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EXHIBIT 10.12a
FIRST AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Amended and Restated Credit Agreement (this
"Amendment"), made and entered into effective as of the 15th day of May, 1995,
by and among X'Xxxxxxxx Industries, Inc., a Delaware corporation
("Industries"), X'Xxxxxxxx Industries Holdings, Inc., a Delaware corporation
("Holdings"), The Boatmen's National Bank of St. Louis, a national banking
association and Wachovia Bank of Georgia, N.A., a national banking association
(each a "Lender" and together, "Lenders"), and The Boatmen's National Bank of
St. Louis, as agent ("Agent").
Recitals:
A. Borrower and Lenders have entered into that certain Amended and
Restated Credit Agreement dated as of November 22, 1994 (the "Loan
Agreement") pursuant to which Lenders have extended certain credit
facilities to Borrower.
B. Borrower and Lenders desire, upon the terms and conditions set forth
herein, to amend the Loan Agreement to provide for the exclusion of
certain amounts related to the securities litigation referred to on
Borrower's Disclosure Schedule to the Loan Agreement.
In consideration of the mutual covenants and promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Borrower and Lenders hereby agree as follows:
1. DEFINITIONS. All capitalized terms used and not otherwise defined
herein shall have the meanings given them in the Loan Agreement.
2. AMENDMENT TO LOAN AGREEMENT. The definition of "EBITDA" in Section
15.1 of the Loan Agreement is hereby deleted in its entirety and the following
is substituted in lieu thereof:
"'EBITDA' means, with respect to any fiscal period of
Borrower, the net income of Borrower for such fiscal period,
as determined in accordance with GAAP and reported on the
Financial Statements for such period, minus any extraordinary
gains, plus any extraordinary losses; provided, however, that
regardless of GAAP, any amounts paid in settlement of, or
pursuant to a judgment rendered in, the securities litigation
described on the Disclosure Schedule shall be treated as
extraordinary items, and provided further, that the aggregate
of all such amounts shall not exceed the lesser of (i) the
amount of any judgment rendered in such litigation or (ii)
five percent (5%) of Borrower's Tangible Net Worth as of
December 31, 1994, plus all of the following that were
deducted in calculating such net income: (a) interest expense;
(b) provisions for taxes; and (c) depreciation, amortization
and other non-cash charges."
3. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby
represents and warrants to Lenders that (i) no consents are necessary from any
third parties for Borrower's execution, delivery or performance of this
Amendment, (ii) this Amendment constitutes the legal, valid and binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms, except to the extent that the enforceability thereof against Borrower
may be limited by bankruptcy, insolvency, fraudulent conveyance,
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reorganization, moratorium or similar laws affecting the enforceability of
creditors' rights generally or by equitable principles of general application
(whether considered in an action at law or in equity), (iii) except as
disclosed on the disclosure schedule attached to the Loan Agreement, all of the
representations and warranties contained in Section 11 of the Loan Agreement,
as amended by this Amendment, are true and correct in all material respects
with the same force and effect as if made on and as of the date of this
Amendment, and (iv) there exists no Default or Event of Default under the Loan
Agreement, as amended by this Amendment.
4. EFFECT ON LOAN DOCUMENTS. Except as specifically amended hereby, the
Loan Documents shall remain in full force and effect and are hereby ratified
and confirmed in all respects. The execution, delivery and effectiveness of
this Amendment shall not operate as a waiver of any right, power or remedy of
Lenders under the Loan Documents, nor constitute a waiver of any provision of
the Loan Documents except as specifically set forth herein. Upon the
effectiveness of this Amendment, each reference in the Loan Agreement to "the
Agreement", "hereunder", "hereof", "herein", or words of like import, shall
mean and be a reference to the Loan Agreement, as amended hereby.
5. REAFFIRMATION. Borrower hereby ratifies, affirms, acknowledges, and
agrees that the Loan Agreement (as amended by this Amendment) represents the
valid, enforceable and collectible obligations of Borrower, except to the
extent that the enforceability thereof against Borrower may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting the enforceability of creditors' rights generally or by
equitable principles of general application (whether considered in an action at
law or in equity), and Borrower further acknowledges that there are no existing
claims, defenses, personal or otherwise, or rights of setoff whatsoever known
to Borrower with respect to any of the Loan Documents.
6. GOVERNING LAW. This Amendment has been delivered in St. Louis,
Missouri and shall be governed by and construed in accordance with the laws and
decisions of the State of Missouri without giving effect to the choice or
conflicts of law principles thereunder.
7. SECTION TITLES. The section titles contained in this Amendment are and
shall be without substance, meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.
8. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, and on separate counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first above written.
X'XXXXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Vice President-Finance and
Chief Financial Officer
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Vice President-Finance and
Chief Financial Officer
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS, AS
AGENT AND A LENDER
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Assistant Vice President
WACHOVIA BANK OF GEORGIA, N.A., AS A LENDER
By: /s/ Xxxxx X. Xxxxx
Senior Vice President
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