EXHIBIT 4.2
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of October 10, 1995 is entered into among XXXXXXXX XXXXXXX
CORPORATION, a Delaware corporation ("MKD"), and XXXXXXXX XXXXXXX CORPORATION,
an Ohio corporation ("MKO") (MKD and MKO each a "Borrower," and collectively,
the "Borrowers"), the banks and other financial institutions named on Schedule A
to the Credit Agreement (as defined below) and whose signatures appear on the
signature pages hereto (each, together with its successors and assigns, a
"Lender," and collectively, the "Lenders"), Mellon Bank, N.A., as administrative
agent for the Lenders (in such capacity, the "Administrative Agent"), and Mellon
Bank, N.A. and Bank of America National Trust and Savings Association as
co-agents for the Lenders (in such capacity, the "Co-Agents"), with reference to
the following facts:
RECITALS
A. Pursuant to the Amended and Restated Credit Agreement dated as of July
31, 1995 by and among the Borrowers, the Lenders, the Administrative Agent and
the Co-Agents (the "Credit Agreement"), the Lenders agreed to make certain
financial accommodations to or for the benefit of the Borrowers upon the terms
and conditions contained therein. Unless otherwise defined in this Amendment,
(i) capitalized terms used herein shall have the meanings attributed to them in
the Credit Agreement as amended hereby, and (ii) references to sections and
subsections shall refer to sections or subsections of the Credit Agreement.
B. In connection with the second phase of the restructuring of the
Borrowers' Indebtedness, (i) American Passenger Rail Car Company L.L.C.
("T-Co"), a limited liability company, has been formed, (ii) MKO will transfer
certain assets of its Transit Division (the "Transit Division Assets") to T-Co
pursuant to that certain Asset Purchase Agreement dated as of October 10, 1995
among T-Co, MKO, MKD and the entities named on Schedule 1 thereto (the "T-Co
Asset Purchase Agreement"), (iii) T-Co and Credit Suisse will enter into a
credit agreement to repay the amounts owing under the T-Co Interim Credit
Agreement and to finance certain of the ongoing operations of T-Co, (iv) T-Co
and the Metra Lenders will enter into a credit agreement (the "Metra Credit
Agreement") to repay the amounts owing under the Metra Interim Credit Agreement
and to finance certain of the ongoing operations of the Metra Contract after its
acquisition by T-Co, and (v) the Existing Lenders, the agent for the Existing
Lenders, and the Borrowers will amend and restate the Override Agreement (such
transactions shall collectively be referred to as the "T-Co Restructuring").
C. In connection with the T-Co Restructuring, the Borrowers have
requested that the Credit Agreement be amended.
D. The Lenders are willing to amend the Credit Agreement upon the terms
and conditions set forth in this Amendment, but only upon the condition, among
others, that the Borrowers, the Administrative Agent, the Co-Agents and the
Lenders shall have executed and delivered this Amendment to the Administrative
Agent.
NOW, THEREFORE, in consideration of the continued performance by the
Borrowers of their promises and obligations under the Credit Agreement and the
other Loan Documents, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
A G R E E M E N T
1. AMENDMENT TO CREDIT AGREEMENT.
1.1 Section 1.1 of the Credit Agreement is hereby amended as follows:
(a) The definition of Cash Equivalent is hereby amended by
deleting the phrase "Standard & Poor's Corporation" and substituting the phrase
"Standard & Poor's Ratings Group" therefor.
(b) A new definition of "Distribution Agreement" is hereby added
in appropriate alphabetical order to read as follows:
"'Distribution Agreement' means that certain Distribution Agreement
dated as of October 10, 1995 by and among Fidelity and Deposit Company of
Maryland, Mellon Bank, N.A. as agent and collateral agent for itself and
the Existing Lenders, the Borrowers, and each of the Subsidiaries that are
signatories thereto."
(c) The definition of Equipment Asset Pool Intercreditor
Agreement is deleted in its entirety.
