Exhibit 4.2
FIRST AMENDMENT
TO
AMENDED AND RESTATED
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is entered into as of November 2, 1995 among XXXXXXXX CORPORATION,
a Delaware corporation (the "Company"), various financial institutions
(collectively, the "Banks"), and BANK OF AMERICA ILLINOIS (formerly Continental
Bank N.A.), as agent for the Banks (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Agent and the Banks are parties to an Amended and
Restated Credit Agreement dated as of April 28, 1994 (the "Credit Agreement");
and
WHEREAS, the Company has requested that the Credit Agreement be amended in
certain respects.
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. On the Effective Date
(defined below):
2.1 Section 1.1 of the Credit Agreement shall be amended by having the
following definitions added thereto in their appropriate alphabetical positions:
"Note Agreement" means the Note Agreement dated as of October 15, 1995
among the Company and certain purchasers relating to the Senior Notes.
"Senior Notes" means the $10,000,000 7.16% senior unsecured promissory
notes of the Company due October 30, 2002 issued pursuant to the Note Agreement.
2.2 Section 10.7(b) of the Credit Agreement shall be amended and restated
in its entirety to read as follows:
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(b) Debt. Create, incur or assume any Funded Debt or Current Debt,
except
(i) Funded Debt under the Loan Documents,
(ii) Funded Debt evidenced by the Senior Notes,
(iii) Funded Debt secured by Liens permitted by the provisions
of clauses (iv), (v), (vi), (vii) and (ix) of Section 10.7(a),
(iv) Funded Debt of any Subsidiary to the Company or any
Subsidiary,
(v) Debt of the Company not otherwise permitted by this
Section 10.7(b) in an aggregate principal amount not to exceed $10,000,000 at
any one time outstanding, and
(v) Debt listed under the heading "Continuing Debt" on Exhibit
H;
2.3 Section 10.7(c) of the Credit Agreement shall be amended by (i)
deleting the word "or" following clause (vii) thereof, (ii) replacing the
semicolon at the end of clause (viii) thereof with a ", or" and (iii) adding the
following clause (ix):
(ix) a guarantee by Impact of the Senior Notes in the form of
the Subsidiary Guaranty attached as Exhibit B to the Note Agreement;
2.4 Clause (v) of Section 10.7(i) of the Credit Agreement shall be
amended by deleting the words "clause (v) or clause (vi)" where they appear and
inserting in lieu thereof the words "clauses (v), (vi) or (ix)".
2.5 Exhibit C to the Credit Agreement shall be amended by deleting
therefrom the reference to Rexcorp U.S. Inc.
SECTION 3. WAIVER.
On the Effective Date, the Banks shall waive, as of May 1, 1995, any Event
of Default arising from the Company's failure to comply with Section 10.7(b) of
the Credit Agreement by having issued for its benefit standby letters of credit
in an aggregate stated amount of $4,500,000.
SECTION 4. CONDITIONS PRECEDENT.
The amendments to the Credit Agreement set forth in Section 2 of this
Amendment and the waiver to the Credit Agreement set forth in Section 3 of this
Amendment shall become effective on such date (the "Effective Date") when the
following conditions precedent have been satisfied:
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4.1 Receipt of Documents. The Agent shall have received all of the
following, each duly executed and dated the date hereof, and each in a
sufficient number of signed counterparts to provide one to each Bank:
(a) Amendment. An original of this Amendment duly executed by the
Company and each Bank and an original of the consent attached to the foot hereof
executed by Impact.
(b) Certificate. A certificate, dated the Effective Date and signed
by a duly authorized representative of the Company, as to the matters set forth
in Section 4.2, in form and substance satisfactory to the Agent.
(c) Resolutions. A copy, certified by the secretary or an assistant
secretary of the Company, of resolutions of the Board of Directors of the
Company authorizing or ratifying the execution and delivery of this Amendment
and the borrowings under the Credit Agreement, as amended hereby.
(d) Incumbency and Signatures. A certificate of the secretary or an
assistant secretary of the Company certifying the names of the officer or
officers of the Company authorized to sign this Amendment, together with a
sample of the true signature of each such officer.
(e) Other. Such other documents as the Agent or any Bank may
reasonably request.
4.2 Warranties True and Absence of Defaults. (i) No Event of Default or
Unmatured Event of Default shall have occurred and shall be continuing as of the
Effective Date (after giving effect to this Amendment) and (ii) the warranties
set forth in the Credit Agreement and each other Loan Document shall be true and
correct in all material respects with the same effect as if made on the
Effective Date.
4.3 Prepayment of Term Loans. The Agent shall have received for the
account of each Bank a prepayment of 100% of the outstanding principal balance
of the Term Loans from the cash proceeds of the sale of the Company's 7.16%
senior unsecured promissory notes due October 30, 2002, which prepayment shall
comply with Section 6.2.2 of the Credit Agreement.
SECTION 5. MISCELLANEOUS.
5.1 Warranties True and Absence of Defaults. In order to induce the
Agent and the Banks to enter into this Amendment, the Company hereby warrants to
the Agent and the Banks that, as of the date hereof and the Effective Date:
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(a) The warranties set forth in Section 9 of the Credit Agreement and
in each other Loan Document are true and correct in all material respects with
the same effect as if made on the date hereof and the Effective Date (it being
understood that Rexcorp is no longer a Subsidiary of the Company).
(b) No Event of Default or Unmatured Event of Default exists as of
each such date.
5.2 Governing Law. This Amendment shall be a contract made under and
governed by the internal laws of the State of Illinois.
5.3 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 so executed and delivered, shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
5.4 References to Credit Agreement. Except as amended hereby, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. On and after the effectiveness hereof, each
reference in the Credit Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import, and each reference to the Credit Agreement in
any Note or other Loan Document, shall be deemed a reference to the Credit
Agreement, as amended hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
XXXXXXXX CORPORATION
By: Xxxxxxx X. Xxxxxx
--------------------------
Title: Senior Vice President
and Chief Financial
Officer
BANK OF AMERICA ILLINOIS,
as Agent
By: Xxxxx X. Xxxxxxxx
--------------------------
Title: Agency Management Services
Senior Agency Officer
BANK OF AMERICA ILLINOIS,
as a Bank
By: Xxxx X. Xxxxxxxxxx
--------------------------
Title: Senior Vice President
XXXXXX TRUST AND SAVINGS BANK
By: Xxxxx X. Xxxxxxxx
--------------------------
Title: Vice President
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The undersigned, Impact Industries, Inc., hereby acknowledges, consents and
agrees to the foregoing Amendment, and reaffirms that its obligations under the
Guaranty dated as of April 29, 1994 executed in favor of the Agent and the Banks
continue in full force and effect with respect to the Credit Agreement, as
amended by the foregoing Amendment.
IMPACT INDUSTRIES, INC.
By: Xxxxxxx Xxxxxx
--------------------------
Title: Vice President, Finance
Secretary and Treasurer
