SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT ("Amendment
Agreement"), dated as of this 14th day of November, 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") (hereinafter the Company, MI, SCI, BSS and MLC
shall be referred to herein, individually and collectively as the
context requires, as the "Borrower").
Background
A. The Bank and the Company, MI, SCI, and BSS 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 Company, MI, SCI, and BSS jointly and severally 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 Company, MI, SCI, and BSS 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. 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 Company, MI,
SCI, and BSS, 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").
D. On or about March 28, 1997, in a letter to Bank the
Company, MI, SCI, and BSS 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 that request.
E. On or about August 29, 1997, pursuant to that certain First
Amendment to Credit Agreement (the "First Amendment"), the Company,
MI, SCI, and BSS requested, among things, increase the Revolving
Commitment to $16,000,000.00 and permit the MLC to 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 (as
defined in the Loan Agreement) and the other Loan Documents (as
defined below) and to assume, without the release of the Company, MI,
SCI, and BSS therefore, joint and several obligation of any
liabilities on the date thereof outstanding under the Loan Documents,
and the Bank agreed to such modifications.
F. The Loan Agreement, the Note, the Master Credit Agreement,
the L/C Related Documents and all of the documents, instruments,
agreements and amendments executed and delivered in connection
therewith, together with all amendments and modifications thereto,
shall be referred to hereinafter as the "Loan Documents".
G. The Borrower has now requested that the Bank temporarily
increase the Revolving Commitment by $3,000,000.00 from
$16,000,000.00 to $19,000,000.00 and the Bank is willing to do so the
terms and conditions hereinafter set forth.
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. 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 $19,000,000.00, provided, however,
that the aggregate outstandings to both Banks under the Master Credit
Agreement shall not at any time exceed availability under Borrowing
Base, and further provided that the increase in the Commitment by
$3,000,000.00 from $16,000,000.00 to $19,000,000.00 ("the Temporary
Revolving Commitment") shall be temporary and shall expire on March
31, 1998, at which time the Revolving Commitment shall again be
$16,000,000.00. The Temporary Revolving Commitment shall not be part
of the Term Commitment.
(b) The definition of "Revolving Credit Note" as set forth
in Article I shall be amended in its entirety as follows:
"Revolving Credit Note" means that certain Revolving Credit Note
described in Section 2.01 (a) hereof as now evidenced by that certain
Amended and Restated Revolving Credit Note dated August 29, 1997, as
further amended pursuant to Allonge to Amended and Restated Revolving
Credit Note dated the date of the Second Amendment to Credit
Agreement.
(c) Section 2.01 Amounts and Terms of Commitment., Subpart
(b) shall be deleted and amended in its entirety as
follows:
(b) The Term Credit. On the Revolving Termination Date, if
such date occurs as a result of subpart (a) of the definition of
Revolving Termination Date, the Bank agrees, on the terms and
conditions set forth herein, to convert the amount of Revolving Loans
to a Term Loan (a "Term Loan", the "Term Commitment") which shall
then amortize in equal monthly principal payments from the Revolving
Termination Date to the Termination Date. Amounts borrowed as Term
Loans which are repaid or prepaid by the Borrower may not be
reborrowed. The obligations of the Borrower to repay the outstanding
principal of the Term Loan and to pay accrued interest thereon shall
be evidenced by a promissory note, to be executed and delivered to
the Bank on or before the date of conversion in substantially the
form of the Term Note attached hereto as Exhibit E (the "Term Note").
Provided, however, in the event the Revolving Termination Date occurs
on or prior to March 31, 1998, the date the Temporary Revolving
Commitment expires, any Revolving Loans outstanding in excess of
$16,000,000.00 shall not be a part of this Term Commitment, but shall
be repaid in full on the Revolving Termination Date, without further
notice or demand.
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 the Allonge to Amended and Restated Revolving Credit Note
attached hereto as Exhibit A.
(d) The Borrower and Bank of America shall have duly
executed and delivered to the Bank any Amendment to the Master Credit
Agreement as deemed necessary by Bank 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.
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 creditors' 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/