(d) A new definition of "First Amendment" is hereby added in
appropriate alphabetical order to read as follows:
"'First Amendment' means the First Amendment to Amended and Restated
Credit Agreement dated as of October 10, 1995 among the Borrowers, the
Administrative Agent, the Co-Agents and the Lenders."
(e) The definition of Five Party Agreement is deleted in its
entirety.
(f) A new definition of "Intercreditor Agreement" is hereby
added in appropriate alphabetical order to read as follows:
"'Intercreditor Agreement' means that certain Intercreditor and
Subordination Agreement dated as of October 10, 1995 among Fidelity and
Deposit Company of Maryland, Mellon Bank, N.A. as administrative agent and
collateral agent for itself and the Lenders, Mellon Bank, N.A. as agent and
collateral agent for itself and the Existing Lenders, and T-Co."
(g) The definition of Intercreditor Agreements is deleted in its
entirety and the following is substituted therefor:
"'Intercreditor Agreements' means the Intercreditor Agreement and the
Distribution Agreement."
(h) A new definition of "Metra Agent" is hereby added in
appropriate alphabetical order to read as follows:
"'Metra Agent' means the agent under the Metra Credit Agreement."
(i) The definition of Metra Contract is hereby amended by adding
the phrase ", as assigned to and assumed by T-Co" before the period at the end
thereof.
(j) A new definition of "Metra Credit Agreement" is hereby added
in appropriate alphabetical order to read as follows:
"'Metra Credit Agreement' has the meaning assigned to it in RECITAL B
of the First Amendment."
(k) A new definition of "Metra Guaranty" is hereby added in
appropriate alphabetical order to read as follows:
"'Metra Guaranty' means that certain Guaranty dated as of October 10,
1995 made by MKO in favor of the Metra Agent for the benefit of the Metra
Lenders guarantying the obligations of T-Co to the Metra Lenders under the
Metra Credit Agreement."
(l) A new definition of "Metra Lenders" is hereby added in
appropriate alphabetical order to read as follows:
"'Metra Lenders' means those Existing Lenders that are banks under the
Metra Credit Agreement in their capacity as banks under the Metra Credit
Agreement, and their respective successors and assigns."
(m) The definition of MKD Security Agreement is hereby amended
by adding the phrase ", as the same may be amended, modified, supplemented and
restated from time to time" before the period at the end thereof.
(n) The definition of MKO/MKD Asset Pool Intercreditor Agreement
is deleted in its entirety.
(o) The definition of MKO Security Agreement is hereby amended
by adding the phrase ", as the same may be amended, modified, supplemented and
restated from time to time" before the period at the end thereof.
(p) The definition of Multiparty Agreement is deleted in its
entirety.
(q) A new definition of "New Bonds Agreement" is hereby added in
appropriate alphabetical order to read as follows:
"'New Bonds Agreement' means that certain New Bonds Agreement dated as
of October 10, 1995 among Fidelity and Deposit Company of Maryland, the
Borrowers and the other parties listed on the signature pages thereto."
(r) The definition of Override Agreement is deleted in its
entirety and the following is substituted therefor:
"'Override Agreement' means that certain Amended and Restated Override
Agreement dated as of October 10, 1995 among the Borrowers, Mellon Bank,
N.A. as agent, the Existing Lenders and the Metra Agent, as the same may be
amended, modified, supplemented and restated from time to time."
(s) The definition of Person is hereby amended by adding the
phrase "limited liability company," after the word "corporation."
(t) The definition of Restructuring Documents is deleted in its
entirety and the following is substituted therefor:
"'Restructuring Documents' means this Agreement, the Notes, the
Security Documents, each Guaranty, the Collateral Agent Agreement, the
Override Agreement, the Warrants, the Securities Purchase Agreement, the
Intercreditor Agreements,
the Metra Guaranty, and any other of those documents (i) listed on the
Schedule of Documents and executed or delivered in connection with the
Credit Agreement or (ii) listed on the Schedule of Documents for the
Override Agreement and therein specified to be executed and delivered, or
caused to be executed and delivered, in connection with the Override
Agreement."
