1
Exhibit 4.3(d)
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT"), dated as
of October 30, 1998, is entered into among EASCO CORPORATION ("BORROWER"), the
various financial institutions which are parties hereto ("LENDERS") and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (as successor by merger to BANK
OF AMERICA ILLINOIS), as agent ("AGENT").
W I T N E S S E T H:
--------------------
WHEREAS, Borrower, Lenders and Agent are parties to a Credit Agreement
dated as of March 18, 1994 as amended and modified by a First Amendment to
Credit Agreement and Security Agreement dated as of January 31, 1995 and a
Second Amendment to Credit Agreement dated as of February 18, 1997 (as amended,
modified or supplemented at any time, the "CREDIT AGREEMENT"); and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. Terms defined in the Credit Agreement and
not otherwise defined herein are used herein as therein defined.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT.
The Credit Agreement is amended as follows:
SECTION 2.1. AMENDMENT OF RECITALS. The Recital in the fourth WHEREAS
clause to the Credit Agreement is amended by inserting the following clause (c)
following clause (b) thereof:
"(c) in the case of the IRB Letter of Credit, for support of
the Borrower's obligations in connection with The Hertford County
Industrial Facilities and Pollution Control Financing Authority
Industrial Development Revenue Bonds (Easco Corporation Project),
Series 1998; and".
SECTION 2.2. AMENDMENT OF SCHEDULE I. Schedule I to Section 1.1 of the
Credit Agreement is amended by adding the following definitions in proper
alphabetical order:
2
"`Bonds' means the $6,000,000 aggregate principal amount
Industrial Development Revenue Bonds (Easco Corporation Project),
Series 1998, issued by the Financing Authority under the Hertford
Indenture.
`Financing Authority' means The Hertford County Industrial
Facilities and Pollution Control Financing Authority.
`Hertford Indenture" means the Trust Indenture dated as of
November 1, 1998 between The Hertford County Industrial Facilities and
Pollution Control Financing Authority as Issuer and PNC Bank, National
Association, as Trustee.
`IRB Letter of Credit' means an irrevocable letter of credit
in the form of Exhibit K to support the obligations of the Borrower in
connection with The Hertford County Industrial Facilities and Pollution
Control Financing Authority Industrial Development Revenue Bonds (Easco
Corporation Project), Series 1998, and otherwise satisfactory to the LC
Issuer.
`Loan Agreement' means the Loan Agreement dated as of
November 1, 1998 between the Borrower and the Financing Authority."
SECTION 2.3. AMENDMENT OF SECTION 5.1. Section 5.1 is amended by adding
the following sentence after the first sentence in the first paragraph thereof:
"The IRB Letter of Credit shall be in the form of Exhibit K hereto and
otherwise as approved by the LC Issuer."
SECTION 2.4. ADDITION OF NEW SECTION 9.1.11. A new Section 9.1.11 is
added to the Credit Agreement as follows:
"SECTION 9.1.11. DEFAULT UNDER THE LOAN AGREEMENT, ETC.. Any
"Event of Default" (as defined therein) shall occur under the Loan Agreement or
the Hertford Indenture, after giving effect to the applicable grace period, if
any."
SECTION 2.5. AMENDMENT OF SECTION 11.3. Section 11.3 is amended by
inserting the words "and the IRB Letter of Credit" following the words "the
Credit Documents" in the first sentence of Section 11.3 of the Credit Agreement.
SECTION 2.6. EXHIBIT K. A new Exhibit K shall be added to the Credit
Agreement in the form of Annex I to this Amendment.
SECTION 2.7. AMENDMENT TO DEFINITIONS. The definition of "LC Issuer" in
Schedule I to the Credit Agreement is hereby amended by deleting "Continental
Bank" and substituting "Bank of America National Trust and Savings Association"
in place thereof.
SECTION 3. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents
and warrants to Agent and Lenders, as of the date of the actual execution of
this Amendment, that:
-2-
3
3.1. DUE AUTHORIZATION, ETC. The execution and delivery by it of this
Amendment and the performance by it of its obligations under the Credit
Agreement are duly authorized by all necessary corporate action, do not require
any filing or registration with or approval or consent of any governmental
agency or authority, do not and will not conflict with, result in any violation
of or constitute any default under any provision of its Organic Documents or the
Organic Documents of any of its Subsidiaries or any material agreement or other
document binding upon or applicable to it or any of its Subsidiaries (or any of
their respective properties) or any material law or governmental regulation or
court decree or order applicable to it or any of its Subsidiaries, and will not
result in or require the creation or imposition of any Lien on any of its
properties or the properties of any of its Subsidiaries pursuant to the
provisions of any agreement binding upon or applicable to it or any of its
Subsidiaries.
