EXHIBIT 10.4
THIRD AMENDMENT
THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
December 1, 1998, among XXXX CORP. (the "Company"), XXXX RENTAL, INC. ("Xxxx
Rental"), XXXX MACHINERY, INC. ("Xxxx Machinery", and together with the Company
and Xxxx Rental, the "Borrowers", and each a "Borrower"), the lenders party to
the Credit Agreement referred to below (the "Lenders"), and Bankers Trust
Company, as Agent (the "Agent"). All capitalized terms used herein and not
otherwise defined herein shall have the respective meanings provided such terms
in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrowers, the Lenders and the Agent are party to a Credit
Agreement, dated as of May 1, 1998 (as amended, modified or supplemented to, but
not including, the date hereof, the "Credit Agreement"); and
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto agree as follows;
NOW, THEREFORE, it is agreed:
1. The parenthetical appearing in Section 3.03(c) the Credit Agreement
is hereby amended by deleting the text "(other than pursuant to clause (viii)(v)
thereof)" appearing in said parenthetical.
2. Section 4.02 of the Credit Agreement is hereby amended by inserting
the following new clause (d) at the end thereof:
"(d) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each date on or after December 1, 1998 upon which the
Company or any of its Subsidiaries receives any cash proceeds from the
issuance by the Company or any of its Subsidiaries of any Senior
Subordinated Notes pursuant to Section 9.04(viii), an amount equal to 100%
of the Net Debt Proceeds of the respective issuance of Senior Subordinated
Notes shall be applied on such date as a mandatory repayment of principal of
then outstanding Loans."
3. Section 9.04(viii) of the Credit Agreement is hereby amended by
deleting sub-clause (v) appearing therein in its entirety and inserting the
following new sub-clause (v) in lieu thereof:
"(v) the Net Debt Proceeds from the issuance of any subsequent Senior
Subordinated Notes are applied to repay principal of then outstanding Loans
pursuant to Section 4.02(d)".
4. In order to induce the Lenders to enter into this Agreement, each
Borrower hereby represents and warrants that (i) no Default or Event of Default
exists as of the Amendment Effective Date (as defined below), both before and
after giving effect to this Amendment, and (ii) on the Amendment Effective Date,
both before and after giving effect to this Amendment, all representations and
warranties contained in the Credit Agreement and in the other Credit Documents
are true and correct in all material respects.
5. This Amendment shall become effective on the date (the "Amendment
Effective Date") when each Borrower and the Required Lenders shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile transmission) the same to the Agent at
the Notice Office.
6. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
7. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with each Borrower and the Agent.
8. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date hereof.
XXXX CORP.
By
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Title:
XXXX RENTAL, INC.
By
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Title:
XXXX MACHINERY, INC.
By
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Title:
BANKERS TRUST COMPANY, Individually
and as Agent
By
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Title:
DEUTSCHE FINANCIAL SERVICES
By
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Title:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By
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Title:
LASALLE BUSINESS CREDIT, INC.
By
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Title:
CIT GROUP/BUSINESS CREDIT, INC.
By
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Title:
IBJ XXXXXXXX BUSINESS CREDIT CORPORATION
By
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Title:
NATIONAL BANK OF CANADA
By
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Title:
SUMMIT BANK
By
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Title:
FIRST UNION NATIONAL BANK
By
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Title:
UNION BANK OF CALIFORNIA N.A.
By
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Title:
BANK ATLANTIC
By
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Title:
BNY FINANCIAL CORPORATION
By
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Title:
BNY FINANCIAL CORPORATION
By
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Title:
FLEET NATIONAL BANK
By
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Title:
BANKBOSTON, N.A.
By
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Title:
