a consolidated basis and in
accordance with Generally
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Accepted Accounting Principles consistently applied, to
Consolidated Tangible Net Worth to be greater than 7.0 to 1.0 at
any time on or after December 31, 1996.
Section 9.15. Limitation on Capital Expenditures.
Borrower will not make any Capital Expenditure (excluding
Capital Expenditures for Inventory) if the sum of the aggregate
amount of all Capital Expenditures (including the Capital
Expenditure in question) made by Borrower during the period
commencing January 1, 1997, and ending June 30, 1997, would
exceed $1,800,000.00.
Section 9.16. Calculation of Depreciation on
Inventory. Borrower will not change the methods or salvage
value percentages used to calculate depreciation on any of its
Inventory from the following methods and salvage value
percentages: (a) for cranes, the 15-year straight line
depreciation method with (1) a salvage value of Ten Percent
(10%) for large (28-ton or greater) cranes purchased on or after
January 1, 1997, (2) no salvage value for all other cranes, (b)
for boom lifts, scissor lifts, back hoes, forklifts, skid steers
and personnel lifts, the 10-year straight line depreciation
method with no salvage value, (c) for air compressors, the
7-year straight line depreciation method with no salvage value
and (d) for all other types of Inventory, the 7-year straight
line depreciation method with no salvage value).
Section 9.17. Limit on Expansion. Borrower will not
open any additional offices or places of business or expand into
any new territories unless and until (a) the Parent Guarantor
has consummated an initial public offering of its capital stock
(the "IPO") and (b) the IPO results in net cash proceeds to the
Parent Guarantor of at least $65,000,000.00."
26. Clause (m) of Section 10.01 of the Loan Agreement is
hereby deleted in its entirety and the following substituted in lieu thereof:
"(m) the death or incompetence of any of the
Shareholder Guarantors;"
27. Clauses (o), (p) and (q) of Section 10.01 of the Loan
Agreement are hereby deleted in their entirety and the following substituted in
lieu thereof:
"(o) the Continuing Guaranty shall at any time for
any reason cease to be in full force and effect or shall be
declared to be null and void by a court of competent
jurisdiction, or if the validity or enforceability thereof shall
be contested or denied by any of the Shareholder Guarantors, or
if any of the Shareholder Guarantors shall deny that he or she
has any further
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liability or obligation thereunder or if any of the Shareholder
Guarantors shall fail to comply with or observe any of the
terms, provisions or conditions contained in the Continuing
Guaranty;
(p) the Parent Guaranty shall at any time for any
reason cease to be in full force and effect or shall be declared
to be null and void by a court of competent jurisdiction, or if
the validity or enforceability thereof shall be contested or
denied by the Parent Guarantor, or if the Parent Guarantor shall
deny that it has any further liability or obligation thereunder
or if the Parent Guarantor shall fail to comply with or observe
any of the terms, provisions or conditions contained in the
Parent Guaranty;
(q) the Life Insurance Assignment shall at any time
for any reason cease to be in full force and effect or shall be
declared to be null and void by a court of competent
jurisdiction, or if the validity or enforceability thereof shall
be contested or denied by Xxxxxxx X. Xxxxxxxxx, or if Xxxxxxx X.
Xxxxxxxxx shall deny that he has any further liability or
obligation thereunder or if Xxxxxxx X. Xxxxxxxxx shall fail to
comply with or observe any of the terms, provisions or
conditions contained in the Life Insurance Assignment;
(r) the Parent Guarantor shall at any time for any
reason own less than One Hundred Percent (100%) of all of the
issued and outstanding shares of each class of capital stock of
the Borrower;
(s) the Parent Guarantor shall at any time for any
reason own less than One Hundred Percent (100%) of all of the
issued and outstanding shares of each class of capital stock of
M&M Properties, Inc.; or
(t) Lender, in good faith, deems itself insecure."
28. Exhibit I attached to the Loan Agreement is hereby
deleted in its entirety and the Exhibit I attached to this Amendment is
substituted in lieu thereof.
29. Exhibit J attached to the Loan Agreement is hereby
deleted in its entirety and the Exhibit J attached to this Amendment is
substituted in lieu thereof.
