EXHIBIT 10.1.1
FIRST AMENDMENT TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
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February 20, 1997, is entered into by and among WEST MARINE, INC. (the
"Company"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for
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itself and the Banks (the "Agent"), and the several financial institutions party
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to the Credit Agreement (collectively, the "Banks").
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RECITALS
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A. The Company, Banks, and Agent are parties to a Credit Agreement dated
as of June 14, 1996 (the "Credit Agreement") pursuant to which the Agent and the
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Banks have extended certain credit facilities to the Company.
B. The Company has requested that the Banks agree to certain amendments of
the Credit Agreement.
C. The Banks are willing to amend the Credit Agreement, subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
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herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendments to Credit Agreement.
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a. Schedule 2.01 of the Credit Agreement shall be replaced with Revised
Schedule 2.01 attached to this Amendment.
3. Representations and Warranties. The Company hereby represents and
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warrants to the Agent and the Banks as follows:
a. No Default or Event of Default has occurred and is continuing.
b. The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any Person (including any Governmental Authority) in
order to be effective and enforceable. The Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligations of the Company,
enforceable against it in accordance with its respective terms, without defense,
counterclaim or offset.
c. All representations and warranties of the Company
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contained in the Credit Agreement are true and correct.
d. The Company is entering into this Amendment on the basis of its
own investigation and for its own reasons, without reliance upon the Agent and
the Banks or any other Person.
4. Effective Date. This Amendment will become effective as of February
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20, 1997 (the "Effective Date"), provided that each of the following conditions
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precedent is satisfied:
a. The Agent has received from the Company and each of the Banks a
duly executed original (or, if elected by the Agent, an executed facsimile copy)
of this Amendment, together with a duly executed Guarantor Acknowledgment and
Consent in the form attached hereto (the "Consent").
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b. The Agent has received from the Company and all guarantors a copy
of a resolution passed by the board of directors of such corporation, certified
by the Secretary or an Assistant Secretary of such corporation as being in full
force and effect on the date hereof, authorizing the execution, delivery and
performance of this Amendment or the Consent, as applicable.
5. Reservation of Rights. The Company acknowledges and agrees that the
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execution and delivery by the Agent and the Banks of this Amendment shall not be
deemed to create a course of dealing or otherwise obligate the Agent or the
Banks to forbear or execute similar amendments under the same or similar
circumstances in the future.
6. Miscellaneous.
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a. Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and effect
and all references therein to such Credit Agreement shall henceforth refer to
the Credit Agreement as amended by this Amendment. This Amendment shall be
deemed incorporated into, and a part of, the Credit Agreement.
b. This Amendment shall be binding upon and inure to the benefit of
the parties hereto and thereto and their respective successors and assigns. No
third party beneficiaries are intended in connection with this Amendment.
c. This Amendment shall be governed by and construed in accordance with
the law of the State of California.
d. This Amendment may be executed in any number of counterparts, each
of which shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an
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executed original or an executed original sent by facsimile transmission to be
followed promptly by mailing of a hard copy original, and that receipt by the
Agent of a facsimile transmitted document purportedly bearing the signature of a
Bank or the Company shall bind such Bank or the Company, respectively, with the
same force and effect as the delivery of a hard copy original. Any failure by
the Agent to receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile transmitted executed
original of such document of the party whose hard copy page was not received by
the Agent.
e. This Amendment, together with the Credit Agreement, contains the
entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein and therein. This Amendment supersedes all prior
drafts and communications with respect thereto. This Amendment may not be
amended except in accordance with the provisions of Section 11.01 of the Credit
Agreement.
f. If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
g. The Company covenants to pay to or reimburse the Agent and the
Banks, upon demand, for all costs and expenses (including allocated costs of in-
house counsel) incurred in connection with the development, preparation,
negotiation, execution and delivery of this Amendment, including without
limitation appraisal, audit, search and filing fees incurred in connection
therewith.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
WEST MARINE, INC.
By /s/ Xxxx X. Xxxx
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Typed Name Xxxx Xxxx
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Title CFO
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent
By /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Vice President
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
and an Issuing Bank
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Vice President
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION, as a Bank and an
Issuing Bank
By /s/ Xxx X. Xxxxxxxxxxxx
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Xxx X. Xxxxxxxxxxxx
Vice President
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REVISED SCHEDULE 2.01
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COMMITMENTS
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AND PRO RATA SHARES
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Pro Rata
Bank Commitment Share
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From February 20, 1997,
through and including June 30, 1997:
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Bank of America National
Trust and Savings
Association $35,000,000 50%
NationsBank of Texas,
National Association $35,000,000 50%
TOTAL $70,000,000 100%
On July 1, 1997, and thereafter:
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Bank of America National
Trust and Savings
Association $30,000,000 50%
NationsBank of Texas,
National Association $30,000,000 50%
TOTAL $60,000,000 100%
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GUARANTOR ACKNOWLEDGMENT
AND CONSENT
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The undersigned, each a guarantor or third party pledgor with respect
to the Company's obligations to the Agent and the Banks under the Credit
Agreement, hereby (i) acknowledge and consent to the execution, delivery and
performance by Company of the foregoing First Amendment to Credit Agreement (the
"Amendment"), and (ii) reaffirm and agree that the respective guaranty, third
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party pledge or security agreement to which the undersigned is party and all
other documents and agreements executed and delivered by the undersigned to the
Agent and the Banks in connection with the Credit Agreement are in full force
and effect, without defense, offset or counterclaim. (Capitalized terms used
herein have the meanings specified in the Amendment.)
WEST MARINE PRODUCTS, INC., a California
corporation
By /s/ X. Xxxx
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Typed Name Xxxx Xxxx
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Title CFO
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E&B MARINE INC., a Delaware corporation
By /s/ X. Xxxx
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Typed Name Xxxx Xxxx
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Title CFO
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E&B MARINE SUPPLY, INC., a Maryland
corporation
By /s/ X. Xxxx
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Typed Name Xxxx Xxxx
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Title CFO
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E&B MARINE SUPPLY, INC., a New Jersey
corporation
By /s/ X. Xxxx
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Typed Name Xxxx Xxxx
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Title CFO
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E&B MARINE SUPPLY (Florida), Inc., a
Delaware corporation
By /s/ X. Xxxx
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Typed Name Xxxx Xxxx
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Title CFO
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GOLDBERGS' MARINE DISTRIBUTORS, INC., a
Delaware corporation
By /s/ X. Xxxx
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Typed Name Xxxx Xxxx
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Title CFO
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XXXXX XXXXX & CO., INC., a Massachusetts
corporation
By /s/ X. Xxxx
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Typed Name Xxxx Xxxx
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Title CFO
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SEA RANGER MARINE INC., a Delaware
corporation
By /s/ X. Xxxx
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Typed Name Xxxx Xxxx
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Title CFO
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XXXXXX CORPORATION, a Delaware corporation
By /s/ X. Xxxx
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Typed Name Xxxx Xxxx
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Title CFO
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CENTRAL MARINE SUPPLY INC., a New Jersey
corporation
By /s/ X. Xxxx
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Typed Name Xxxx Xxxx
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Title CFO
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