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Exhibit 10.1
THIRD AMENDMENT
THIS THIRD AMENDMENT dated as of March 31, 1999 (this "Amendment")
amends the Credit Agreement dated as of June 5, 1998 (the "Credit Agreement")
among XXX X. XXXXXX, INC. (the "Company") and BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (the "Bank"). Terms defined in the Credit Agreement are,
unless otherwise defined herein or the context otherwise requires, used herein
as defined therein.
WHEREAS, the Company and the Bank have entered into the Credit
Agreement; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects as more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 Amendments. The Credit Agreement is hereby amended in
accordance with Sections 1.1 through 1.5:
1.1 Amendments to Definitions. Section 1.1 is amended by deleting the
definition of "Loan Limit" therefrom and amending the definition of "Financial
Letter of Credit" to read in its entirety as follows:
Financial Letter of Credit means any Letter of Credit
determined by the Bank to be a "financial guaranty-type Standby Letter
of Credit" as defined in footnote 13 to Appendix A to the Risk Based
Capital Guidelines issued by the Comptroller of the Currency (or in any
successor regulation, guideline or ruling by any applicable banking
regulatory authority), excluding any Letter of Credit issued (x) on
behalf of any Person issuing Bonds for the Company or any Subsidiary
and (y) in connection with the issuance of such Bonds.
1.2 Amendment to Section 2.1.1. Section 2.1.1 is amended to read in its
entirety as follows:
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2.1.1. Commitment. The Bank agrees (a) to make loans to the
Company on a revolving basis (each such loan, a "Loan") from time to
time before the Termination Date in such amounts as the Company may
request from time to time and (b) to issue standby letters of credit,
in each case containing such terms and conditions as are permitted by
this Agreement and are reasonably satisfactory to the Bank (each a
"Letter of Credit"), at the request of and for the account of the
Company from time to time before the Termination Date; provided that
(i) the sum of the aggregate principal amount of all outstanding Loans
plus the aggregate Stated Amount of all Letters of Credit shall not at
any time exceed the lesser of (x) the amount of the Commitment and (y)
the Borrowing Base; (ii) the aggregate Stated Amount of all Letters of
Credit shall not at any time exceed $7,500,000; and (iii) the sum of
the aggregate principal amount of all outstanding Loans (other than
Acquisition Loans) shall not at any time exceed $8,000,000.
1.3 Amendment to Section 6.2.1. Section 6.2.1 is amended by deleting
clause (b) therefrom.
1.4 Amendment to Section 10.6.1. Section 10.6.1 is amended to read in
its entirety as follows:
10.6.1. Cash On Hand. Not permit the combined amount of cash
and Cash Equivalent Investments of the Company and the Guarantors
contained in pledged accounts no. 6725001452, 6728014834 and 0000000000
maintained at Delaware Trust Capital Management, Wilmington, Delaware
at any time to be less than $3,000,000.
1.5 Amendment to EBITDA Ratio. Section 10.6.2 is amended to read in its
entirety as follows:
(a) EBITDA Ratio. Not permit, as of the end of any Fiscal
Quarter, the ratio of (a) the difference of (i) EBITDA for any period
of four consecutive Fiscal Quarters minus (ii) Capital Expenditures for
such period to (b) Interest Expense for such period to be less than 2.0
to 1.
SECTION 2 Representations and Warranties. The Company represents and
warrants to the Bank that (a) each warranty set forth in Section 9 of the Credit
Agreement is true and correct as
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of the date of the execution and delivery of this Amendment by the Company, with
the same effect as if made on such date (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they were true and correct as of such earlier date), (b) the execution and
delivery by the Company of this Amendment and the performance by the Company of
its obligations under the Credit Agreement, as amended hereby (as so amended,
the "Amended Credit Agreement"), (i) are within the corporate powers of the
Company, (ii) have been duly authorized by all necessary corporate action on the
part of the Company, (iii) have received all necessary governmental approval and
(iv) do not and will not contravene or conflict with any provision of law or of
the charter, by-laws or other organizational documents of the Company or any
Subsidiary or of any agreement, indenture, instrument or other document, or any
judgment, order or decree, which is binding on the Company or any Subsidiary and
(c) the Amended Credit Agreement is the legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency or other similar laws
of general application affecting the enforcement of creditors' rights or by
general principles of equity limiting the availability of equitable remedies.
SECTION 3 Effectiveness. The amendments set forth in Section 1 above
shall become effective as of the date of this Amendment when the Bank shall have
received (a) a counterpart of this Amendment signed by Company and (b) a
confirmation in the form of Exhibit A signed by the Company and each Guarantor.
SECTION 4 Miscellaneous.
4.1 Continuing Effectiveness, etc. As herein amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. All references in the Credit Agreement and the other
Loan Documents to "Credit Agreement" or similar terms shall refer to the Amended
Credit Agreement.
4.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the parties hereto on separate counterparts, and each such
counterpart shall be deemed to be an original but all such counterparts shall
together constitute one and the same Amendment.
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4.3 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois applicable to contracts made and
to be performed entirely within such State.
4.4 Successors and Assigns. This Amendment shall be binding upon the
Company and the Bank and their respective successors and assigns and shall inure
to the benefit of the Company and the Bank and the respective successors and
assigns of the Bank.
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Delivered at Chicago, Illinois, as of the day and year first above
written.
XXX X. XXXXXX, INC.
By: s/Xxxxxxx X. Xxxxxxxxx
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Title: Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: s/Xxxxxx X. Xxxxxx
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Title: Senior Vice President
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