FIRST AMENDMENT
to
CREDIT AGREEMENT
FIRST AMENDMENT dated as of December 16, 1998 (the
"Amendment") between XXXXXX INDUSTRIES, INC., a Delaware corporation (the
"Borrower"), and FLEET BANK, N.A., a national banking association (the "Bank")
to the Credit Agreement (as hereinafter defined). Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Credit
Agreement.
WHEREAS, the Bank and the Borrower are parties to a Credit
Agreement dated as of June 23, 1998, pursuant to which the Bank made loans to,
and established credit facilities for, the Borrower (as the same may be further
amended, modified or supplemented from time to time, the "Credit Agreement");
WHEREAS, the Borrower wishes to amend the Credit Agreement to
permit the Borrower to use loan proceeds to fund the acquisition of certain of
the assets of Streamline Industries, Inc., a ____________ corporation
("Streamline") by Xxxxxxxxxx, in the manner and on the terms and conditions set
forth below.
WHEREAS, the Borrower has requested that the Bank consent to
the amendments as herein provided and, subject to the terms and conditions
provided herein, the Bank is willing to agree to such amendments;
NOW, THEREFORE, the Bank and the Borrower agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) On and after the Amendment Effective Date (as
hereinafter defined), the Preliminary Statement in the Credit
Agreement is hereby amended by replacing it in its entirety
with the following:
"The Borrower has requested that the Lender Parties
lend to the Borrower up to $14,000,000 in order to finance the
acquisition of substantially all of the assets of Westwater
Enterprises, L.P., to finance the acquisition by Xxxxxxxxxx of
certain of the assets of Streamline Industries, Inc. (the
("Streamline Acquisition"), to use up to $10,000,000 toward
the redemption of $12,500,000 of Preferred Stock of the
Borrower, to pay transaction fees and expenses in connection
with the transactions contemplated hereby and to provide for
the short term working capital requirements of the Borrower.
The Lender Parties have indicated their willingness to agree
to lend such amounts on the terms and conditions of this
Agreement."
(b) On and after the Amendment Effective Date, the
definition of Acquisition Documents in Section 1.01 of the
Credit Agreement is hereby deleted in its entirety and the
following new definition inserted in lieu thereof:
"ACQUISITION DOCUMENTS" means all documents executed and
delivered in connection with the Acquisition, including
without limitation the Asset Purchase Agreement, to be
executed on a date not later than July 31, 1998 between the
Borrower or Westwater Inc. and Westwater and all documents
executed and delivered in connection with the Streamline
Acquisition, including, without limitation the Purchase and
Sale Agreement dated as of December __,1998 (the "Streamline
Acquisition Documents") each in form and substance
satisfactory to the Agent."
(c) On and after the Amendment Effective Date,
Section 2.15 of the Credit Agreement is hereby deleted in its
entirety and the following inserted in lieu thereof:
"SECTION 2.15. USE OF PROCEEDS. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use
such proceeds) solely (i) an amount not to exceed $3,000,000,
to partially fund the Acquisition, including the satisfaction
of certain Debt of Westwater; (ii) to use up to $10,000,000
toward the redemption of $12,500,000 of Preferred Stock of the
Borrower, it being understood that as of the Closing Date
Borrower will redeem shares of Preferred Stock of the Borrower
having an aggregate value of $12,500,000; (iii) to pay
transaction fees and expenses in connection with the
transactions contemplated hereby; (iv) an amount not to exceed
$2,500,000, to partially fund the Streamline Acquisition; and
(v) to provide for the short term working capital requirements
of the Borrower, Westwater, Inc. (after the occurrence of the
Acquisition) and Xxxxxxxxxx. Issuances of Letters of Credit
shall be available (and the Borrower agrees that it shall use
such Letters of Credit) solely for the benefit of foreign
suppliers of Inventory to the Borrower, Westwater Inc. (after
the occurrence of the Acquisition) and Xxxxxxxxxx ."
