THIRD AMENDMENT
TO
AMENDED AND RESTATED
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is entered into as of September 29, 1997 among
XXXXXXXX CORPORATION, a Delaware corporation (the "Company"), various
financial institutions (collectively, the "Banks"), and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (successor by merger
to Bank of America Illinois), as agent for the Banks (in such
capacity, the "Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company, the Agent and the Banks are parties to an
Amended and Restated Credit Agreement dated as of April 28, 1994 (as
heretofore amended, the "Credit Agreement"); and
WHEREAS, the Company has requested that the Credit Agreement be
amended in certain respects.
NOW, THEREFORE, in consideration of the premises and mutual
agreements herein contained, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS.
Terms defined in the Credit Agreement and not otherwise defined
herein are used herein as therein defined.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT. On the Effective
Date (defined below):
2.1 Section 2.1 of the Credit Agreement shall be amended by
replacing the amount "$25,000,000" where it appears at the end of
clauses (a) and (c)(y) of such Section with the amount "$35,000,000."
2.2 Section 10.7(k) of the Credit Agreement shall be amended
and restated in its entirety to read as follows:
(k) Capital Expenditures. Not and not permit any
Subsidiary to make Capital Expenditures (i) in Fiscal
Year 1997 in excess of $11,000,000 and (ii) in any
Fiscal Year thereafter in excess of $8,500,000.
2.3 Section 10.9 of the Credit Agreement shall be amended and
restated to read in its entirety as follows:
10.9 Interest Coverage Ratio. Not permit the Interest
Coverage Ratio as of the last day of any Fiscal Quarter to be
less than 3.00:1.
2.4 Section 10.11 of the Credit Agreement shall be amended and
restated to read in its entirety as follows:
10.11 Funded Debt to Cash Flow Ratio. Not permit the
Funded Debt to Cash Flow Ratio as of the last day of any Fiscal
Quarter to exceed 2.50:1.
2.5 Schedule I to the Credit Agreement shall be amended by
replacing the amounts "$15,000,000", "$10,000,000" and "$25,000,000",
respectively, under the column "Amount of Revolving Commitment" with
the figures "$21,000,000", "$14,000,000" and "$35,000,000",
respectively.
SECTION 3. CONDITIONS PRECEDENT.
The amendments to the Credit Agreement set forth in
Section 2 of this Amendment shall become effective on such date
(the "Effective Date") when the following conditions precedent have
been satisfied:
3.1 Receipt of Documents. The Agent shall have received all
of the following, each duly executed and dated the date hereof, and
each in a sufficient number of signed counterparts to provide one to
each Bank:
(a) Amendment. An original of this Amendment duly
executed by the Company and each Bank and an original of
the consent attached to the foot hereof (the "Consent")
executed by Impact.
(b) Revolving Note. A Revolving Note executed by the
Company payable to the order of each Bank in an aggregate
principal amount equal to the maximum Revolving Loan
Commitment of such Bank (collectively, the "New Notes").
(c) Resolutions. A copy, certified by the secretary
or an assistant secretary of each of the Company and
Impact, of resolutions of the Board of Directors of such
Person authorizing or ratifying the execution and delivery
of (i) in the case of the Company, this Amendment and
the New Notes and the borrowings under the Credit
Agreement, as amended hereby and (ii) in the case of
Impact, the Consent.
-2-
(d) Incumbency and Signatures. A certificate of the
secretary or an assistant secretary of each of the Company
and Impact certifying the names of the officer or officers
of such Person authorized to sign (i) in the case of the
Company, this Amendment and the New Notes and (ii) in the
case of Impact, the Consent, together with a sample of the
true signature of each such officer.
(e) Certificate. A certificate, dated the Effective
Date and signed by a duly authorized representative of the
Company, as to the matters set forth in Section 3.2, in
form and substance satisfactory to the Agent.
(f) Other. Such other documents as the Agent or any
Bank may reasonably request.
3.2 Warranties True and Absence of Defaults. (i) No Event of
Default or Unmatured Event of Default shall have occurred and shall
be continuing as of the Effective Date (after giving effect to this
Amendment) and (ii) the warranties set forth in the Credit Agreement
and each other Loan Document shall be true and correct in all
material respects with the same effect as if made on the Effective
Date.
SECTION 4. MISCELLANEOUS.
4.1 Governing Law. This Amendment shall be a contract made
under and governed by the internal laws of the State of Illinois.
4.2 Counterparts. This Amendment may be executed in any number
of counterparts, and by the parties hereto on the same or separate
counterparts, and each such counterpart, when so executed and
delivered, shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.
4.3 References to Credit Agreement. Except as amended hereby,
the Credit Agreement shall remain in full force and effect and
is hereby ratified and confirmed in all respects. On and after the
effectiveness hereof, each reference in the Credit Agreement to
"this Agreement," "hereunder," "hereof," "herein" or words of like
import, and each reference to the Credit Agreement in any Note or
other Loan Document, shall be deemed a reference to the Credit
Agreement, as amended hereby.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized as of the date and year first above written.
XXXXXXXX CORPORATION
By: ___________________________________
Title:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Agent
By: ___________________________________
Title:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS, as a Bank
By: ___________________________________
Title:
XXXXXX TRUST AND SAVINGS BANK
By: ___________________________________
Title:
-4-
The undersigned, Impact Industries, Inc., hereby acknowledges,
consents and agrees to the foregoing Amendment, and reaffirms that
its obligations under the Guaranty dated as of April 29, 1994
executed in favor of the Agent and the Banks continue in full force
and effect with respect to the Credit Agreement, as amended by the
foregoing Amendment.
IMPACT INDUSTRIES, INC.
By: ___________________________________
Title:
