AMENDMENT No. 2, dated as of
December 31, 1996 (this "Amendment"), to the
Credit Agreement dated as of August 23, 1995
(the "Credit Agreement"), as amended by
Amendment No. 1 thereto dated as of December
31, 1995, among Johnstown America
Industries, Inc., a Delaware corporation
(the "Borrower"), the Lenders (as defined in
the Credit Agreement), The Chase Manhattan
Bank, a New York banking corporation
formerly known as Chemical Bank, as
swingline lender (in such capacity, the
"Swingline Lender"), as administrative agent
(in such capacity, the "Adfminmistrative
Agent") and as collateral agent (in such
capacity, the "Collateral Agent") for the
Lenders, The First National Bank of Boston
and The First National Bank of Chicago, as
co0agents (in such capacity, the
"Co-Agents"), and The Chase Manhattan Bank
Delaware, a Delaware banking corporation
formerly known as Chemical Bank Delaware, as
Issuing Bank (as defined in the Credit
Agreement).
A. Pursuant to the Credit Agreement, the Lenders, the Swingline
Lender and the Issuing Bank have extended credit to the Borrower, and have
agreed to extend credit to the Borrower, in each case pursuant to the terms and
subject to the conditions set forth therein.
B. The Borrower has requested that certain provisions of the
Credit Agreement be amended as set forth herein.
C. The Required Lenders are willing to amend the Credit
Agreement, pursuant to the terms and subject to the conditions set forth herein.
D. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment to Section 6.10 of the Credit Agreement.
Section 6.10 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
"SECTION 6.10. Total Debt Ratio. Permit the ratio of (i)
Total Debt as of any date set forth below, to (ii) Consolidated
EBITDA for the period of four consecutive fiscal quarters ending
on such date, to be in excess of the ratio set forth below
opposite such date:
Date Ratio
December 31, 1996 5.75 to 1
March 31, 1997 5.75 to 1
June 30, 1997 5.75 to 1
September 30, 1997 5.75 to 1
December 31, 1997 5.00 to 1
March 31, 1998 5.00 to 1
June 30, 1998 3.00 to 1
September 30, 1998 3.00 to 1
December 31, 1998 3.00 to 1
March 31, 1999 and thereafter 2.50 to 1"
SECTION 2. Amendment to Section 6.11 of the Credit Agreement.
Section 6.11 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
SECTION 6.11. Interest Coverage Ratio. Permit the ratio of
(i) Consolidated EBITDA minus Consolidated Capital Expenditures
to (ii) Consolidated Interest Expense for any period of four
consecutive fiscal quarters ending on any date set forth below to
be less than the ratio set forth below opposite such date:
Date Ratio
December 31, 1996 1.30 to 1
March 31, 1997 1.30 to 1
June 30, 1997 1.30 to 1
September 30, 1997 1.30 to 1
December 31, 1997 1.50 to 1
March 31, 1998 2.50 to 1
June 30, 1998 2.50 to 1
September 30, 1998 2.50 to 1
December 31, 1998 2.50 to 1
March 31, 1999 and thereafter 3.00 to 1"
SECTION 3. Amendment to Section 6.12 of the Credit Agreement.
Section 6.12 of the Credit Agreement is hereby amended and restated in its
entirely as follows:
"SECTION 6.12. Net Worth. Permit Consolidated Net Worth on
(a) December 31, 1996, to be less than $57,500,000, or (b) on the
last day of any fiscal quarter ending after December 31, 1996, to
be less than the sum of (i) $57,500,000 plus (ii) 50% of the
cumulative amount of positive Consolidated Net Income for each
fiscal quarter after December 31, 1996."
SECTION 4. Representations and Warranties. The Borrower
represents and warrants to each other party hereto that, after giving effect to
this Amendment, (a) the representations and warranties set forth in Atrticle
III of the Credit Agreement are true and correct in all material respects on and
as of the date hereof with the same effect as though made on and as of the date
hereof, except to the extent such representations and warranties expressly
relate to an earlier date and (b) no Default or Event of Default has occurred
and is continuing.
SECTION 5. Conditions to Effectiveness. This Amendment shall
become effective as of the date hereof on the date that the Administrative
Agent shall have received counterparts of this Amendment which, when taken
together, bear the signatures of the Borrower and the Required Lenders.