30. Exhibit L attached to the Loan Agreement is hereby
deleted in its entirety and the Exhibit L attached to this Amendment is
substituted in lieu thereof.
31. Exhibit M attached to the Loan Agreement is hereby
deleted in its entirety and the Exhibit M attached to this Amendment is
substituted in lieu thereof.
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32. Exhibit O attached to the Loan Agreement is hereby
deleted in its entirety and the Exhibit O attached to this Amendment is
substituted in lieu thereof.
33. Exhibits X-0, X-0, X-0, F-3 and Q-1 attached to this
Amendment are hereby added as Exhibits X-0, X-0, X-0, F-3 and Q-1 to the Loan
Agreement.
34. Borrower agrees to pay Lender a nonrefundable amendment
and facility fee in the amount of $42,500.00 contemporaneously with the
execution of this Amendment.
35. Borrower hereby agrees to pay or reimburse Lender upon
demand for all out-of-pocket costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred by Lender in the preparation,
negotiation and execution of this Amendment and all other agreements, documents
and instruments relating to the amendment of Borrower's existing credit
facilities with Lender (collectively, the "Amendment Documents"). Borrower
further agrees to pay or reimburse Lender for (a) any stamp or other taxes
(excluding income or gross receipts taxes) which may be payable with respect to
the execution, delivery or recording of the Loan Documents and (b) the cost of
any filings and searches, including, without limitation, Uniform Commercial Code
filings and searches. All of the obligations of Borrower under this paragraph
shall survive the payment of the Borrower's Obligations and the termination of
the Loan Agreement.
36. All references in the Loan Agreement to "this
Agreement" and any other references of similar import shall henceforth mean the
Loan Agreement as amended by this Amendment.
37. Except to the extent specifically amended by this
Amendment, all of the terms, provisions, conditions, covenants, representations
and warranties contained in the Loan Agreement shall be and remain in full force
and effect and the same are hereby ratified and confirmed.
38. This Amendment shall be binding upon and inure to the
benefit of Borrower and Lender and their respective successors and assigns,
except that Borrower may not assign, transfer or delegate any of its rights or
obligations hereunder.
39. Borrower hereby represents and warrants to Lender that:
(a) the execution, delivery and performance by
Borrower of this Amendment are within the corporate powers of
Borrower, have been duly authorized by all necessary corporate
action and require no action by or in respect of, or filing
with, any governmental or regulatory body, agency or official or
any other third party;
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(b) the execution, delivery and performance by
Borrower of this Amendment do not conflict with, or result in a
breach of the terms, conditions or provisions of, or constitute
a default under or result in any violation of, the terms of the
Articles of Incorporation or By-Laws of Borrower, any applicable
law, rule, regulation, order, writ, judgment or decree of any
court or governmental or regulatory agency or instrumentality or
any agreement, document or instrument to which Borrower is a
party or by which it is bound or to which it is subject;
(c) this Amendment has been duly executed and
delivered by Borrower and constitutes the legal, valid and
binding obligation of Borrower enforceable against Borrower in
accordance with its terms; and
(d) as of the date hereof, all of the
representations and warranties of Borrower set forth in the Loan
Agreement are true and correct and no Default or Event of
Default under or within the meaning of the Loan Agreement has
occurred and is continuing.
40. In the event of any inconsistency or conflict between
this Amendment and the Loan Agreement, the terms, provisions and conditions
contained in this Amendment shall govern and control.
41. This Amendment shall be governed by and construed in
accordance with the substantive laws of the Commonwealth of Kentucky (without
reference to conflict of law principles).
IN WITNESS WHEREOF, Borrower and Lender have executed this Third
Amendment to Revolving Credit and Term Loan Agreement this 19th day of
February, 1997.
FALCONITE EQUIPMENT, INC.
By /s/ Xxxx Xxxxxxxxx
----------------------
Name: Xxxx Xxxxxxxxx
-------------------
Title: President
------------------
CITIZENS BANK & TRUST COMPANY OF
PADUCAH
By /s/ Xxxxx Xxxxxx
-------------------------
Name: Xxxxx Xxxxxx
----------------------
Title: Senior Vice President
---------------------
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