(u) The definition of T-Co is deleted in its entirety and the
following is substituted therefor:
"'T-Co has the meaning assigned to it in RECITAL B to the First
Amendment."
(v) A new definition of "T-Co Asset Purchase Agreement" is
hereby added in appropriate alphabetical order to read as follows:
"'T-Co Asset Purchase Agreement' has the meaning assigned to it in
Recital B to the First Amendment."
(w) A new definition of "T-Co Asset Purchase Documents" is
hereby added in appropriate alphabetical order to read as follows:
"'T-Co Asset Purchase Documents' means the T-Co Asset Purchase
Agreement and the documents executed by any Borrower in connection
therewith, including the New Bonds Agreement."
(x) A new definition of "T-Co Restructuring" is hereby added in
appropriate alphabetical order to read as follows:
"'T-Co Restructuring' has the meaning assigned to it in RECITAL B to
the First Amendment."
(y) The definition of Transit Division Intercreditor Agreement
is deleted in its entirety.
(z) A new definition of "Unused Commitment Fee" is hereby added
in appropriate alphabetical order to read as follows:
"'Unused Commitment Fee' has the meaning assigned to it in SECTION
2.7(f).
1.2 Section 2.1 is hereby amended by deleting the reference to
"129,000,000" and substituting "100,000,000" therefor.
1.3 Section 2.2 is hereby amended by deleting the word "Period" after
the word "Borrowing."
1.4 Section 2.7 is hereby amended by adding a new subsection (f) to
read as follows:
"(f) From and after the date of the closing of the T-Co
Restructuring and until the Termination Date, the Borrowers shall
pay to the Administrative Agent, for the account of the Lenders
in accordance with their respective Pro Rata Shares, a fee (the
"Unused Commitment Fee") equal to one-half of one percent (1/2%)
per annum of the amount by which the Commitments exceed the Loans
on any day. The Unused Commitment Fee shall be calculated based
on the actual number of days elapsed and a year of 360 days. The
accrued portion of the Unused Commitment Fee shall be payable (i)
monthly, in arrears, on the first day of the immediately
succeeding calendar month and (ii) on the Termination Date."
1.5 Section 2.9(a) is hereby amended by
(a) adding the phrase "Net Cash Proceeds of any" immediately
after the number "(ii)" and before the phrase "issuance of
capital stock;"
(b) adding the phrase "or insurance proceeds" after the phrase
in subsection (iii) that reads "the Borrowers shall pay or cause
to be paid such Net Cash Proceeds;" and
(c) adding the phrase "and that certain Loan Agreement between
MKD and Xxxxxxxx Xxxxxxx Engenharia S.A. dated ________, 1995 in
substantially the form attached hereto as Schedule 2.9" after the
phrase "that certain Loan Agreement between MKD and Xxxxxxxx
Xxxxxxx Engenharia S.A. dated July 7, 1995."
1.6 Section 7.1(m) is deleted in its entirety.
1.7 Section 7.2(g) is hereby amended by adding the phrase ",
including any breach or default under the New Bonds Agreement" before the period
at the end thereof.
1.8 Section 7.14 is hereby amended by deleting the phrase "non
Transit Division."
1.9 Section 7.16 is deleted in its entirety.
1.10 Section 8.2(a) is hereby amended by adding the following after
the word "thereunder;"
"provided that (i) no cash collateral may be provided to the Bonding
Company (except for cash collateral permitted to be disbursed to or
for the benefit of the Bonding Company under the Distribution
Agreement) or to T-Co except as permitted by Section 8.4, and (ii) no
security interest in office equipment or furnishings, including
computers, shall be provided to either the Bonding Company or T-Co;"
1.11 Section 8.2(c) is hereby amended by adding the phrase "and
provided, further, that such Lien is confined solely to the asset so acquired;"
after the phrase "within 90 days after the acquisition thereof."
1.12 Section 8.4 is hereby amended by
(a) deleting the phrase "Equipment Asset Pool;" and
(b) adding the phrase "except Emkay Development Company, Inc."
after the phrase "or permit any Consolidated Subsidiary."
1.13 Section 8.15 is deleted in its entirety.
1.14 Section 9.1(i) is hereby amended by deleting the phrase
"occurrence of any of the events specified in subsections (a) through (g) of
Section 6.1 of the Multiparty Agreement or the."
1.15 Section 9.1(r) is hereby amended by deleting the phrase "the
Multiparty Agreement or the Intercreditor Agreements" and substituting the
phrase "the Distribution Agreement or the Intercreditor Agreement" therefor.
1.16 Section 9.1(s) is deleted in its entirety and the following is
substituted therefor:
"(s) Any claim is made by T-Co or any other Person asserting that the
Borrowers have breached a representation, warranty or covenant contained in
the T-Co Asset Purchase Documents, or any payments are made by the
Borrowers on account of any such claim or breach, in each case in an
aggregate amount in excess of $500,000; PROVIDED, HOWEVER, that no Event of
Default shall exist under this SECTION 9.1(s) if the Borrowers are
contesting, in good faith, the claim that they have breached a
representation, warranty or covenant contained in the T-Co Asset Purchase
Documents;"
1.17 Section 9.1(u) is deleted in its entirety and the following is
substituted therefor:
"(u) There shall be any amendment or other modification of the Metra
Guaranty, the Metra Credit Agreement or any related documents that
increases the maximum amount payable under the Metra Guaranty or the Metra
Credit Agreement without the consent of All Lenders, including amendments
or modifications relating to the maximum principal amount, the rate of
interest, or fees and other charges payable under the Metra Guaranty, the
Metra Credit Agreement or any related documents;"
1.18 Section 9.1(v) is deleted in its entirety and the following is
substituted therefor:
"(v) There shall be any amendment or other modification of the
Override Agreement or any related documents, without the consent of the
Majority Lenders."
1.19 A new Section 9.1(w) is added in appropriate alphabetical order
to read as follows:
"(w) There shall be any amendment or other modification to the T-Co
Asset Purchase Documents, including the New Bonds Agreement and the
Reimbursement Agreement, without the consent of the Majority Lenders."
1.20 Section 13.11 is hereby amended by deleting the phrase "MKO/MKD
Asset Pool."
1.21 Schedule A -- Schedule of Lenders is hereby deleted in its
entirety and the Schedule of Lenders attached hereto as Schedule A is
substituted therefor.
1.22 Schedule B -- Schedule of the Existing Lenders and Existing
Agreements is hereby deleted in its entirety and the Schedule of the Existing
Lenders and Existing Agreements attached hereto as Schedule B is substituted
therefor.
1.23 Schedule E -- Schedule of Guarantors is hereby deleted in its
entirety and the Schedule of Guarantors attached hereto as Schedule E is
substituted therefor.
1.24 Schedule F -- Cash Management System is hereby deleted in its
entirety and the Cash Management System attached hereto as Schedule F is
substituted therefor.
1.25 Schedule G -- Schedule of Real Property Collateral is hereby
deleted in its entirety and the Schedule of Real Property Collateral attached
hereto as Schedule G is substituted therefor.
1.26 Schedule 5.1(h) -- Schedule of Title Policies is hereby deleted
in its entirety and the Schedule of Title Policies attached hereto as Schedule
5.1(h) is substituted therefor.
1.27 Schedule 5.1(n) -- Schedule of Pending and Threatened Litigation
is hereby deleted in its entirety and the Schedule of Pending and Threatened
Litigation attached hereto as Schedule 5.1(n) is substituted therefor.
1.28 Schedule 6.7A -- Schedule of Indebtedness is hereby deleted in
its entirety and the Schedule of Indebtedness attached hereto as Schedule 6.7A
is substituted therefor.
1.29 Schedule 6.7B -- Schedule of Contingent Obligations is hereby
deleted in its entirety and the Schedule of Contingent Obligations attached
hereto as Schedule 6.7B is substituted therefor.
1.30 Schedule 6.8 -- Schedule of Material Contracts is hereby
deleted in its entirety and the Schedule of Material Contracts attached hereto
as Schedule 6.8 is substituted therefor.
