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EXHIBIT 10.15(b)
FIRST AMENDMENT AND
RESTATEMENT OF CREDIT AGREEMENT
THIS FIRST AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT (this "First
Amendment") is made and entered into as of December 11, 1998, among INDUSTRIAL
DISTRIBUTION GROUP, INC., a Delaware corporation (the "Borrower"), the lending
institutions listed on the signature pages of this First Amendment and each
other lending institution becoming a "Lender" hereunder (collectively, the
"Lenders"), THE FIRST NATIONAL BANK OF CHICAGO, in its capacities as agent for
the Lenders (in such capacity, the "Agent") and as issuing bank for the
"Facility LCs" as provided herein (in such capacity, the "LC Issuer"), BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, in its capacity as Co-Agent for
the Lenders, and FIRST UNION NATIONAL BANK, in its capacity as Co-Agent for the
Lenders.
WITNESSETH:
WHEREAS, the Borrower, certain of the Lenders, and the Agent and LC
Issuer are parties to a certain Credit Agreement dated as of December 11, 1997
(the "1997 Agreement");
WHEREAS, the Borrower has requested that (i) the "Aggregate Revolving
Commitment" under the 1997 Agreement be increased from $75,000,000 to
$125,000,000, (ii) the aggregate amount of "LC Obligations" permitted to be
outstanding under the 1997 Agreement be increased from $5,000,000 to
$10,000,000, (iii) the "Facility Termination Date" under the 1997 Agreement be
extended from December 11, 2000 to December 11, 2001, and (iv) certain other
amendments to the 1997 Agreement be made as set forth herein;
WHEREAS, those Lenders that are parties to the 1997 Agreement, and the
other Lender that is becoming a party to the 1997 Agreement pursuant to this
First Amendment, have agreed to amend the 1997 Agreement on the terms, and
subject to the conditions and requirements, set forth herein, and to restate the
1997 Agreement in its entirety to read as set forth in the 1997 Agreement as in
effect on the date hereof with the amendments set forth herein;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. DEFINED TERMS. Except as otherwise expressly defined herein,
capitalized terms used in this First Amendment that are defined in the 1997
Agreement are used in this First Amendment with the respective meanings assigned
to such capitalized terms in the 1997 Agreement.
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2. AMENDMENTS TO ARTICLE I ("DEFINITIONS").
(a) Article I of the 1997 Agreement is hereby amended by deleting
the defined terms "Aggregate Revolving Commitment", "Facility Termination Date",
"Net Proceeds of Capital Stock" and "Operating Lease" and the accompanying
definitions for such defined terms in their entirety, and substituting in lieu
thereof the following defined terms and accompanying definitions:
"AGGREGATE REVOLVING COMMITMENT" means the aggregate of the
Revolving Commitments of all the Lenders, which amount (i) on and after
the Closing Date and prior to the First Amendment Effective Date is
$75,000,000, and (ii) on and after the First Amendment Effective Date
is $125,000,000, as such amount may be reduced from time to time
pursuant to the terms hereof.
"FACILITY TERMINATION DATE" means December 11, 2001 or any
earlier date on which the Aggregate Revolving Commitment is reduced to
zero or otherwise terminated pursuant to the terms hereof.
"NET PROCEEDS OF CAPITAL STOCK" means any proceeds received or
deemed received by the Borrower or any Subsidiary in respect of the
issuance or sale of Capital Stock or the conversion of any Indebtedness
to Capital Stock, after deducting therefrom all reasonable and
customary costs and expenses incurred by the Borrower or such
Subsidiary directly in connection with such issuance, sale or
conversion. In the case of an Acquisition where some or all of the
consideration for the Acquisition is Capital Stock, the amount of
proceeds received or deemed received in respect of such Capital Stock
shall be the amount, if any, by which Consolidated Net Worth, after
giving effect to the Acquisition and related accounting adjustments as
reflected in the financial statements of the Borrower, has increased
over Consolidated Net Worth before giving effect to such Acquisition
and related accounting adjustments, all as determined in accordance
with GAAP, provided that in no instance shall "Net Proceeds of Capital
Stock" as so calculated be less than zero.
"OPERATING LEASE" of a Person means any lease of Property
(other than a Capitalized Lease) by such Person as lessee which has an
original term (including any required renewals and any renewals
effective at the option of the lessor) of one year or longer.
