EXHIBIT 10.40
FIRST AMENDMENT TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
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August 25, 1997, is entered into between MELLON BANK, N.A. ("Lender"), with a
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place of business at Mellon Bank Center, 000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, and KEYSTONE AUTOMOTIVE INDUSTRIES, INC., a
California corporation ("Borrower"), with its chief executive office located at
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000 Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000.
RECITAL
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A. Borrower and Lender have previously entered into that certain Loan and
Security Agreement dated as of March 25, 1997 (the "Credit Agreement"), pursuant
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to which Lender has made a certain loan available to Borrower. Terms used herein
without definition shall have the meanings ascribed to them in the Credit
Agreement.
B. Borrower has requested Lender to amend the Credit Agreement (i) to
eliminate the requirement of consolidating financial statements, effective as of
Borrower's fiscal quarter ended June 27, 1997 and (ii) to replace all references
in the Credit Agreement to "Vice President -- Finance" with "Chief Financial
Officer".
C. Lender is willing to further amend the Credit Agreement under the
terms and conditions set forth in this Amendment. Borrower is entering into this
Amendment with the understanding and agreement that, except as specifically
provided herein, none of Lender's rights or remedies as set forth in the Credit
Agreement is being waived or modified by the terms of this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Amendments to Credit Agreement.
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(a) Clauses (i) and (ii) of Section 6.1(a) of the Credit Agreement
are hereby amended, effective as of Borrower's fiscal quarter ended June 27,
1997, to read in their entirety as follows:
"(i) as soon as available, but in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of the
Borrower's audited consolidated balance sheet of itself and its
consolidated Subsidiaries as at the end of each fiscal year and the
related audited consolidated statements of income and retained
earnings (or comparable statement) employed in the business and
changes in financial position and cash flow for such year, setting
forth in each case in comparative form the figures for the previous
year, accompanied by an unqualified report and opinion thereon of
independent certified public accountants acceptable to the Bank, and,
if prepared, such accountants' letter to management; and
(ii) as soon as available, but in any event within 45 days
after the end of each fiscal quarter, the Borrower's unaudited
consolidated balance sheet of itself and its consolidated Subsidiaries
as at the end of such period and the related unaudited consolidated
statements of income and retained earnings (or comparable statement)
and changes in financial position and cash flow for such period and
year to date, setting forth in each case in comparative form the
figures as at the end of the previous fiscal year as to the balance
sheet and the figures for the previous corresponding period as to the
other statements, certified by the Chief Financial Officer or the
Treasurer of the Borrower as being fairly stated in all material
respects subject to year end adjustments; all such financial
statements to be complete and correct in all material respects and to
be prepared in reasonable detail acceptable to the Bank and in
accordance with GAAP applied consistently throughout the periods
reflected therein (except as approved by such accountants and
disclosed therein); and"
(b) Clause (iv) of Section 6.1(a) of the Credit Agreement is hereby
amended to delete the reference therein to "Vice President-Finance" and to
insert in lieu thereof a reference to "Chief Financial Officer."
2. Effectiveness of this Amendment. Lender must have received the
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following items, in form and content acceptable to Lender, before this Amendment
is effective and before Lender is required to extend any credit to Borrower as
provided for by this Amendment. The date on which all of the following
conditions have been satisfied is the "Closing Date".
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(a) Amendment. This Amendment fully executed in a sufficient number of
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counterparts for distribution to Lender and Borrower.
(b) Authorizations. Evidence that the execution, delivery and
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performance by Borrower and each guarantor or subordinating creditor of
this Amendment and any instrument or agreement required under this
Amendment have been duly authorized.
(c) Representations and Warranties. The Representations and
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Warranties set forth in the Credit Agreement must be true and correct.
(d) Other Required Documentation. All other documents and legal
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matters in connection with the transactions contemplated by this Agreement
shall have been delivered or executed or recorded and shall be in form and
substance satisfactory to Lender.
3. Representations and Warranties. The Borrower represents and warrants
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as follows:
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(a) Authority. Borrower has the requisite corporate power and
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authority to execute and deliver this Amendment, and to perform its
obligations hereunder and under the Loan Documents (as amended or modified
hereby). The execution, delivery and performance by the Borrower of this
Amendment and each Loan Document (as amended or modified hereby) have been
duly approved by all necessary corporate action of Borrower and no other
corporate proceedings on the part of Borrower are necessary to consummate
such transactions.
(b) Enforceability. This Amendment has been duly executed and
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delivered by Borrower. This Amendment and each Loan Document (as amended
or modified hereby) is the legal, valid and binding obligation of Borrower,
enforceable against Borrower in accordance with its terms, and is in full
force and effect.
(c) Representations and Warranties. The representations and
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warranties contained in each Loan Document (other than any such
representations or warranties that, by their terms, are specifically made
as of a date other than the date hereof) are correct on and as of the date
hereof as though made on and as of the date hereof.
(d) No Default. No event has occurred and is continuing that
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constitutes an Event of Default.
4. Choice of Law. The validity of this Amendment, its construction,
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interpretation and enforcement, the rights of the parties hereunder, shall be
determined under, governed by, and construed in accordance with the internal
laws of the State of California governing contracts only to be performed in that
State.
5. Counterparts. This Amendment may be executed in any number of
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counterparts and by different parties and separate counterparts, each of which
when so executed and delivered, shall be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. Delivery of
an executed counterpart of a signature page to this Amendment by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Amendment.
6. Due Execution. The execution, delivery and performance of this
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Amendment are within the power of Borrower, have been duly authorized by all
necessary corporate action, have received all necessary governmental approval,
if any, and do not contravene any law or any contractual restrictions binding on
Borrower.
7. Reference to and Effect on the Loan Documents.
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(a) Upon and after the effectiveness of this Amendment, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof" or words
of like import referring to the Credit Agreement, and each reference in the
other Loan Documents to "the Credit Agreement", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to
the Credit Agreement as modified and amended hereby.
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(b) Except as specifically amended above, the Credit Agreement and all
other Loan Documents, are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed and shall constitute
the legal, valid, binding and enforceable obligations of Borrower to
Lender.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Agent under any of the Loan Documents,
nor constitute a waiver of any provision of any of the Loan Documents.
(d) To the extent that any terms and conditions in any of the Loan
Documents shall contradict or be in conflict with any terms or conditions
of the Credit Agreement, after giving effect to this Amendment, such terms
and conditions are hereby deemed modified or amended accordingly to reflect
the terms and conditions of the Credit Agreement as modified or amended
hereby.
8. Ratification. Borrower hereby restates, ratifies and reaffirms each
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and every term and condition set forth in the Credit Agreement, as amended
hereby, and the Loan Documents effective as of the date hereof.
9. Estoppel. To induce Lender to enter into this Amendment and to
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continue to make advances to Borrower under the Credit Agreement, Borrower
hereby acknowledges and agrees that, after giving effect to this Amendment, as
of the date hereof, there exists no Event of Default and no right of offset,
defense, counterclaim or objection in favor of Borrower as against Lender with
respect to the Obligations.
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the
date first above written.
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.,
a California corporation
By:
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Xxxx X. Xxxxxxx
Chief Financial Officer
MELLON BANK, N.A.,
By:
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Xxxxx X. Xxxxx
Vice President
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