(d) Section 8.02 of the Credit Agreement is hereby
amended to provide that notices to the Bank shall be delivered
to Xxxx Xxxxxxx.
2. CONDITIONS PRECEDENT TO EXECUTION OF AMENDMENT. The
obligation of the Bank to execute and deliver this Amendment and to make any
Loan after the Amendment Effective Date under the Credit Agreement as amended
hereby is subject to the condition that on or before the Amendment Effective
Date the Bank shall have received each of the following documents and
instruments in form and substance satisfactory to the Bank and dated as of the
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Amendment Effective Date or other evidence of compliance with the following
conditions satisfactory to the Bank:
(a) The Amendment executed and delivered by an authorized
officer of the Borrower.
(b) the representations and warranties contained in each Loan
Document are correct on and as of the Amendment Effective
Date, before and after giving effect to such Borrowing or
issuance and to the application of the proceeds therefrom, as
though made on and as of such date other than any such
representations or warranties that, by their terms, refer to a
specific date other than the date of such Borrowing, in which
case as of such specific date;
(c) no event shall have occurred and be continuing, or would
result from such Borrowing or issuance or from the application
of the proceeds therefrom, that constitutes a Default;
(d) The Lenders shall be satisfied that the assets and
earnings of the Borrower immediately following the Streamline
Acquisition contemplated hereby will be sufficient to support
the Obligations of the Borrower under this Agreement and the
Notes, the Loan Documents and the Acquisition Documents and
the timely amortization of all Indebtedness and other
Obligations of the Borrower.
(e) The Streamline Acquisition shall have been consummated
strictly in accordance with the terms of the Acquisition
Documents, without any waiver or amendment of any term,
provision or condition set forth therein not consented to by
the Lenders and in compliance with all applicable laws.
(f) The Agent shall have received on or before the date of the
Borrowing, each of even date therewith (unless otherwise
specified), in form and substance satisfactory to the Lenders
(unless otherwise specified) and in sufficient copies for each
Lender and Agent and Lender's counsel and in the case of (i)
through (vi) below to the extent reasonably necessary to
evidence the Borrowing to fund the Streamline Acquisition, the
addition of any Guarantor and to perfect the first priority
security interest of the Lender Parties and Agent in the
assets of the Borrower and its Subsidiaries:
i. any Collateral Documents (including without
limitation any additional UCC-1 financing
statements and amendments to existing UCC-1
financing statements and assignments and
grants of security interests in patents,
trademarks and copyrights);
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ii. Amended schedules to the Credit Agreement
and Collateral Documents;
iii. the Blocked Account Letters and Lockbox
Agreements;
iv. Certified copies of the resolutions of the
Board of Directors of the Borrower approving
the Streamline Acquisition, all other
transactions contemplated thereby, and of
all documents evidencing other necessary
corporate action and governmental approvals,
if any, with respect to the Streamline
Acquisition and the Acquisition Documents
related thereto.
v. Original counterparts of the Streamline
Acquisition Documents, each duly and validly
executed by each party thereto.
vi. Such financial, business and other
information regarding the Streamline
Acquisition as the Lenders shall have
reasonably requested.
vii. A certificate, in substantially the form of
Exhibit I to the Credit Agreement, attesting
to the Solvency of the Borrower and its
Subsidiaries, taken as a whole, immediately
after giving effect to the Streamline
Acquisition from its president or vice
president and chief financial officer.
(g) The Streamline Acquisition shall occur by no later than
______________.
(h) An opinion of counsel to the Borrower in form and
substance satisfactory to the Agent as to such matters as the
Agent or its counsel may reasonably request, including without
limitation the due authorization, execution and delivery of
the Streamline Acquisition Documents and the Amendment and the
enforceability thereof.