SECTION 6. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not be implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Swingline Lender, the Issuing Bank, the Collateral Agent or the
Administrative Agent under the Credit Agreement or any other Loan Document, and
shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed in
all respects and shall cintinue in full force and effect. Nothing herein shall
be deemed to entitle the Borrower to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document in similar or different circumstances. The Amendment shall apply and be
effective only with respect to the provsions fo the Credit Agreement
specifically referred to herein.
SECTION 7. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separte counterparts,
each of which when so executed and delivered shall be deemed an origianl, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 8. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 9. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
JOHNSTOWN AMERICA INDUSTRIES, INC.,
by /s/ Xxxxx X.Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President, Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent, Collateral
Agent and Swingline Lender,
by /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
individually and as Co-Agent,
by /s/ Xxxxxxx X. McSwenney
-------------------------------
Name: Xxxxxxx X. McSwenney
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Co-Agent,
by /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
THE BANK OF NEW YORK,
by /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
by /s/ F.C.H. Xxxxx
-------------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager Bank Operations
CANADIAN IMPERIAL BANK OF
COMMERCE, ATLANTA AGENCY,
by /s/ Xxxxx X. X'Xxxxxxxx
-------------------------------
Name: Xxxxx X. X'Xxxxxxxx
Title: Authorized Signatory
CAISSE NATIONALE DE CREDIT AGRICOLE,
by /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
CREDIT LYONNAIS CHICAGO BRANCH,
by /s/ Xxxx Xxx Xxxxx
-------------------------------
Name: Xxxx Xxx Xxxxx
Title: Vice President & Group Head
CREDIT ANSTALT CORPORATE FINANCE,
INC.
by /s/ Xxxxxxxxx XxxXxxxxx
-------------------------------
Name: Xxxxxxxxx XxxXxxxxx
Title: Senior Associate
FIRST SOURCE FINANCIAL LLP,
by FIRST SOURCE FINANCIAL, INC.,
by /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
THE FUJI BANK, LIMITED, CHICAGO
BRANCH,
by /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Joint General Manager
JOHNSTOWN BANK & TRUST COMPANY,
by /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.,
by /s/ R. Xxxxxxx Xxxxxxxxx
-------------------------------
Name: R. Xxxxxxx Xxxxxxxxx
Title: Authorized Signatory
THE MITSUBISHI TRUST AND BANKING
CORPORATION,
by
Name:
Title:
NATIONAL BANK OF CANADA,
by /s/ X.X. Xxxxxx Xx.
-------------------------------
Name: X.X. Xxxxxx Xx.
Title: Vice President REgional Manager
NBD BANK,
by /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE NIPPON CREDIT BANK, LTD., NEW
YORK BRANCH,
by /s/ Xxxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Senior Manager
THE NORTHERN TRUST COMPANY,
by /s/ G. Xxxxxxx Xxxxxxx
-------------------------------
Name: G. Xxxxxxx Xxxxxxx
Title: Vice President
PRIME INCOME TRUST,
by /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
THE SUMITOMO TRUST AND BANKING CO.,
LTD.,
by /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
UNION BANK,
by /s/ Xxxxxxx X. XxXxxx
-------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Vice President
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
by /s/ Xxxxx X. Good
-------------------------------
Name: Xxxxx X. Good
Title: Vice President
THE YASUDA TRUST & BANKING
COMPANY, LTD., CHICAGO BRANCH,
by /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx
Title: Deputy General Manager
STRATA FUNDING LTD.,
by /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
RESTRUCTURED OBLIGATIONS BACKED BY
SENIOR ASSETS B.V.,
by ABN TRUSTCOMPANY
(NEDERLAND) B.V., its Managing Director
by /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXXX XXXXX PRIME RATE PORTFOLIO,
by XXXXXXX XXXXX ASSET
MANAGEMENT, L.P., as Investment Advisor
by /s/ R. Xxxxxxx Xxxxxxxxx
-------------------------------
Name: R. Xxxxxxx Xxxxxxxxx
Title: Authorized Signatory
CERES FINANCE LTD.,
by /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
KEYPORT LIFE INSURANCE COMPANY,
by /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
AERIES FINANCE LTD.,
by /s/ Xxxxxx Xxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title: Director
