EXHIBIT (a)(2)
FIRST AMENDMENT TO CREDIT AGREEMENT
and
ESCROW RELEASE AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT and ESCROW RELEASE AGREEMENT, dated as
of November 1, 1998 (the "First Amendment"), is by and among TOTAL LOGISTIC
CONTROL, LLC, a Delaware limited liability company (the "Borrower"), the several
lenders identified on the signature pages hereto and such other lenders as may
from time to time become a party hereto (the "Lenders"), and FIRSTAR BANK
MILWAUKEE, N.A., as agent for the Lenders (in such capacity, the "Agent").
W I T N E S S E T H
WHEREAS, the Borrower, the Lenders and the Agent are parties to that
certain Credit Agreement by and among the Borrower, certain Subsidiaries of the
Borrower from time to tome parties thereto, the Lenders and the Agent pursuant
to which the Lenders have agreed to provide a $70,000,000 reducing revolving
credit facility to the Borrower on the terms and conditions set forth therein
(as amended by this First Amendment, the "Credit Agreement");
WHEREAS, the Borrower has advised the Lenders and the Agent that the
Merger Transactions and the Divestiture have been restructured and postponed;
WHEREAS, the Borrower, the Lenders and the Agent wish to permit
consummation of the restructured and postponed Merger Transactions and
Divestiture;
WHEREAS, the Borrower, the Lenders, the Agent and Xxxxxxx & Xxxxx LLP
(the "Escrow Agent") are parties to that certain Escrow Agreement dated as of
August 14, 1998 (the "Escrow Agreement");
WHEREAS, the Borrower, the Lenders, and the Agent wish to direct the
Escrow Agent to release the Loan Documents (as defined in the Escrow Agreement)
from escrow as hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agreed as follows:
1 . Definitions. Capitalized terms not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
2. Amendment of Credit Agreement. The Credit Agreement is amended as
follows:
2.1 Section 1.1. Section 1.l of the Credit Agreement is amended as
follows:
(a) The definition of EVI is deleted in its entirety and replaced
by the following new definition:
"EVI" means Xxxxxxxxxxx International, Inc., a Delaware
corporation.
(b) The definition of Permitted CST Distribution is deleted in its
entirety and replaced by the following new definition:
"Permitted CST Distribution" means one or more distributions paid
by the Borrower to CST on or before January 31, 1999 in respect of
CST's ownership interest in the Borrower in an aggregate amount
not to exceed $20,000,000 for the purposes of consummating the
Merger Transactions and the Divestiture, provided that no Default
or Event of Default exists as of the date of any such distribution
or would result as a consequence of any such distribution.
2.2 Section 7.14. Section 7.l4 of the Credit Agreement is amended
by deleting the phrase "October 31, 1998" therein and substituting the
phrase "January 31, 1999" in lieu thereof.
2.3 Section 8.12. Section 8.12 of the Credit Agreement is amended
by deleting the phase "October 31, 1998" therein and substituting the
phrase "January 31, 1999" in lieu thereof.
2.4 Section 5.1(c). Schedule 5.1(c) of the Credit Agreement is
deleted in its entirety and replaced by new Schedule 5.1(c) in the form
attached hereto.
3. Escrow Agreement. The Escrow Agent is authorized and directed to take
the following actions pursuant to Section 2(b)(I) of the Escrow Agreement:
3.1 Closing Date. The Escrow Agent is authorized and directed to
insert "November 2, 1998" as the Closing Date on each of the Loan
Documents to the extent necessary to effect the consummation of the
financing transactions contemplated by the Credit Agreement.
3.2 Escrow Release. Upon insertion of the Closing Date in the Loan
Documents as set forth herein, the Escrow Agent is authorized and
directed to release promptly the Loan Documents (together with
appropriate execution versions and copies thereof) to the Borrower, the
Lenders and the Agent.
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4. Conditions Precedent. This First Amendment shall become effective on
the date that the Agent shall have received this First Amendment, duly executed
by the Borrower and the Lenders.
5. Representations and Warranties. To induce the lenders to enter into
this First Amendment, the Borrower hereby represents and warrants to the Agent
and to each Lender that as of the date hereof, after giving effect to this First
Amendment:
(a) the representations and warranties contained in the Credit
Agreement are true and correct;
(b) no Default or Event of Default has occurred and is continuing;
and
(c) each of the conditions set forth in Sections 5.1 and 5.2 of
the Credit Agreement has been fully satisfied; and
(d) the Borrower had delivered to the Agent a pro forma balance
sheet dated as of September 30, 1998 which reflects compliance with the
Consolidated Tangible Net Worth requirement set forth in Section 5.1(d)
of the Credit Agreement.
6. Full Force and Effect. Except as provided herein, all of the terms and
conditions set forth in the Credit Agreement, and all additional documents
entered into in connection with the Credit Agreement, shall remain unchanged and
shall continue in full force and effect as originally set forth, and each of the
foregoing is hereby ratified and confirmed in all respects.
7. Binding Effect. This First Amendment shall be binding upon the parties
hereto and their respective successors and assigned.
8. Entire Agreement. This First Agreement constitutes the entire
agreement among the Borrower, the Lenders and the Agent with respect to the
subject matter hereof.
9. Counterparts. This First Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same First Agreement.
10. Governing Law. This First Agreement shall be construed and
interpreted according to the internal laws of the State of Wisconsin without
giving effect to its conflict of laws provisions.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this First Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: TOTAL LOGISTIC CONTROL, LLC
By:
Title:
LENDERS: FIRSTAR BANK MILWAUKEE, N.A.,
In its capacity as Agent and as a Lenders
By:
Title:
BANK ONE, WISCONSIN
as a Lender
By:
Title:
XXXXXX TRUST AND SAVINGS BANK
as a Lenders
By:
Title:
