EXHIBIT 10.78
THIRD AMENDMENT TO
AMENDED AND RESTATED
CREDIT AGREEMENT
AND SECOND AMENDMENT TO
REVOLVING NOTE
XXXXXX CORPORATION ("Xxxxxx"), a Delaware corporation, its wholly-owned
subsidiary XXXXXX MANUFACTURING CORPORATION ("BMC"), a Delaware corporation,
each with a principal place of business at 000 Xxxxxxxxx Xxxx, X.X. Xxx 000,
Xxxxxxxx, Xxx Xxxxxxxxx 00000, its wholly-owned subsidiary XXXXXX TRANSPORTATION
PRODUCTS, INC. ("BTP"), a Delaware corporation, with its principal place of
business at 000 Xxxx Xxxx, Xxxxxxxx, Xxxx 00000, and BAYBANK, a Massachusetts
trust company, with its principal place of business at 0 Xxx Xxxxxxx Xxxxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, (the "Bank") hereby agree to further
amend that certain Amended and Restated Credit Agreement dated as of July 29,
1994 among Xxxxxx, BMC, BTP and the Bank, as previously amended by a First
Amendment dated as of September 20, 1994 and a Second Amendment dated as of
April 6, 1995 (the "Credit Agreement") and to amend the Amended and Restated
Revolving Note dated July 29, 1994 as amended April 6, 1995 (the "Revolving
Note") so as to increase the amount which may be borrowed under the Revolving
Credit of the Credit Agreement to $24,000,000.00, to make corresponding changes
in the Revolving Note and to make certain other modifications. Terms defined in
the Credit Agreement shall have the same meaning herein as in the Credit
Agreement.
Xxxxxx, BMC, BTP and the Bank agree as follows:
Amendments to Credit Agreement
A. The second paragraph of the Credit Agreement entitled "Background"
is hereby amended by deleting the figure "$14,000,000" in the fourth line
thereof and substituting the figure "$24,000,000" therefor.
B. Section 1.4 of the Credit Agreement is hereby amended by deleting
the figure "$14,000,000" in the fourth line thereof and substituting the figure
"$24,000,000" therefor.
C. Section 1.5 of the Credit Agreement is hereby amended by deleting
the figure "$14,000,000" in line four thereof and substituting the figure
"$24,000,000" therefor.
D. Section 1.11 of the Credit Agreement is hereby amended by deleting
the figure "$5,000,000" in the fourth line thereof and the figure "$1,000,000"
in the fifth line thereof and substituting therefor the figures $6,000,000 and
$2,000,000, respectively.
E. Section 6.13 of the Credit Agreement is hereby deleted and the
following substituted therefor:
6.13 Fixed Asset Expenditures. The Borrower shall not
make any expenditures for fixed assets, the principal portion
of payments on leases which are classified as "capitalized
leases" under generally accepted accounting principles,
conditional sales agreements or similar agreements relating to
the acquisition or use of personal property or leasehold
improvements exceeding $6,000,000 in the aggregate for the
fiscal year ending July 1994, $18,000,000 in the aggregate for
the fiscal year ending July 1995 and $10,000,000 for any
fiscal year thereafter; provided, however, that Borrower may
expend (excluding the assumption of liabilities) $27,000,000
pursuant to the Premix Acquisition.
F. Section 6.16 of the Credit Agreement is hereby deleted and the
following substituted therefor:
6.16 Ratio of Cash Flow to Current Maturities of Long
Term Debt. Xxxxxx shall not permit the ratio of (i) the sum of
(A) its consolidated net income and (B) the amount of its
consolidated depreciation expense and amortization for each
fiscal year to (ii) all expenditures for fixed assets which
have not been acquired through capitalized leases, conditional
sales agreements or long term debt plus all amounts of
principal with respect to long-term indebtedness including
capitalized lease obligations of the Borrowers which will
become due during the same fiscal year, to be less than 0.5 to
1 for the fiscal year ending July 1994; 0.7 to 1 for the
fiscal year ending July 1995; 1.0 to 1 for the fiscal year
ending July 1996 and 1.1 to 1 for each fiscal year thereafter
(calculated annually as at the end of each fiscal year).
Amendment to Revolving Note
G. The Revolving Note is hereby amended (i) by deleting the figure
"$14,000,000" in the upper left hand corner and substituting the figure
"$24,000,000" therefor and (ii) by deleting the first paragraph and substituting
the following therefor:
For value received the undersigned, jointly and
severally, hereby promise to pay to the order of BAYBANK (the
"Bank"), ON DEMAND, the principal sum of $24,000,000 or, if
less, the aggregate unpaid principal amount of all advances
made by the Bank under the "Revolving Credit" as defined in
the Amended and Restated Credit Agreement referred to below
and outstanding at the time of such demand, together with
interest thereon or on such portion thereof as may be from
time to time outstanding at such rate and payable at such
times and in such manner as are provided in the said Amended
and Restated Credit Agreement. As provided in the said Amended
and Restated Credit Agreement, the aggregate amount borrowed
under the "Revolving Credit" shall not exceed $24,000,000.
H. The Bank agrees to xxxx the original of the Revolving Note to refer
to this Amendment and to affix a copy of this Amendment to the original of the
Revolving Note.
Security Agreements
Xxxxxx, BMC and BTP confirm that the obligations under the Credit
Agreement and the Notes, as herein amended, are secured by the Security
Documents including a security interest in all personal property of Xxxxxx and
BMC pursuant to Amended and Restated Security Agreements dated as of July 29,
1994 and a security interest in inventory, accounts and other intangible
personal property of BTP pursuant to a Security Agreement dated as of July 29,
1994.
Effectiveness of Amendment
This Amendment shall not become effective until the Bank shall have
received:
(i) a certificate of the Secretary or Assistant Secretary of each
Borrower as to the action taken to authorize this Amendment and the transactions
contemplated hereby;
(ii) an opinion, satisfactory in scope, form and substance to the Bank
and its counsel as to the due authorization, execution and delivery and legal
and binding effect of this Amendment and the absence of conflict with any
mortgage, indenture or other material agreement known to such counsel.
This Amendment shall remain in full force in effect until June 30, 1995
but shall terminate and be of no further force and effect thereafter unless the
Borrower shall have furnished to the Bank amendments to the mortgages previously
granted the Bank by Xxxxxx in property located in Ohio and Indiana and by BMC on
real property located in New Hampshire, Michigan and Indiana to reflect the
increase in the secured obligations pursuant to this Amendment and furnish the
Bank appropriate endorsements to the mortgagee's title insurance policies
previously furnished.
This Amendment may be executed in several counterparts, each of which
shall be an original, and with the same effect as if signatures thereto were all
upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their duly authorized representatives as of May __, 1995.
BAYBANK XXXXXX CORPORATION
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxx
Vice President Executive Vice President
XXXXXX MANUFACTURING
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
Executive Vice President
XXXXXX TRANSPORTATION
PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Senior Vice President