1.31 Schedule 6.8A -- Material Defaults is hereby deleted in its
entirety and Material Defaults attached hereto as Schedule 6.8A is substituted
therefor.
1.32 Schedule 6.19 -- Schedule of Material Adverse Effects is
hereby deleted in its entirety and the Schedule of Material Adverse Effects
attached hereto as Schedule 6.19 is substituted therefor.
1.33 Schedule 6.20 -- Schedule of Subsidiaries is hereby deleted in
its entirety and the Schedule of Subsidiaries attached hereto as Schedule 6.20
is substituted therefor.
1.34 Schedule 6.23A -- Schedule of Business Locations is hereby
deleted in its entirety and the Schedule of Business Locations attached hereto
as Schedule 6.23A is substituted therefor.
1.35 Schedule 6.23B -- Schedule of Trade Names is hereby deleted in
its entirety and the Schedule of Trade Names attached hereto as Schedule 6.23B
is substituted therefor.
1.36 Schedule 7.1(k) -- Backlog Certificate is hereby deleted in
its entirety and the Backlog Certificate attached hereto as Schedule 7.1(k) is
substituted therefor.
1.37 Schedule 7.2(c)(A) -- Schedule of Reportable Events is hereby
deleted in its entirety and the Schedule of Reportable Events attached hereto as
Schedule 7.2(c)(A) is substituted therefor.
1.38 Schedule 7.2(c)(B) -- Schedule of Plan Terminations is hereby
deleted in its entirety and the Schedule
of Plan Terminations attached hereto as Schedule 7.2(c)(B) is substituted
therefor.
1.39 Schedule 8.1 -- Schedule of Existing Indebtedness is hereby
deleted in its entirety and the Schedule of Existing Indebtedness attached
hereto as Schedule 8.1 is substituted therefor.
1.40 Schedule 8.2 -- Schedule of Permitted Liens is hereby deleted in
its entirety and the Schedule of Permitted Liens attached hereto as Schedule 8.2
is substituted therefor.
1.41 Schedule 8.5 -- Schedule of Permitted Investments is hereby
deleted in its entirety and the Schedule of Permitted Investments attached
hereto as Schedule 8.5 is substituted therefor.
1.42 Schedule 8.10 -- Schedule of Operating Leases is hereby deleted
in its entirety and the Schedule of Operating Leases attached hereto as Schedule
8.10 is substituted therefor.
2. CONSENT TO AMENDED AND RESTATED OVERRIDE AGREEMENT.
The Lenders hereby consent to that certain Amended and Restated Override
Agreement dated as of October 10 among the Borrowers, Mellon Bank, N.A. as
agent, the Existing Lenders and the Metra Agent.
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
only upon satisfaction of each of the following conditions:
(a) FIRST AMENDMENT. The Administrative Agent shall have
received copies of this Amendment that, when taken together, bear the signatures
of the Borrowers, the Administrative Agent, the Co-Agents and each of the
Lenders.
(b) GUARANTOR CONSENTS. The Administrative Agent shall have
received a copy of the accompanying Guarantor Consents executed by each of the
Guarantors.
(c) CONSUMMATION OF T-CO RESTRUCTURING. The T-Co Restructuring
shall have been consummated with all conditions to effectiveness having been
satisfied, subject only to the execution of this Amendment.
(d) LANDLORD WAIVERS AND CONSENTS. The Administrative Agent
shall have received the Landlord Waivers and Consents in favor of the Collateral
Agent, together with memoranda of leases for the premises leased or used by the
Borrowers and Guarantors as set forth on SCHEDULE 2 hereto, in form and
substance satisfactory to the Co-Agents.
(e) LEASEHOLD DEEDS OF TRUST, MODIFICATIONS, AND TITLE
INSURANCE. The Administrative Agent shall have received an original, executed
and notarized Leasehold Deed of Trust, Leasehold Mortgage, and/or Modification
to Leasehold Deed of Trust or Mortgage for each of the properties listed on
Schedule 3 hereto; PROVIDED, HOWEVER, that all necessary written consents from
landlords to such Leasehold Deeds of Trust and Leasehold Mortgages have been
acquired.
