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EXHIBIT 10.6
FIRST AMENDMENT
THIS FIRST AMENDMENT dated as of August 14, 1998 (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:
I. SECTION Amendments. Effective on (and subject to the occurrence of)
the Amendment Effective Date (as defined below), the Credit Agreement shall be
amended in accordance with Sections 1.1 through 1.4:
A. Addition of Definitions. Section 1.1 is amended by adding the
following definitions of "Acquisition Loans" and "Loan Limit" in appropriate
alphabetical sequence:
Acquisition Loans means at any time the outstanding principal amount
of all Loans which were used to consummate Permitted Acquisitions (as such
principal amount is amortized from time to time) as agreed by the Company
and the Bank in writing prior to or at the time of completion of any
applicable Permitted Acquisition.
Loan Limit means an amount equal to 125% of the cash and Cash
Equivalent Investments pledged by the Company to the Bank and with respect
to which the Bank has a first-priority perfected security interest.
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A. Amendment to Section 2.1.1. Section 2.1.1 is amended by (a) deleting
the word "and" between clauses (i) and (ii) of the proviso therein and (ii)
replacing the period at the end thereof with a semi-colon followed by the
following language:
and (iii) the aggregate outstanding principal amount of all Loans (other
than Acquisition Loans) shall not at any time exceed the Loan Limit.
A. Amendment to Section 6.2.1. Section 6.2.1 is amended by adding the
following clause (b) thereto:
(b) On any date on which the aggregate principal amount of all Loans
(other than Acquisition Loans) exceeds the Loan Limit, the Company will
make a prepayment of Loans in an amount equal to such excess (rounded
upward, if necessary, to an integral multiple of $100,000).
A. Amendment to EBITDA Ratio. Section 10.6.2 is amended in its entirety
to read as follows:
1. EBITDA Ratio. Not permit, as of the end of any Fiscal Quarter ending
after December 31, 1998, the ratio of (a) the sum of (i) EBITDA for any period
of four consecutive Fiscal Quarters plus (ii) all cash and Cash Equivalent
Investments of the Company and its Subsidiaries as of the last day of such
period plus (iii) all payments on leases (including Capital Leases) of the
Company and its Subsidiaries during such period to (b) the sum, without
duplication, of (i) principal payments on Indebtedness during such period plus
(ii) Interest Expense for such period plus (iii) all payments on leases
(including Capital Leases) of the Company and its Subsidiaries during such
period plus (iv) income tax expense for such period plus (v) Capital
Expenditures for such period to be less than 1.5 to 1.
I. SECTION 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 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
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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.
I. SECTION Effectiveness. The amendments set forth in Section 1 above
shall become effective on the date (the "Amendment Effective Date") 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.
I. SECTION Miscellaneous.
A. 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. After the Amendment Effective Date, all references in the Credit
Agreement and the other Loan Documents to "Credit Agreement" or similar terms
shall refer to the Amended Credit Agreement.
A. 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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A. 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.
A. 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.
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 Xxxxxx
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Title: Sr. Vice President
