FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Amended and Restated Credit Agreement (the
"AMENDMENT") dated as of October 7, 1998 among Atchison Casting Corporation
(the "BORROWER"), the Banks, and Harris Trust and Savings Bank, as Agent;
W I T N E S S E T H:
WHEREAS, the Borrower, Guarantors, Banks and Harris Trust and Savings
Bank, as Agent, have heretofore executed and delivered an Amended and
Restated Credit Agreement dated as of April 3, 1998 (the "CREDIT AGREEMENT");
and
WHEREAS, the parties hereto desire to amend the Credit Agreement as
provided herein;
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree that
the Credit Agreement shall be and hereby is amended as follows:
1. The definition of "EUROCURRENCY MARGIN" appearing in Section 1.3(b)
of the Credit Agreement is hereby amended by deleting the phrase "1.00% PER
ANNUM" appearing in clause (A) thereof and inserting in its place the phrase
"1.125% PER ANNUM."
2. A new Section 1.14 to the Credit Agreement is hereby amended as
follows:
SECTION 1.14. INCREASE IN COMMITMENTS. Prior to the Termination
Date, the Borrower shall have the right to increase the
Commitments up to an additional $30,000,000 (in a minimum amount
of $5,000,000 and integral multiples of $1,000,000 in excess
thereof) on a PRO RATA basis for each of the Banks in accordance
with the amount of their Commitment upon one Business Day's prior
written notice to the Agent PROVIDED THAT: (i) the Borrower may
exercise its right to increase the Commitments pursuant to this
Section 1.14 only one time, (ii) no Default or Event of Default
shall have occurred and be continuing on the date of such
increase or would result from such increase, (iii) on the date of
such increase the Borrower shall have repaid in full the
outstanding Term Loans from the proceeds of the issuance of
Subordinated Debt, and (iv) the increase in Commitments to become
effective on such date shall be in an amount no greater than the
aggregate principal amount of the Term Loans repaid on such date.
Upon the satisfaction of the foregoing provisions, the Commitment
of each Bank shall, without any further action on the part of the
Borrower or any Bank, be deemed amended to reflect the increase
as provided in this Section 1.14.
3. Section 2.1(a) of the Credit Agreement is hereby amended by
deleting clause (i) thereof in its entirety and inserting in its place the
following: "(i) PRIOR TO THE ISSUANCE OF SUBORDINATED DEBT BY THE BORROWER,
0.250% PER ANNUM FOR EACH DAY LEVEL I STATUS EXISTS AND
FROM AND AFTER THE DATE ON WHICH THE BORROWER ISSUES ANY SUBORDINATED DEBT
0.375% PER ANNUM FOR EACH DAY LEVEL I STATUS EXISTS."
4. The definition of "RESTRICTED PAYMENT" contained in Section 4 of
the Credit Agreement is hereby amended in its entirety and as so amended
shall read as follows:
"RESTRICTED PAYMENT" means any payment or distribution or the
incurrence of any liability to make any payment or distribution,
in cash, property or other assets (other than shares of common
stock of the Borrower) upon or in respect of any share of any
class of capital stock of the Borrower or any warrants, rights or
options evidencing a right to purchase or acquire any securities
of the Borrower, including, without limiting the generality of
the foregoing, (i) payments or distributions as dividends and
(ii) Stock Repurchases.
5. Section 4 of the Credit Agreement is hereby further amended by
inserting in proper alphabetical order the new defined term "STOCK
REPURCHASES" as follows:
"STOCK REPURCHASES" means payments or distributions for the
purpose of purchasing, acquiring, retiring or redeeming any such
shares of stock (or any warrants, rights or options to purchase
or acquire any such securities) or the making of any other
distribution in respect of any such shares of stock (or any
warrants, rights or options evidencing a right to purchase or
acquire any such securities).
6. Section 7.19 of the Credit Agreement is hereby amended in its
entirety and as so amended shall read as follows:
SECTION 7.19. RESTRICTED PAYMENTS; RESTRICTED INVESTMENTS. The
Borrower will not, directly or indirectly (through a Subsidiary or
otherwise), declare, order, pay, distribute, make, or set apart any
sum or property for any Restricted Payment, and the Borrower will not
and will not permit any of its Subsidiaries to make or become
obligated to make any Restricted Investment unless, both at the time
of and immediately after effect has been given to such proposed
action:
(a) no Default or Event of Default shall have
occurred and be continuing; and
(b) the aggregate amount of
(i) all sums and property included in all Restricted
Payments directly or indirectly declared, ordered, paid,
made or set apart by the Borrower or any Subsidiary during
the period from and including March 31, 1994 to and
including the date of such proposed action (the "COMPUTATION
PERIOD"), plus
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(ii) the aggregate amount of all Restricted
Investments (at original cost) made during the Computation
Period (less any net return of capital through sale or other
liquidation thereof or other return of capital thereon) and
all commitments for Restricted Investments made by the
Borrower or any of its Subsidiaries outstanding on such date
shall not exceed the sum of (x) $8,000,000, PLUS (y) 50% of
Consolidated Net Income for the Computation Period (or minus
100% of Consolidated Net Income in the case of a deficit)
PLUS (z) the net cash proceeds received by the Borrower from
the issuance or sale during the Computation Period of shares
of its capital stock (other than any mandatorily redeemable
preferred stock); and, in any event, the aggregate amount of
Restricted Payments made during any fiscal year shall not
exceed 25% of Consolidated Net Income for the immediately
preceding fiscal year.