3.2. VALIDITY. This Amendment has been duly executed and delivered by
Borrower, and this Amendment and the Credit Agreement (as amended hereby) are
legal, valid and binding obligations of Borrower, enforceable against Borrower
in accordance with their respective terms subject, as to enforcement only, to
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforceability of the rights of creditors generally and by general principles of
equity (regardless of whether enforcement is sought in a proceeding at equity or
law).
3.3 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. After giving effect to
the Amendment as set forth herein, (A) no Event of Default or Default has
occurred and is continuing and (B) the representations and warranties contained
in Article VII of the Credit Agreement are true and correct, except to the
extent that such representations and warranties (a) solely relate to an earlier
date or (b) are changed by circumstances permitted by the Credit Agreement.
SECTION 4. CONDITIONS PRECEDENT. The amendments to the Credit Agreement
set forth in Section 2 of this Amendment shall become effective as follows:
4.1. CONDITIONS. The amendments contained in this Amendment shall
become effective on such date when all of the following conditions precedent
shall have been satisfied:
(a) RECEIPT OF DOCUMENTS. Agent shall have received all of the
following, each in form and substance satisfactory to Agent and
Lenders:
(i) AMENDMENT. A counterpart original of this
Amendment duly executed by Borrower;
(ii) RESOLUTIONS, ETC. A certificate of the secretary
or an assistant secretary of Borrower dated the date of the
execution of this Amendment or such other date as shall be
acceptable to Agent;
(iii) AMENDMENT FEE. Evidence of payment from the
Borrower to the Agent of the amendment fee for the account of
each Lender, such fee to be equal to 0.05% of the amount of
such Lender's Commitment (as of the date of this Amendment,
after giving effect hereto) and to be distributed by the Agent
to each Lender upon the effectiveness of this Amendment; and
-3-
4
(iv) OTHER. Such other documents as Agent or Lenders
may reasonably request.
(b) NO DEFAULT. No Event of Default or Default shall have
occurred and be continuing, after giving effect to this Amendment.
SECTION 5. MISCELLANEOUS.
5.1. DOCUMENTS REMAIN IN EFFECT. Except as amended and modified by this
Amendment, the Credit Agreement and the other Credit Documents, including but
not limited to the Security Agreement, remain in full force and effect and
Borrower hereby ratifies, adopts and confirms its representations, warranties,
agreements and covenants contained in, and obligations and liabilities under,
the Credit Agreement and the other Credit Documents, including but not limited
to the Security Agreement.
5.2. REFERENCE TO CREDIT AGREEMENT. On and after the Effective Date,
each reference in the Credit Agreement to "this Agreement," "hereunder,"
"herein" or words of like import, and each reference to the "Credit Agreement"
in any Credit Document, or other agreements, documents or other instruments
executed and delivered pursuant to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended herein.
5.3. HEADINGS. Headings used in this Amendment are for convenience of
reference only, and shall not affect the construction of this Amendment.
5.4. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when executed and delivered, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same Amendment. One or more executed counterparts of this Amendment or any
document or instrument related hereto may be delivered by telecopier, with the
intention that they shall have the same effect as an original executed
counterpart hereof or thereof. Any party hereto delivering an executed
counterpart of this Amendment or any related document or instrument by
telecopier shall promptly provide an original of such counterpart to Agent.
5.5. EXPENSES. Borrower agrees to pay on demand all costs and expenses
of Agent (including reasonable fees, charges and disbursements of Agent's
attorneys) in connection with the preparation, negotiation, execution, delivery
and administration of this Amendment and the IRB Letter of Credit and all other
instruments or documents provided for herein or delivered or to be delivered
hereunder or in connection herewith. In addition, Borrower agrees to pay, and
save Agent and Lenders harmless from all liability for, any stamp or other taxes
which may be payable in connection with the execution or delivery of this
Amendment, the borrowings under the Credit Agreement, and the execution and
delivery of any instruments or documents provided for herein or delivered or to
be delivered hereunder or in connection herewith. All obligations provided in
this Section 5.5 shall survive any termination of this Amendment or the Credit
Agreement.
5.6. GOVERNING LAW. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS
-4-
5
WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW. Wherever possible each
provision of this Amendment shall be interpreted in such manner as to be
effective and valid under applicable laws, but if any provision of this
Amendment shall be prohibited by or invalid under such laws, such provisions
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Amendment.
5.7. SUCCESSORS. This Amendment shall be binding upon Borrower,
Lenders, Agent and their respective permitted successors and assigns, and shall
inure to the benefit of Borrower, Lenders, Agent and their respective permitted
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
EASCO CORPORATION
By: _____________________________
Title: __________________________
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
AS AGENT
By: _____________________________
Title: __________________________
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, AS LENDER
By: _____________________________
Title: __________________________
PNC BANK, NATIONAL
ASSOCIATION
By: _____________________________
Title: __________________________
NATIONAL CITY BANK
By: _____________________________
Title: __________________________
-5-