(b) Article I of the 1997 Agreement is hereby amended by adding
the following new defined terms and accompanying definitions in appropriate
alphabetical order:
"ADDITIONAL LENDER" means Compass Bank.
"FIRST AMENDMENT" means the First Amendment and Restatement of
Credit Agreement dated as of December 11, 1998, among the Borrower, the
Lenders, and the Agent and LC Issuer.
"FIRST AMENDMENT CREDIT DOCUMENTS" means, collectively, the
First Amendment and the Notes, Subsidiary Guaranty Supplement, Borrower
Pledge
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Agreement Supplement, Subsidiary Pledge Agreement Supplement, and
Contribution Agreement Supplement required to be executed and delivered
to the Agent pursuant to Section 4.3.
"FIRST AMENDMENT EFFECTIVE DATE" means the date on which all
conditions and requirements set forth in Section 4.3 have been
satisfied or waived in writing by the Required Lenders.
"FIRST AMENDMENT FEES" means, collectively, (i) the fee
payable to each Initial Lender on the amount of such Initial Lender's
Revolving Commitment as in effect under the Agreement immediately
before giving effect to the First Amendment, in an amount equal to
0.125% of such Revolving Commitment, (ii) the fee payable to each
Initial Lender on the amount, if any, by which such Initial Lender's
Revolving Commitment as set forth in the First Amendment exceeds such
Initial Lender's Revolving Commitment under the Agreement immediately
before giving effect to the First Amendment, in an amount equal to
0.375% of such excess amount, and (iii) the fee payable to the
Additional Lender on the entire amount of such Additional Lender's
Revolving Commitment as set forth in the First Amendment, in an amount
equal to 0.375% of such Revolving Commitment.
"INITIAL LENDERS" means those Lenders that are parties to the
1997 Agreement before giving effect to the First Amendment, such
Lenders being The First National Bank of Chicago, Bank of America
National Trust and Savings Association, First Union National Bank,
Fleet National Bank, and Wachovia Bank, N.A.
"1998 SUBSIDIARIES" means, collectively, those Subsidiaries of
the Borrower organized or acquired after the Closing Date and prior to
the First Amendment Effective Date, such Subsidiaries being X.X.
Xxxxxxxxxx Company, a Georgia corporation, Continental Air Tool, Inc.,
a California corporation, Northern Tool & Supply, Inc., a Michigan
corporation, REFCO, Inc., a Georgia corporation, Xxxxxx Industrial
Supplies, Inc., a Connecticut corporation, The New England Group
Industrial Distributors, Inc., a New Hampshire corporation, Industrial
& Tool Suppliers Limited Liability Company, a Maine limited liability
company, Xxxxxx Bros., Inc., a Tennessee corporation, Xxxx Industrial,
Inc., a California corporation, X.X. Supply, Inc., a Georgia
corporation, Cardinal Machinery, Inc., a Tennessee corporation, Xxxxx &
Xxxxxx, Inc., a Pennsylvania corporation, JM Tool and Supply, Inc., a
Michigan corporation, Xxxxxx Xxxx Xxxxx, Inc., a New York corporation,
Atlantic Industrial Supply Co., Inc., a Massachusetts corporation, and
IDG Real Properties, Inc., a Georgia corporation.
"YEAR 2000 ISSUES" means the actual and anticipated costs,
claims, losses, and liabilities associated with the inability of
certain computer applications to handle effectively data that includes
dates on and after January 1, 2000, as such inability in respect of the
Borrower and its Subsidiaries and in respect of their respective
material customers, suppliers and vendors affects the business,
operations, and financial condition of the Borrower and its
Subsidiaries.
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3. AMENDMENT TO SECTION 2.19 ("FACILITY LCS"). Subsection (a) of Section
2.19 of the 1997 Agreement is hereby amended by deleting from the first sentence
of such subsection (a) clause (i) in its entirety and substituting in lieu
thereof the following clause (i):
