THIRD AMENDMENT TO
REVOLVING CREDIT AND SECURITY AGREEMENT
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THIS THIRD AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT
("Amendment"), dated as of August 13, 2003, is by and between BADGER PAPER
XXXXX, INC., a corporation organized under the laws of the State of Wisconsin
("Borrower") and PNC BANK, NATIONAL ASSOCIATION ("PNC") as sole Lender and as
Agent under the Credit Agreement referred to below.
W I T N E S S E T H :
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WHEREAS, PNC and Borrower entered into a certain Revolving Credit and
Security Agreement, dated as of November 30, 2001, as amended by a First
Amendment to Revolving Credit and Security Agreement, dated as of April 30, 2002
and as further amended by a Second Amendment to Revolving Credit and Security
Agreement, dated as of September, 2002 (the "Credit Agreement");
WHEREAS, Borrower has requested that the Credit Agreement be amended as set
forth herein;
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not otherwise defined
shall have the meanings provided for in the Credit Agreement.
2. AMENDMENT. Subject to satisfaction of the conditions precedent set forth
in Section 4 below, the Credit Agreement is hereby amended as follows:
2.1 Section 6.5 of the Loan Agreement is hereby restated in its
entirety to read as follows:
"6.5 Fixed Charge Coverage Ratio; Minimum EBITDA. Cause to be
maintained (i) at the end of each calendar quarter commencing with the
calendar quarter ending March 31, 2002 (but excluding the calendar
quarter ending September 30, 2003), a Fixed Charge Coverage Ratio of
not less than 0.9 to 1.0 for the calendar quarter ending December 31,
2003 and not less than 1.0 to 1.0 for all other applicable calendar
quarters, calculated for the twelve immediately preceding months
ending as of the date of determination, and (ii) EBITDA for the
calendar quarter ending September 30, 2003 of not less than
$1,200,000."
3. WAIVER.
3.1 PNC as Agent and sole Lender hereby waives Borrower's compliance
with the Fixed Charge Coverage Ratio covenant, as set forth in Section 6.5
of the Loan Agreement, for the calendar quarter ending June 30, 2003 and
agrees that for such calendar quarter Borrower's Fixed Charge Coverage
Ratio may be less than 1.0 to 1.0, but not less than 0.33 to 1.0.
4. CONDITIONS PRECEDENT. This Amendment shall become effective upon the
delivery to Agent of executed counterparts of this Amendment and the following
additional items:
a. Payment to Agent in immediately available funds of an amendment
and waiver fee in the amount of $50,000
b. Such other items as Agent may reasonably request.
5. EXPENSES. Borrower shall pay, upon demand, all reasonable attorneys'
fees and out-of-pocket costs of Agent and Lender in connection with this
Amendment and the agreements, documents and other items contemplated hereunder.
6. REAFFIRMATION OF GRANT OF SECURITY INTEREST. Borrower expressly
acknowledges and agrees that all collateral, security interests, liens, pledges
and mortgages heretofore, under this Amendment or hereafter granted to Agent
including, without limitation, such collateral, security interests, liens,
pledges and mortgages granted under the Credit Agreement and the Other Documents
and all supplements thereto, extend to and secure all of the obligations of
Borrower to Agent and Lenders, now existing or hereafter arising including,
without limitation, those arising in connection with the Credit Agreement, as
amended by this Amendment, upon the terms set forth in such agreements, all of
which security interests, liens, pledges and mortgages are hereby ratified,
reaffirmed, confirmed and approved.
7. MISCELLANEOUS.
7.1 Limited Nature of Amendment. The parties hereto acknowledge and
agree that the terms and provisions of this Amendment amend, add to and
constitute a part of the Credit Agreement. Except as expressly waived or
modified and amended by the terms of this Amendment, all of the other terms
and conditions of the Credit Agreement and all documents executed in
connection therewith or referred to or incorporated therein remain in full
force and effect and are hereby ratified, reaffirmed, confirmed and
approved.
7.2 Conflict. If there is an express conflict between the terms of
this Amendment and the terms of the Credit Agreement, or any of the other
agreements or documents executed in connection therewith or referred to or
incorporated therein, the terms of this Amendment shall govern and control.
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7.3 Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original.
7.4 Representations and Warranties. Borrower represents and warrants
to Agent and Lenders as follows: (A) Borrower has all necessary corporate
power and authority to execute and deliver this Amendment and perform its
obligations hereunder; (B) this Amendment and the Credit Agreement, as
amended hereby, constitute the legal, valid and binding obligations of
Borrower and are enforceable against Borrower in accordance with their
terms; and (C) all representations and warranties of Borrower contained in
the Credit Agreement and all other agreements, instruments and other
writings relating thereto are true and complete as of the date hereof.
7.5 Governing Law. This Amendment was executed and delivered in
Chicago, Illinois and shall be governed by and construed in accordance with
the internal laws (as opposed to conflicts of law provisions) of the State
of Illinois.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
BADGER PAPER XXXXX, INC.
By:
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Name:
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Title:
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PNC BANK, NATIONAL ASSOCIATION,
as Agent and Lender
By:
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Name:
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Title:
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