(f) COLLATERAL DEEDS OF TRUST. The Administrative Agent shall
have received an Assignment of Mortgage pertaining to that certain Purchase
Money Mortgage executed by Englewood Plaza South Limited Partnership in favor of
Xxxxxxxx Xxxxxxx Corporation, identified on Appendix I to the Schedule of
Documents.
(g) CERTIFICATES OF TITLE. The Administrative Agent shall have
received all original certificates of title of the certificated vehicles listed
in Schedule 4.23 to the Schedule of Documents.
(h) PHASE I SITE ASSESSMENTS. Administrative Agent shall have
received a Phase I Site Assessment for the real property located at 0000 Xxxxx
Xxxx, Xxxxxxxxx, Xxxx.
(i) SCHEDULE OF ACCOUNT DEBTORS. Administrative Agent shall
have received a Schedule of Account Debtors, listing all account debtors of each
Borrower and Guarantor (other than lessees listed on the Schedule of Real
Property Leases and obligors of notes receivable listed on the Schedule of Notes
Receivable), as of June 30, 1995, including (i) the name and address of each
account debtor, (ii) the nature of the account, and (iii) the outstanding
balance owing on such account, and, at the Closing Date, a certificate signed by
an officer of each Borrower and Guarantor certifying that the Schedule is
complete and correct, as of the Closing Date.
(j) FOREIGN COUNSEL LEGAL OPINIONS. Administrative Agent shall
have received (i) Dutch counsel's legal opinion stating that MKO has a perfected
security interest in MK-River Constructie Maatschappij, B.V. ("MK-River") and
Xxxxxxxx Xxxxxxx B.V. ("MK-BV"), or evidence that its Dutch subsidiaries have
been liquidated, and (ii) Polish counsel's legal opinion stating that Collateral
Agent has a perfected interest in MKO's uncertificated shares of the American
Bank in Poland.
(k) OTHER DOCUMENTS. Administrative Agent shall have received
all documents listed on the Schedule of Documents attached as Exhibit B to the
Override Agreement.
4. REFERENCE TO AND EFFECT ON CREDIT AGREEMENT AND RELATED
DOCUMENTS.
(a) Upon the effectiveness of this Amendment, on and after the
date hereof each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import shall mean and be a
reference to the Credit Agreement as amended hereby and each reference in the
Loan Documents to the Credit Agreement shall also mean and be a reference to the
Credit Agreement as amended hereby.
(b) Except as expressly modified under Section 1 of this
Amendment, all of the terms and conditions set forth in the Credit Agreement and
the other Loan Documents are incorporated herein by this reference, and the
Obligations of the Borrowers under the Credit Agreement and the other Loan
Documents are hereby acknowledged, confirmed and ratified by the Borrowers.
(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 the Agents or the Lenders under the Credit Agreement
or any of the Loan Documents or Restructuring Documents, nor constitute a waiver
of any provision of the Credit Agreement or any of the Loan Documents or
Restructuring Documents.
5. ENTIRE AGREEMENT. This Amendment, together with the Credit Agreement
and the other Loan Documents, is the entire agreement between the parties hereto
with respect to the subject matter hereof. This Amendment supersedes all prior
and contemporaneous oral and written agreements and discussions with respect to
the subject matter hereof. Except as otherwise expressly modified herein, the
Loan Documents shall remain in full force and effect.
6. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and
warrants that the representations and warranties contained in the Credit
Agreement were true and correct in all material respects when made and, except
to the extent (a) that a particular representation or warranty by its terms
expressly applies only to an earlier date, or (b) such Borrower has previously
advised the Administrative Agent in writing as contemplated under the Credit
Agreement, are true and correct in all material respects as of the date hereof.
The recitals set forth at the beginning of this Amendment are true and correct,
and such recitals are incorporated into and are a part of this Amendment.