(i) The aggregate amount of the outstanding LC
Obligations shall not exceed $10,000,000 and
4. ADDITION OF SECTION 2.21 ("INCREASE IN COMMITMENTS"). Article II of the
1997 Agreement is hereby amended by adding a new Section 2.21 as follows:
2.21. INCREASE IN COMMITMENTS.
(a) On the First Amendment Effective Date, the Aggregate Revolving
Commitment shall be increased from $75,000,000 to $125,000,000, with such
increase being the result of increases in the Revolving Commitments of certain
Initial Lenders, and the issuance by the Additional Lender of a new Revolving
Commitment. After giving effect to the foregoing actions, the Revolving
Commitments and the Percentages of the Lenders (including the Additional Lender)
shall be as set forth on the signature pages to the First Amendment. On the
First Amendment Effective Date, all outstanding Loans shall be prepaid in full,
together with all interest accrued and unpaid thereon through the date of such
prepayment, and all amounts required to be paid pursuant to Section 3.4 as a
result of such prepayment occurring on a date other than the last day of an
Interest Period. All Loans (including, without limitation, all Loans made to the
Borrower on the First Amendment Effective Date to prepay all Loans then
outstanding) and all continuations and conversions of outstanding Loans made on
and after the First Amendment Effective Date shall be made on the basis of the
revised Revolving Commitments and Percentages as set forth in the First
Amendment.
(b) On the First Amendment Effective Date, with respect to each
Facility LC that may previously have been issued and be outstanding, the
respective participations in such Facility LC purchased by the Initial Lenders
pursuant to Section 2.19(b) shall be increased or decreased, as the case may be,
in accordance with the change in each such Initial Lender's Percentage pursuant
to the First Amendment, without further action by any party hereto. In addition,
the LC Issuer shall be deemed, without further action by any party hereto, to
have sold to the Additional Lender, and such Additional Lender shall be deemed,
without further action by any party hereto, to have purchased from the LC
Issuer, a participation in such Facility LC and the related LC Obligations in
proportion to its Percentage as established pursuant to the First Amendment.
(c) The Borrower's obligations to pay the principal of, and
interest on, all Loans shall be evidenced by the records of the Agent and each
such Lender and, if such Lender has received a Note executed by the Borrower
pursuant to Section 2.13, 4.1 or 4.3, by such Note payable to such Lender
completed in conformity with this Agreement.
(d) From and after the First Amendment Effective Date, all
references in this Agreement to the Revolving Commitments shall be deemed to
include the Revolving
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Commitments as increased by this Section 2.21 (subject, however, to subsequent
decreases from time to time as a result of any reduction thereof pursuant to the
provisions of this Agreement).
5. ADDITION OF SECTION 4.3 ("EFFECTIVENESS OF FIRST AMENDMENT"). Article
IV of the 1997 Agreement is hereby amended by adding a new Section 4.3 as
follows:
4.3. EFFECTIVENESS OF FIRST AMENDMENT. The First Amendment
shall not become effective until all of the following conditions and
requirements have been satisfied and performed:
(a) The Borrower shall have furnished to the Agent the
following, all in form and substance satisfactory to the Agent and the
Lenders, with sufficient copies for the Lenders:
(i) Copies of the articles or certificate of
incorporation, certificate of limited
partnership, articles of organization, or
similar organizational documents of each
Loan Party (including, without limitation,
each 1998 Subsidiary), together with all
amendments thereto, and a certificate of
good standing, each certified by the
appropriate governmental officer in its
jurisdiction of organization for such Loan
Party.
(ii) Copies, certified by its Secretary or
Assistant Secretary or similar
representative, of each Loan Party's
(including, without limitation, each 1998
Subsidiary's) by-laws, partnership
agreement, operating or management
agreement, or similar organizational
documents, and resolutions of its board of
directors, managers, or similar officials,
authorizing the execution of the First
Amendment Credit Documents to which each
such Loan Party is a party.
(iii) An incumbency certificate, executed by the
Secretary or Assistant Secretary or similar
representative of each Loan Party
(including, without limitation, each 1998
Subsidiary), which shall identify by name
and title and bear the signatures of the
authorized officers and any other
representative of such Loan Party authorized
to sign the First Amendment Credit Documents
to which such Loan Party is a party, upon
which certificate the Agent and the Lenders
shall be entitled to rely until informed of
any change in writing by such Loan Party.
(iv) A certificate, signed by the Chief Financial
Officer of the Borrower, stating that on the
First Amendment Effective Date (A) no
Default or Unmatured Default has occurred
and is continuing, (B) the representations
and warranties set forth in the First
Amendment and the other First Amendment
Credit Documents are true and correct in all
material respects, and (C) all conditions
and
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requirements set forth in this Article IV
have been satisfied and performed or waived
in writing by the Required Lenders.
