(3) EXHIBIT (II) - FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT
(BORROWING BASE)
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (Borrowing Base) (this
"Amendment") dated effective as of May 2, 1996 (the "Effective Date"), is by and
among XXXXX America, Inc. d/b/a DAHER GOLDEN EAGLE, WORLD TRADE TRANSPORT OF
VIRGINIA, INC. and WTT CUSTOMS HOUSE BROKERAGE, INC. (each a "Borrower" and
hereinafter collectively the "Borrowers"), and TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, a national banking association whose principal office is located in
Houston, Texas (the "Bank").
PRELIMINARY STATEMENT
The Bank and the Borrowers have entered into a Credit Agreement (Borrowing
Base) dated as of December 1, 1995 (the "Credit Agreement"). The "Agreement", as
used in the Credit Agreement, shall also refer to the Credit Agreement as
amended by this Amendment. All capitalized terms defined in the Credit Agreement
and not otherwise defined herein shall have the same meanings herein as in the
Credit Agreement. The Bank and the Borrowers have agreed to amend the Credit
Agreement to the extent set forth herein, and in order to, among other things,
renew, modify and extend the Commitment.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the Bank and the Borrowers hereby agree as
follows:
SECTION 1. REVOLVING CREDIT NOTE Section 1.1.A of the Credit Agreement is
amended by substituting the following for the Section 1.1.A of the Credit
Agreement:
"Subject to the terms and conditions hereof, Bank agrees to make loans
("Revolving Loan" or "Revolving Loans") to any Borrower from time to time
before the Termination Date, not to exceed at any one time outstanding the
lesser of the Borrowing base or $1,000,000.00 (the "Commitment"). Each
Borrower has the right to borrow, repay and reborrow. Each Revolving Loan
must be at least $50,000.00 or the principal balance of the Revolving
Note, whichever is less. The Revolving Loans may only be used for
financing Borrowers" accounts receivable. Chapter 15 of the Texas Credit
Code will not apply to this Agreement, the Revolving Note or any Revolving
Loan. The Revolving Loans will be evidenced by, and will bear interest and
be payable as provided in, the promissory note of Borrowers dated the
Effective Date (together with any and all renewals, extensions,
modifications and replacements thereof and substitutions therefore, the
"REVOLVING NOTE") which is given in renewal, modification and extension of
that certain promissory note dated December 1, 1995 in the original
principal amount of $1,000,000.00 (including all prior notes of which said
note represents a renewal, extension, modification, increase,
substitution, rearrangement or replacement thereof, the "Renewed Note").
The parties hereto agree that there is as of the Effective Date an
outstanding principal balance of $0.00 under the Renewed Note and
$56,000.00 outstanding in Letters of Credit leaving a balance as of the
Effective Date of
$944,000.00 under the Commitment available for Revolving Loans subject to
the terms and conditions of this Agreement. The "Revolving Note" as used
in the Credit Agreement shall also refer to the "Revolving Note" as used
in this Amendment. "Termination Date" means the earlier of: (a) May 2,
1997; or (b) the date specified by Bank pursuant to "SECTION 6.1" hereof.
SECTION 2. The Credit Agreement is amended by adding a new Section 1.6 to
read as follows:
"CONFIRMATION OF SECURITY INTERESTS SECTION 1.6. Each Borrower confirms
and ratifies each of the liens, security interests and other interests
granted in each and all security agreements executed in connection with,
related to, or securing the Renewed Note as extending to and securing the
Loans and the Note including but not limited to each of those interests
and liens described in the following listed Security Agreements. Each
Borrower further agrees and acknowledges that the terms "secured
indebtedness" and "indebtedness secured hereby" as used in any security
agreement including any supplemental security agreements executed in
connection with or related to, or securing the Renewed Note, or any other
indebtedness of Borrower to Bank, including but not limited to the
following security agreements executed by Borrower and delivered to Bank:
Security Agreement - Accounts and General Intangibles executed as of
December 1, 1995; including any Supplemental Security Agreements
supplementing any of the foregoing, and any other security agreements
previously executed by Borrower and delivered to Bank and not released by
Bank and all security agreements executed as of the Effective Date (each
and all "Security Agreements") include, but are not limited to , each and
all indebtedness of all character and kind related to or evidenced by the
Renewed Note, the Pending Note, the Term Note and related to the Loan
Documents. The Notes are further secured by each of the Continuing
Guaranties executed as of December 1, 1995 by each of Golden Eagle Group,
Inc.; Golden Eagle International Forwarding, Inc.; Golden Eagle Customs
Brokers, Inc.; Bridgeport Shipping Lines, Inc.; Dacom Line, Inc. and
delivered to Bank."
SECTION 3. EXHIBIT A of the Credit Agreement is hereby amended by
replacing prior EXHIBIT A with the EXHIBIT A attached hereto and hereby
incorporated into this Amendment and the Credit Agreement for all purposes.
SECTION 4. EXHIBIT C of the Credit Agreement is hereby amended by
replacing prior EXHIBIT C with the EXHIBIT C attached hereto and hereby
incorporated into this Amendment and the Credit Agreement for all purposes.
SECTION 5. ANNEX I of the Credit Agreement is hereby amended by replacing
prior ANNEX I with the ANNEX I attached hereto and hereby incorporated into this
Amendment and the Credit Agreement for all purposes.
SECTION 6. The Borrowers hereby represent and warrant to the Bank that
after giving effect to the execution and delivery of this Amendment: (a) the
representations and warranties set forth in the Credit Agreement are true and
correct on the date hereof as though made on and as of such date; and (b) no
Event of Default, or event which with passage of time, the giving of notice or
both would become an Event of Default, has occurred and is continuing as of the
date hereof.
SECTION 7. This Amendment shall become effective as of the Effective Date
upon its execution and delivery by each of the parties named in the signature
lines below, and the "Agreement" as used in the Credit Agreement shall also
refer to the Credit Agreement as amended by this Amendment.
SECTION 8. The Borrowers further acknowledge that each of the other Loan
Documents is in all other respects ratified and confirmed, and all of the
rights, powers and privileges created thereby or thereunder are ratified,
extended, carried forward and remain in full force and effect except as the
Credit Agreement is amended by this Amendment.
SECTION 9. This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
SECTION 10. This Amendment shall be included within the definition of
"Loan Documents" as used in the Agreement.
SECTION 11. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND AS APPLICABLE, THE LAWS OF
THE UNITED STATES OF AMERICA.
THIS WRITTEN AMENDMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN
AGREEMENT" AS DEFINED IN SECTION 26.02 (A) OF THE TEXAS BUSINESS & COMMERCE
CODE, AND REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed effective as of the Effective Date.
BORROWERS: XXXXX AMERICA, INC.d/b/a DAHER GOLDEN EAGLE
BY: /s/ Xxxxxxx Xxxxxx
WORLD TRADE TRANSPORT OF VIRGINIA, INC.
BY: /s/ Xxxxxxx Xxxxxx
WTT CUSTOMS HOUSE BROKERAGE, INC.
BY: /s/ Xxxxxxx Xxxxxx
BANK: TEXAS COMMERCE BANK NATIONAL ASSOCIATION
BY: /s/ Xxxxxxxxx Xxxxxx
