FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT ("Amendment
Agreement"), dated as of this 29th day of August, 1997, is by and
among FIRST UNION NATIONAL BANK, a national banking association with
offices located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000 (the "Bank") and XXXXXXX DE, INC. (the "Company"), XXXXXXX,
INC. ("MI"), SAFEWAY CHEMICAL TRANSPORTATION, INC. ("SCI"), BRITE-SOL
SERVICES, INC. ("BSS") (the Company, MI, SCI and BSS are herein
sometimes referred to collectively as the "Original" Borrower), and
XXXXXXX LEASING CORPORATION) hereinafter sometimes referred to as the
"New Borrower"). The Original Borrower and the New Borrower shall be
from time to time referred to herein as the "Borrower".
Background
A. The Bank and the Original Borrower entered into that
certain Credit Agreement, dated as of May 22, 1996 (together with all
amendments and modifications thereto, including, without limitation,
the 1997 Letter as hereinafter defined, the "Loan Agreement")
pursuant to which the Bank agreed to make available to the Original
Borrower a revolving credit facility in the maximum amount of
$12,000,000.00 to be outstanding at any time in the form of direct
advances or, for an amount not to exceed $4,000,000.00 of the
Revolving Commitment (as defined in the Loan Agreement), letters of
credit as more fully provided in the Loan Agreement.
B. In connection with the Loan Agreement and in order to
evidence the Revolving Loan, the Original Borrower executed and
delivered to the Bank that certain Revolving Credit Note, dated May
22, 1996 (together with all amendments and modifications thereto, the
"Note"), in favor of the Bank in the original principal amount of
$12,000,000.00 or so much thereof as from time to time shall have
been advanced by the Bank to the Original Borrower pursuant to the
Loan Agreement.
C. On or about March 28, 1997, in a letter to Bank the
Original Borrower requested that the Bank extend the Revolving
Termination Date under the Loan Agreement to March 31, 1998 (the
"1997 Letter"), and the Bank agreed to the Original Borrower's
request.
D. In connection with the Loan Agreement and the Note and in
order to provide for pari passu treatment of its obligations
thereunder with certain other of its obligations, the Original
Borrower, the Bank, and Bank of America Illinois, now through
succession by merger Bank of America National Trust and Savings
Association ("Bank of America") entered into that certain Master
Credit Agreement dated May 22, 1996 (together with all amendments and
modifications thereto, the "Master Credit Agreement").
E. The Loan Agreement, the Note, the Master Credit Agreement,
the L/C Related Documents (as defined in the Loan Agreement) and all
of the documents, instruments and agreements executed and delivered
in connection therewith, together with all amendments and
modifications thereto, shall be referred to hereinafter as the "Loan
Documents".
F. The Original Borrower and the New Borrower have requested
that Bank permit the New Borrower be added as a joint and several
obligor with the right to borrow and otherwise obtain credit under
the Loan Agreement, the L/C Related Documents and the other Loan
Documents and to assume, without the release of the Original Borrower
therefore, joint and several obligation of any liabilities on the
date hereof outstanding under the Loan Documents, and the Bank is
willing to do so on the terms of the Loan Documents as herein after
amended.
NOW THEREFORE, incorporating the foregoing Background herein by
reference and for other good and valuable consideration, the receipt
and legal sufficiency of which is hereby acknowledged, and intending
to be legally bound hereby, the parties agree as follows:
1. Defined Terms. Terms used herein which are capitalized but
not defined shall have the meanings ascribed to such terms in the
Loan Agreement.
2. Addition of New Borrower. The Original Borrower hereby
assigns to the New Borrower an undivided interest in all of the
rights and obligations of the Original Borrower under the Loan
Documents and the Bank consents to such assignment and hereby
acknowledges the New Borrower as a Borrower to the Loan Agreement,
the Note, the L/C Related Documents and the other Loan Documents, and
each Borrower hereby agrees and affirms that it is jointly and
severally liable for all of the obligations presently, and in the
future which may be, outstanding under the Loan Documents as a direct
and primary obligor and not as an accommodation party, without
defense, set off, claim, or counter claim. Outstanding obligations
on the date hereof are confirmed to be:
Revolving Loan Principal - $11,800,000.00
Accrued and Unpaid Interest - $135,038.36
Letters of Credit Face Amount $00.00
Unpaid Fees $00.00
3. Amendments to the Loan Agreement.
(a) The definition of "Revolving Commitment" as set forth
in Article I of the Loan Agreement shall be amended in its entirety
as follows:
"Revolving Commitment" means $16,000,000.00, provided, however,
that the aggregate outstandings to both Banks under the Master Credit
Agreement shall not at any time exceed availability under Borrowing
Base.
(b) The definition of "Revolving Termination Date" as set
forth in Article I shall be amended in its entirety as follows:
"Revolving Termination Date" means the earlier to occur of:
(a) March 31, 1998; and
(b) the date on which the Revolving Commitment terminates
in accordance with the provisions of this Agreement.
