SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT entered into as of December 8th,
1998 by and between XXXXXXXXXX INDUSTRIES, INC., an Oregon corporation,
("Borrower"), and KEYBANK NATIONAL ASSOCIATION ("Bank"), is as follows:
1. RECITALS. Borrower and Bank are parties to that certain Credit
Agreement dated as of March 31, 1998, as amended by the First Amendment to
Credit Agreement dated August 6, 1998 ("Agreement"). Borrower and Bank desire
to revise the Agreement in the manner set forth herein.
2. EQUITY OR SUBORDINATED DEBT.
(a) Section 7.17 is amended in its entirety to read as follows:
During the period after the Closing Date and before
January 1, 1999, Borrower shall issue not less than
$15,000,000 of equity or subordinated debt, which debt shall
be explicitly subordinated to all Senior Indebtedness on
terms satisfactory to Bank in its sole discretion.
(b) Bank hereby consents to and approves the issuance by Borrower of
subordinated debt in the principal amount of not less than $15,000,000
containing subordination terms substantially similar to or the same as the
subordination terms attached hereto as EXHIBIT A.
3. DIAMOND LEASE (USA), INC. If the aggregate amount of equity or
subordinated debt described in the amendment to Section 7.17 above is at least
$20,000,000, Borrower may use up to $8,500,000 of the proceeds of such equity or
subordinated debt for the purpose of prepaying in full its obligations to
Diamond Lease (USA), Inc.
4. AMENDMENT FEE. As consideration for Bank entering into this Second
Amendment to Credit Agreement, Borrower hereby agrees to pay Bank an amendment
fee of $300,000 on December 31, 1998; provided, however, that if before
January 1, 1999 Borrower repays all of the Obligations and agrees to the
termination of Bank's obligations under the Agreement, Bank agrees to waive
Borrower's payment of the $300,000 fee, and, provided, further, if during the
month of January, 1999 Borrower repays all of the Obligations and agrees to the
termination of Bank's obligations under the Agreement, Bank agrees to reimburse
Borrower $150,000 of the $300,000 fee if Borrower paid such fee before 1999.
5. RELEASE. Borrower hereby waives any and all defenses, claims,
counterclaims and offsets against Bank which may have arisen or accrued through
the date of this Second Amendment and acknowledges that Bank and its officers,
agents and attorneys have made no
representations or promises to Borrower except as specifically reflected in
the Agreement as amended hereby.
6. EFFECTIVE DATE. This Second Amendment shall be effective upon the
execution of this Second Amendment by Borrower and Bank.
7. RATIFICATION. Except as otherwise provided in this Second Amendment,
all of the provisions of the Agreement are hereby ratified and confirmed and
shall remain in full force and effect.
8. ONE AGREEMENT. The Agreement, as modified by the provisions of this
Second Amendment, shall be construed as one agreement.
9. COUNTERPARTS. This Second Amendment may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be an
original, and all of which when taken together shall constitute one and the same
agreement.
10. OREGON STATUTORY NOTICE.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY BANK
AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT
FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE
ENFORCEABLE.
IN WITNESS WHEREOF, Borrower and Bank have caused this Second Amendment to
be executed as of the date first above written.
XXXXXXXXXX INDUSTRIES, INC.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Title: Vice President of Finance and
Treasurer
--------------------------------
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxx
-----------------------------------
Title: Vice President
--------------------------------