Notwithstanding anything in this Section 7.19 to the
contrary, Restricted Payments under this Section 7.19 shall
not include up to $24,000,000 in aggregate principal amount
of Stock Repurchases by the Borrower PROVIDED THAT (i) no
Default or Event of Default shall have occurred and be
continuing or would result from such Stock Repurchase; and
(ii) Stock Repurchases in excess of $10,000,000 in the
aggregate in any one fiscal year may occur only if after
giving effect to such Stock Repurchase the Borrower shall,
and shall demonstrate in writing to the Agent that it shall,
(i) maintain a level of performance at no less than 110% of
that required by Sections 7.15(a) and 7.15(e) and
(ii) maintain a level of performance at no greater than 90%
of that required by Sections 7.15(c), 7.15(d) and 7.15(f).
For all purposes of this Section 7.19, the amount involved
in any Restricted Payment directly or indirectly declared,
ordered, paid, distributed, made or set apart in property,
and the amount of any Restricted Investment made through the
transfer of property, shall be deemed to be the greater of
(1) the fair value of such property (as determined in good
faith by the Board of Directors) and (2) the net book value
thereof on the books of the Borrower or any of its
Subsidiaries (as determined in accordance with GAAP), in
each case as determined on the date such Restricted Payment
is declared, ordered, paid, distributed, made or set apart
or the date such Restricted Investment is made or committed
to be made, as the case may be.
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The Borrower will not pay any dividend which it has not
declared nor will it declare any dividend (other than
dividends payable solely in shares of its common stock) on
any shares of any class of its capital stock which is
payable more than 60 days after the date of declaration
thereof.
7. The Borrower represents and warrants to each Bank and the Agent
that (a) each of the representations and warranties set forth in Section 5 of
the Credit Agreement is true and correct on and as of the date of this
Amendment as if made on and as of the date hereof and as if each reference
therein to the Credit Agreement referred to the Credit Agreement as amended
hereby; (b) no Default and no Event of Default has occurred and is
continuing; and (c) without limiting the effect of the foregoing, the
Borrower's execution, delivery and performance of this Amendment have been
duly authorized, and this Amendment has been executed and delivered by duly
authorized officers of the Borrower.
8. This Amendment shall become effective upon satisfaction of the
following conditions precedent:
(i) the Borrower, the Banks, and the Agent shall have executed and
delivered this Amendment and the Guarantors shall have executed the consent
attached hereto; and
(ii) receipt by the Agent of the favorable written opinion of
Blackwell Sanders Peper Martin LLP, legal counsel to the Borrower, in form
and substance satisfactory to the Agent.
This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterpart signature pages, each of
which when so executed shall be an original but all of which shall constitute
one and the same instrument. Except as specifically amended and modified
hereby, all of the terms and conditions of the Credit Agreement and the other
Credit Documents shall remain unchanged and in full force and effect. All
references to the Credit Agreement in any document shall be deemed to be
references to the Credit Agreement as amended hereby. All capitalized terms
used herein without definition shall have the same meaning herein as they
have in the Credit Agreement. This Amendment shall be construed and governed
by and in accordance with the internal laws of the State of Illinois.
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Dated as of the date first above written.
ATCHISON CASTING CORPORATION
By: /s/ Kevin T. McDermed
Title: V.P. & Treasurer
HARRIS TRUST AND SAVINGS BANK, in its
individual capacity as a Bank and as
Agent
By: /s/ Len E. Meyer
Title: Vice President
COMMERCE BANK, N.A.
By: /s/ Jeffrey R. Gray
Title: Vice President
MERCANTILE BANK
By: /s/ Susan D. Cott
Title:
KEY BANK NATIONAL ASSOCIATION
By: /s/ Sharon F. Weinstein
Title: Vice President
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COMERICA BANK
By: /s/ Jeffrey E. Peck
Title: Vice President
HIBERNIA NATIONAL BANK
By: Troy J. Villafarro
Title: Senior Vice President
NATIONAL WESTMINSTER BANK PLC
Nassau Branch
By: /s/ J. Brett
Title: Senior Manager
New York Branch
By: /s/ J. Brett
Title: Senior Manager
NORWEST BANK MINNESOTA, N.A.
By: /s/ R. Duncan Sinclair
Title: Vice President
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