(c) The definition of "Termination Date" as set forth in
Article I shall be amended in its entirety as follows:
"Termination Date" means the earlier of four years from the
Revolving Termination Date and (b) the date on which the Commitment
terminates in accordance with the provisions of this Agreement.
4. Conditions Precedent. The effectiveness of this Amendment
Agreement and the Bank's obligations hereunder are conditioned upon
the satisfaction of the following conditions precedent to the
satisfaction of the Bank and its counsel:
(a) The Borrower shall have paid to the Bank the costs,
fees and expenses incurred by the Bank in the preparation of this
Amendment Agreement and the documents instruments and agreements
executed in connection herewith and incidental hereto.
(b) The Borrower shall have duly executed and delivered to
the Bank this Amendment Agreement.
(c) The Borrower shall have duly executed and delivered to
the Bank an Amended and Restated Revolving Credit Note in the form of
Exhibit A hereto.
(d) The Borrower and Bank of America shall have duly
executed and delivered to the Bank the Third Amendment to the Master
Credit Agreement in form and content satisfactory to the Bank.
(e) All proceedings required to be taken by the Borrower
in connection with the transactions contemplated by this Amendment
Agreement shall be satisfactory in form and substance to the Bank and
its counsel, and the Bank shall have received all such counterpart
originals or certified or other copies of such documents as the Bank
may reasonably request.
(f) The Borrower shall have executed and delivered to the
Bank such other documents, instruments and agreements as the Bank may
reasonably request, including:
(1) Certification from each Borrower's secretary
that the bylaws and certificate of incorporation delivered to Bank in
connection with this Amendment Agreement, or if applicable, in
connection with the May 22, 1996 closing, remain in full force and
effect without modification, amendment, or addition.
(2) Certificate from each Borrower's secretary
certifying that the resolutions of the Borrower's Board of Directors
authorizing the Borrower to enter into and perform its obligations
under the Loan Documents, as amended, and if applicable, to assume
all existing obligations thereunder, have been duly adopted by such
Board of Directors and are in full force and effect without
modification, amendment or addition.
(3) Opinion of counsel satisfactory to the Bank
from each Borrower's counsel in form and substance satisfactory to
the Bank covering such issues of law as the Bank believes necessary
or desirable.
(4) Current Good Standing Certificate for each
Borrower from the Secretary of State of the state of its organization
and each state in which the conduct of such Borrower's business or
the property that it owns requires that it be registered to do
business.
5. Representations and Warranties. In order to induce the
Bank to enter into this Amendment Agreement, the Borrower, and each
of them, hereby represents and warrants to the Bank as follows:
(a) The representations and warranties contained in the
Loan Documents are true and correct on and as of the date of this
Amendment Agreement.
(b) After giving effect to this Amendment Agreement, no
Event of Default will be in existence or will occur as a result of
giving effect hereto. No event has occurred which, with the passage
of time or the giving of notice, or both, will become an Event of
Default.
(c) The execution, delivery and performance of this
Amendment Agreement will not violate any provision of any law or
regulation or of any write or decree of any court or governmental
instrumentality, or Borrower's certificate or articles of
incorporation, by-laws, partnership agreement, or other similar
organizational documents.
(d) The Borrower has the power to execute, deliver and
perform this Amendment Agreement and each of the documents,
instruments and agreements to be executed and/or delivered in
connection herewith and has taken all necessary action to authorize
the execution, delivery and performance of this Amendment Agreement
and each of the documents, instruments and agreements executed and/or
delivered in connection herewith and the performance of the Loan
Documents as amended hereby.
(e) The execution, delivery and performance of this
Amendment Agreement and each of the documents, instruments and
agreements to be executed and/or delivered in connection herewith
does not require the consent of any other party, and the Loan
Documents, this Amendment Agreement and each of the documents,
instruments and agreements executed and/or delivered in connection
herewith constitute legal, valid and binding obligations of the
Borrower, enforceable in accordance with their respective terms,
subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditor's rights and
except as enforcement may be subject to general equitable principles.
6. Miscellaneous. Except as amended hereby, all of the terms,
covenants and conditions of the Loan Agreement, the Note, the Master
Credit Agreement, the L/C Related Documents and each of the other
Loan Documents are ratified, reaffirmed and confirmed and shall
continue in full force and effect as therein written and are not
intended to be re-enacted as of the above date, but rather to be
effective as of the original date of such documents. This Amendment
Agreement shall be binding upon the Borrower, the Bank and their
respective heirs, executors, administrators, successors and assigns,
and shall inure to the benefit of the Borrower, the Bank, and their
respective heirs, administrators, executors, successors and assigns.
The Amendment Agreement may be executed in any number of counterparts
and by the different parties on separate counterparts. Each such
counterpart shall be deemed to be an original, but all such
counterparts shall together constitute one and the same agreement.
This Amendment Agreement shall be deemed to have been executed and
delivered when the Bank has received counterparts hereof executed by
all parties listed on the signature page(s) hereto. No amendment of
this Amendment Agreement, and no waiver of nay one or more of the
provisions hereof shall be effective unless set forth in a writing
and signed by the parties hereto. This Amendment Agreement shall be
governed by and construed in accordance with the laws governing
construction and interpretation of the Loan Agreement. Nothing
contained herein or in any of the Loan Documents, nor any course of
dealings among the parties shall obligate the Bank to agree to extend
for any additional period of time the date upon which all amounts
under the Loan Documents shall be due and payable.