(v) A written opinion of counsel for the Loan
Parties (including, without limitation, the
1998 Subsidiaries), addressed to the Lenders
in substantially the form of Exhibit K
attached to the First Amendment.
(vi) Any Notes requested by Lenders pursuant to
Section 2.13 payable to the order of such
requesting Lenders.
(vii) A Subsidiary Guaranty Supplement duly
executed by an authorized officer or other
representative of each of the 1998
Subsidiaries.
(viii) A Borrower Pledge Agreement Supplement, duly
executed by an Authorized Officer of the
Borrower, in respect of all of the issued
and outstanding capital stock of the 1998
Subsidiaries owned or held by the Borrower,
together with (i) all stock certificates and
other instruments and documents representing
the "Additional Pledged Securities" (as
defined in the Borrower Pledge Agreement
Supplement) accompanied by instruments of
transfer and stock powers endorsed in blank,
and (ii) Uniform Commercial Code financing
statements naming the Borrower as "debtor"
and the Agent, for the ratable benefit of
the Lenders, as the "secured party" and
covering the "Additional Collateral" (as
defined in the Borrower Pledge Agreement
Supplement), evidencing a first priority
pledge of and security interest in such
"Additional Pledged Securities."
(ix) A Subsidiary Pledge Agreement Supplement,
duly executed by an authorized officer or
other representative of each Subsidiary
(including, without limitation, each 1998
Subsidiary) that owns or holds any capital
stock of any of the 1998 Subsidiaries, in
respect of all such capital stock owned or
held by it, together with (i) all stock
certificates and other documents and
instruments representing the "Additional
Pledged Securities" as defined in the
Subsidiary Pledge Agreement Supplement)
accompanied by instruments of transfer and
stock powers endorsed in blank, and (ii)
Uniform Commercial Code financing statements
naming each Subsidiary as "debtor" and the
Agent, for the ratable benefit of the
Lenders, as the "secured party" and covering
the "Additional Collateral" (as defined in
the Subsidiary Pledge Agreement Supplement),
evidencing a first priority pledge of and
security interest in such "Additional
Pledged Securities."
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(x) A Contribution Agreement Supplement duly
executed by an authorized officer or other
representative of each of the 1998
Subsidiaries.
(xi) Evidence satisfactory to the Agent that the
Existing Credit Agreements have been
terminated and indebtedness, liabilities,
and obligations outstanding thereunder have
been paid in full, and that all Liens on the
assets and properties of the Borrower and
its Subsidiaries, other than those permitted
by Section 6.14, have been terminated or
canceled.
(xii) A compliance and solvency certificate
executed by the Chief Financial Officer of
the Borrower.
(xiii) Satisfactory written information from the
Borrower indicating that the Borrower and
its Subsidiaries (i) have done a
comprehensive review of their computer
programs and systems to identify those
programs and systems that would be affected
by Year 2000 Issues as such Issues pertain
to the computer programs and systems of the
Borrower and its Subsidiaries, and are in
the process of reviewing their Year 2000
exposure to third party customers, suppliers
and vendors, and evaluating the costs of
modifications to program logic control
systems, (ii) have developed or are in the
process of developing a realistic and
achievable program for remediating in all
material respects all currently known Year
2000 Issues on a timely basis as such Issues
pertain to the computer programs and systems
of the Borrower and its Subsidiaries, and
(iii) based on their review, consultants'
reports and other information currently
available to them, do not reasonably
anticipate that Year 2000 Issues will have a
Material Adverse Effect.
(xiv) Such other documents as the Agent or any
Lender or its counsel may have reasonably
requested.
(b) The Borrower shall have paid (i) to the Agent for the benefit
of the respective Lenders (including, without limitation, the Additional Lender)
the full amount of the First Amendment Fees, (ii) to the Agent the annual
administrative fee as previously agreed by the Borrower, and (iii) to the
Arranger the arrangement fee due in respect of the First Amendment as previously
agreed by the Borrower.
(c) The First Amendment shall have been executed and delivered by
the Borrower, each of the Lenders (including, without limitation, the Additional
Lender), the Agent and LC Issuer and the Co-Agents, and the Acknowledgment and
Agreement of Guarantors attached to the First Amendment shall have been executed
and delivered by all Domestic Active Subsidiaries (including, without
limitation, the 1998 Subsidiaries).