7. MISCELLANEOUS.
7.1 COUNTERPARTS. This Amendment may be executed in identical
counterpart copies, each of which shall be an original,
but all of which shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Amendment. Any Person delivering this Amendment by facsimile shall send
the original manually executed counterpart of this Amendment to the
Administrative Agent promptly after such facsimile transmission.
7.2 AUTHORITY. Each Person executing this Amendment represents and
warrants that he or she is lawfully authorized and empowered to execute this
Amendment on behalf of the entity on whose behalf such Person is signing, and
that upon execution, this Amendment will be binding upon such entity, without
any further approval, ratification or other action.
7.3 HEADINGS. Section headings used herein are for convenience of
reference only, are not part of this Amendment, and are not to be taken into
consideration in interpreting this Amendment.
7.4 GOVERNING LAW. This Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the Commonwealth of
Pennsylvania applicable to contracts made and performed in such state, without
regard to the principles thereof regarding conflict of laws.
7.5 CONFLICT OF TERMS. In the event of any inconsistency between the
provisions of this Amendment and any provision of the Credit Agreement, the
terms and provisions of this Amendment shall govern and control.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective duly authorized representative as of the
day and year first above written.
BORROWERS: XXXXXXXX XXXXXXX CORPORATION
(a Delaware corporation)
/s/ Xxxxxxx X. Xxxxxxx
By:
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
XXXXXXXX XXXXXXX CORPORATION
(an Ohio corporation)
/s/ Xxxxxxx X. Xxxxxxx
By:
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
AGENTS AND LENDERS:
MELLON BANK, N.A., as Administrative Agent, a Co-Agent
and a Lender
/s/ Xxxx X. Xxxxxxx
By
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as a Co-Agent and a Lender
/s/ Xxxxx X. Xx
By
---------------------------------
Name: Xxxxx X. Xx
Title: Senior Vice President
[ADDITIONAL SIGNATURES FOR LENDERS CONTINUED ON NEXT PAGE]
LENDERS:
Bank of America Illinois
/s/ Xxxxx X.Xx
By:
-------------------------
Name: Xxxxx X. Xx
Title:
----------------------
Bank of Montreal
/s/ X. Xxxxxxxxxxx
By:
-------------------------
Name: X. Xxxxxxxxxxx
Title: Vice President
The Bank of Nova Scotia
/s/X. X. Xxxxxxxxx
By:
-------------------------
Name: X. X. Xxxxxxxxx
Title: Assistant General Mgr
The Bank of Tokyo, Ltd.,
Seattle Branch
/s/ Xxxxxxx X. Xxxxx
By:
-------------------------
Name: Xxxxxxx X. Xxxxx
Title:
----------------------
Banque Nationale de Paris
/s/ Xxxxxxxxx Xxxxx
By:
-------------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
Banque Paribas
/s/ Xxxx Xxxx
By:
-------------------------
Name: Xxxx Xxxx
Title: Group Vice President
By: /s/ Xxxx X. XxXxxxxxx
---------------------------
Name: Xxxx X. XxXxxxxxx
Title: Regional General Manager
CIBC Inc.
/s/ Xxxxxx X. Xxxxx
By:
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Citibank, N.A.
/s/ Xxxxxxx X. Xxxxx
By:
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Credit Lyonnais, New York Branch
/s/ Xxxx Xxxxxxx
By:
-------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
Deutsche Bank AG,
Los Angeles Branch and/or Cayman Islands Branch
/s/ Xxxxxxxx X. Xxxxxxx
By:
-------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Director
/s/ J. Xxxxx Xxxxxx
By:
-------------------------
Name: J. Xxxxx Xxxxxx
Title: Vice President
The Hongkong and Shanghai
Banking Corporation Limited
/s/ Xxxxxx X. Xxxxx
By:
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
[ADDITIONAL SIGNATURES FOR LENDERS CONTINUED ON NEXT PAGE]
The Industrial Bank of Japan, Limited, Los Angeles Agency
/s/ Kiyato
By:
-------------------------
Name: Kiyato
Title: SVP
Key Bank of Idaho
/s/ Xxxxx X. Xxxxxx
By:
-------------------------
Name: Xxxxx X. Xxxxxx
Title: VP
The Long-Term Credit Bank of
Japan, Ltd., Los Angeles Agency
/s/ Xxxx X. Xxxxx
By:
-------------------------
Name: Xxxx X. Xxxxx
Title: Vice President, Manager
Xxxxxx Guaranty Trust Company
/s/ D. Xxxxx Xxxxxxxxxx
By:
-------------------------
Name: D. Xxxxx Xxxxxxxxxx
Title: Vice President
National Westminster Bank PLC
/s/ Xxxxxxxx X. Xxxxxxx
By:
-------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President & Counsel
PNC Bank, N.A.