7. Judicial Proceedings. Each party to this Amendment
Agreement agrees that any suit, action or proceeding, whether claim
or counterclaim, brought or instituted by any party hereto or any
successor or assign of any party, on or with respect to this
Amendment Agreement, the documents, instruments and agreements
executed in connection herewith, the Loan Documents or the dealings
of the parties with respect hereto and thereto, shall be tried only
by a court and not by a jury. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRAIL BY JURY IN
ANY SUCH SUIT, ACTION OR PROCEEDING. Further, each party waives any
right it may have to claim or recover, in any such suit, action or
proceeding, any special, exemplary, punitive or consequential damages
or damages other than, or in addition to, actual damages. THE
BORROWER ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC AND
MATERIAL ASPECT OF THIS AMENDMENT AGREEMENT AND THAT THE BANK WOULD
NOT ENTER INTO THIS AMENDMENT AGREEMENT IF THE WAIVERS SET FORTH IN
THIS SECTION WERE NOT A PART OF THIS AMENDMENT AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed and delivered as of the day
and year first above written.
Xxxxxxx DE, Inc.
By:/s/ X. X. Xxxxxxxxxxx
Xxxxxxx, Inc.
By:/s/ X. X. Xxxxxxxxxxx
Safeway Chemical Transportation, Inc.
By:/s/ X. X. Xxxxxxxxxxx
Brite-Sol Services, Inc.
By:/s/ X. X. Xxxxxxxxxxx
Xxxxxxx Leasing Corporation
By:/s/ X. X. Xxxxxxxxxxx
First Union National Bank
By: /s/
AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$16,000,000.00 August 29, 1997
FOR VALUE RECEIVED, XXXXXXX DE, INC., XXXXXXX, INC., SAFEWAY CHEMICAL
TRANSPORTATION, INC., BRITE-SOL SERVICES, INC. (the "original
Borrower") and XXXXXXX LEASING CORPORATION (collectively, the
Original Borrower and Xxxxxxx Leasing Corporation shall be referred
to as the "Borrower"), hereby promise to pay to the order of FIRST
UNION NATIONAL BANK, a national banking association (the "Bank") on
March 31, 1998 the principal amount of SIXTEEN MILLION DOLLARS
($16,000,000.00) or, if less, the aggregate outstanding principal
amount of Revolving Loans extended under the Credit Agreement, dated
May 22, 1996 (together with all amendments and modifications thereto,
including, without limitation, the 1997 Letter and the First
Amendment to Credit Agreement dated the date hereof, the "Credit
Agreement"). This Revolving Credit Note is issued pursuant to the
terms of the Credit Agreement. Terms capitalized but not defined
herein shall have the meanings given to them respectively in the
Credit Agreement. Reference is made to the Credit Agreement for a
statement of the terms and conditions under which the Loan evidenced
hereby has been made, is secured, and may be prepaid or accelerated.
Until maturity (whether by acceleration or otherwise) interest
shall accrue on the outstanding principal balance hereof at the
applicable rate of interest plus the Applicable Margin, as selected
by the Borrower in accordance with the procedures and terms of the
Credit Agreement. Accrued interest shall be payable on each Interest
Payment Date as set forth in the Credit Agreement. The Applicable
Margin and/or interest rate may be increased while an Event of
Default exists or after acceleration in accordance with Section
2.09(c) of the Credit Agreement.
All amounts payable by the Borrower to the Bank hereunder shall
be paid to the Bank in accordance with the terms of the Credit
Agreement in immediately available funds.
The Borrower hereby waives the requirements of demand,
presentment, protest, notice of protest and dishonor and all other
demands or notices of any kind in connection with the delivery,
acceptance, performance, default, dishonor or enforcement of this
Note.
This Amended and Restated Revolving Credit Note (together with
all amendments and modifications thereto the "Revolving Credit Note")
amends and restates that certain Revolving Credit Note dated May 22,
1996 (the "Original Note"), and except as expressly set forth herein,
all of the terms, covenants, and conditions of the Original Note
remain in full force and effect. This Revolving Credit Note is given
as a modification of the obligations under the Original Note and is
not given in substitution therefore or extinguishment thereof and is
not intended to be a novation. To induce the Bank to permit the
addition of Xxxxxxx Leasing Corporation as a Borrower, each Borrower
confirms that it is jointly and severally liable hereunder as a
primary obligor and not as an accommodation party and represents and
warrants to the Bank that on the date hereof there are no defenses,
claims, set offs or counterclaims to payment of this Revolving Credit
Note.
The construction, interpretation and enforcement of this Note
shall be governed by the internal laws of the Commonwealth of
Pennsylvania.
IN WITNESS WHEREOF, and intending to be legally bound hereby,
each of the Borrower has caused this Note to be executed by its duly
authorized officer as of the day and year first above written.