3. FEES. The Borrower agrees to pay on or before the date
hereof, a fee in the amount of $5,000 to the Bank and all costs and expenses
incurred by the Bank (including, without limitation, the fees and disbursements
of counsel for the Bank) in connection with the preparation and execution of
this Amendment.
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4. REPRESENTATIONS AND WARRANTIES.
In order to induce the Bank to enter into this Amendment, the
Borrower represents and warrants to the Bank as follows:
viii. that no Default exists under the Credit
Agreement on the date hereof, both before
and after giving effect to this Amendment;
ix. repeats and reaffirms, on and as of the
Amendment Effective Date, each of the
representations, warranties and agreements
contained in Article IV of the Credit
Agreement after giving effect to this
Amendment;
x. the execution, delivery and performance by
the Borrower of the Amendment and the taking
by it of all actions contemplated thereby
are within the Borrower's corporate powers,
have been duly authorized by all necessary
corporate action and do not contravene (x)
the Borrower's charter or by-laws, or (y)
any law or any contractual restriction
binding on or affecting the Borrower;
xi. no authorization, approval or other action
by, and no notice to or filing with, any
governmental authority or regulatory body is
required for the due execution, delivery and
performance by the Borrower of the Amendment
or for the taking by it of any action
contemplated hereby or thereby to be taken
by it; and
xii. the Amendment constitutes the valid and
binding obligations of the Borrower,
enforceable against the Borrower in
accordance with its terms.
5. MISCELLANEOUS.
(a) This Amendment shall become effective on the
date (the "Amendment Effective Date") when the Borrower and the Bank shall have
signed a copy of this Amendment (whether the same or different counterpart) and
the Borrower shall have delivered the same to the Bank (including by way of
facsimile device).
(b) THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(c) The Borrower hereby irrevocably and
unconditionally:
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(i) submits for itself and its property
in any legal action or proceeding
relating to this Amendment, or for
recognition and enforcement of any
judgment in respect thereof, to the
nonexclusive general jurisdiction of
the State of New York, the courts of
the United States of America for the
Southern District of New York, and
appellate courts from any thereof;
(ii) consents that any such action or
proceeding may be brought in such
courts, and waives any objection
that it may now or hereafter have to
the venue of any such action or
proceeding in any such court or that
such action or proceeding was
brought in an inconvenient court and
agrees not to plead or claim the
same;
(iii) agrees that service of process in
any such action or proceeding may be
effected by mailing a copy thereof
by registered or certified mail (or
any substantially similar form of
mail), postage prepaid, to the
Borrower at its address set forth in
Section 8.02 of the Credit Agreement
or at such other address of which
the Bank has been notified pursuant
thereto;
(iv) agrees that nothing herein shall
affect the right to effect service
of process in any other manner
permitted by law or shall limit the
right to xxx in any other
jurisdiction; and
(v) waives trial by jury in any legal
action or proceeding referred to in
paragraphs (i) through (iv) of this
Section 5(c).
(e) This Amendment may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
(f) This Amendment is limited as specified and
shall not constitute a modification, acceptance or waiver of any other provision
of the Credit Agreement or any other Loan Document. Except as otherwise provided
herein, all terms and conditions of the Credit Agreement and every other Loan
Document, respectively, and all obligations of the Borrower and rights of the
Bank thereunder shall remain in full force and effect.
(g) This Amendment amends the terms of the
Credit Agreement and does and shall be deemed to form a part of, and shall be
construed in connection with and as part of, the Credit Agreement for any and
all purposes. Any reference to the Credit Agreement, following the execution and
delivery of this Amendment, shall be deemed a reference to such Credit Agreement
as hereby amended.
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IN WITNESS WHEREOF the parties hereto have executed this
Amendment as of the date first above written.
XXXXXX INDUSTRIES, INC.
By:
-------------------------------------
Name:
Title:
FLEET BANK, N.A., as Agent, Issuing Bank
and Lender
By: /s/ XXXX XXXXXXX
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
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