/s/Xxxxxx X. XxXxxx
By:
-------------------------
Name: Xxxxxx X. XxXxxx
Title: Sr. Vice President
Royal Bank of Canada
/s/Xxxxx X. Xxxxx
By:
-------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Manager
San Paolo Bank SpA
/s/ Xxxxxx X. Xxxxx
By:
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Branch Manager
/s/ Xxxx Xxxxxx
By:
-------------------------
Name: Xxxx Xxxxxx
Title: VP
Society National Bank
/s/ Xxx X. Xxxxxx
By:
-------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
Union Bank of Switzerland
/s/ Xxxxx Xxxxxxx
By:
-------------------------
Name: L. Xxxxx Xxxxxxx
Title: Vice President
/s/ Xxxxx X. Xxxxxx
By:
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Westdeutsche Landesbank
Girozentrale, New York and
Cayman Islands Branches
/s/ Xxxxxxxxx Xxxxxxxxxx
By:
-------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Vice President
Credit Department
/s/ Xxxxxxxxx Xxxxxxx
By:
-------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Associate
GUARANTOR CONSENTS
Each of the undersigned, a Guarantor under a Guaranty, hereby (i)
ratifies and reaffirms, as of the date hereof, all of the provisions of its
Guaranty and its Guaranty Security Agreement, (ii) acknowledges receipt of a
copy of the First Amendment to Amended and Restated Credit Agreement dated as of
OCTOBER 10, 1995 (the "Amendment") and (iii) consents to all of the provisions
of the Amendment.
National Projects, Inc.,
a Nevada corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
Xxxxxxxx-Xxxxxxx Services, Inc.,
a Nevada corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
Xxxxxxxx-Xxxxxxx Financial Company, Inc., a Nevada corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
Atascosa Mining Co.,
a Nevada corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
Centennial Engineering, Inc.,
a Colorado corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Treasurer
CF Systems Corporation,
a Massachusetts corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
Chemical Demilitarization of Anniston Company, a Nevada corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and
Treasurer
Joy MK Projects Company,
a Nevada corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and
Assistant Treasurer
MK Capital Company,
a Nevada corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
XX-Xxxxxxxx Engineering Company,
a Michigan corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
XX-Xxxxxxxx of Idaho Company,
a Idaho corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
XX-Xxxxxxxx of Oak Ridge Company,
a Tennessee corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
MK Infrastructure Corporation,
a Delaware corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Treasurer
MK-Train Control, Inc.,
a Nevada corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
Navasota Mining Company, Inc.,
a Nevada corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
Yampa Mining Co.,
a Nevada corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
Xxxxxxxx-Xxxxxxx Company, Inc.,
a Delaware corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and
Treasurer
Xxxxxxxx-Xxxxxxx Engineers, Inc.,
a Nevada corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and
Treasurer
Xxxxxxxx-Xxxxxxx International Company, Inc., a Nevada corporation
/s/ Xxxxxxx X. Xxxxxxx
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and
Treasurer
SCHEDULES AND EXHIBITS
THE REGISTRANT AGREES TO PROVIDE TO THE
SECURITIES AND EXCHANGE COMMISSION, UPON REQUEST,
WITH COPIES OF THE SCHEDULES AND EXHIBITS HERETO.
20