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(d) Since June 30, 1998, there shall have been no change in the
business, Property, prospects, condition (financial or otherwise) or results of
operations of the Borrower and its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.
6. AMENDMENT TO SECTION 5.8 ("SUBSIDIARIES"). The first sentence of
Section 5.8 is hereby amended by deleting such first sentence in its entirety
and substituting in lieu thereof the following sentence:
"Schedule 5.8 as attached to the First Amendment contains an
accurate list of all Subsidiaries of the Borrower as of the First
Amendment Effective Date, setting forth their respective jurisdictions
of organization and the percentage of their respective capital stock or
other ownership interests owned by the Borrower and its other
Subsidiaries in all such Subsidiaries.
7. ADDITION OF SECTION 5.21 ("YEAR 2000 ISSUES"). Article V of the 1997
Agreement is hereby amended by adding a new Section 5.21 as follows:
5.21. YEAR 2000 ISSUES. The Borrower and its Subsidiaries (i)
have done a comprehensive review of their computer programs and systems
to identify those programs and systems that would be affected by Year
2000 Issues as such Issues pertain to the computer programs and systems
of the Borrower and its Subsidiaries, and are in the process of
reviewing their Year 2000 exposure to third party customers, suppliers
and vendors, and evaluating the costs of modifications to program logic
control systems, (ii) have developed or are in the process of
developing a realistic and achievable program for remediating in all
material respects all currently known Year 2000 Issues on a timely
basis as such Issues pertain to the computer programs and systems of
the Borrower and its Subsidiaries, and (iii) based on their review,
consultants' reports, and all other information currently available to
them, do not reasonably anticipate that Year 2000 Issues will have a
Material Adverse Effect.
8. AMENDMENT TO SECTION 6.10 ("INDEBTEDNESS").
(a) Section 6.10 of the 1997 Agreement is hereby amended by
deleting the introductory phrase thereof (such phrase being the portion of the
first sentence of Section 6.10 immediately preceding clause (i) thereof) in its
entirety and substituting in lieu thereof the following phrase:
The Borrower will not, and will not permit the Active
Subsidiaries to, create, incur or suffer to exist any
Indebtedness other than Indebtedness arising under this
Agreement and the other Credit Documents, except:
(b) Section 6.10 of the 1997 Agreement is hereby further amended
by deleting clause (vi) thereof in its entirety and substituting in lieu thereof
the following clauses (vi) and (vii) as follows:
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(vi) Other Indebtedness not described in the preceding
clauses (i) through (v), or in the following clause
(vii), not to exceed an amount equal to five percent
(5%) of the consolidated total assets of the Borrower
and its Subsidiaries as measured as at the end of the
most recent fiscal quarter of the Borrower.
(vii) Other Indebtedness not described in clause (ii) or
(v) above incurred after the First Amendment
Effective Date in an aggregate amount not to exceed
$7,500,000 for the purpose of financing purchases by
the Borrower and its Subsidiaries of computer
hardware and software.
9. AMENDMENT TO SECTION 6.19.3 ("MINIMUM NET WORTH"). Section 6.19.3 of
the 1997 Agreement is hereby amended by deleting such Section 6.19.3 in its
entirety and substituting in lieu thereof the following Section 6.19.3:
6.19.3. MINIMUM NET WORTH. The Borrower will maintain, at all
times on and after June 30, 1998, Consolidated Net Worth of not less
than the sum of (i) $95,000,000, (ii) 50% of Consolidated Net Income
(without deduction for losses) for each preceding fiscal quarter
(commencing with the third fiscal quarter of the Borrower's 1998 fiscal
year), and (iii) the aggregate amount of all Net Proceeds of Capital
Stock received or deemed received after June 30, 1998.
10. ADDITION OF SECTION 6.24 ("YEAR 2000 ISSUES"). Article VI of the 1997
Agreement is hereby amended by adding a new Section 6.24 as follows:
6.24. YEAR 2000 ISSUES. The Borrower will take, and cause
its Subsidiaries to take, all actions reasonably necessary to assure
that the Year 2000 Issues, as such issues pertain to the computer
programs and systems of the Borrower and its Subsidiaries, will not
have a Material Adverse Effect. The Borrower and its Subsidiaries will
use their best efforts to assure that their third-party customers,
suppliers and vendors develop and implement programs to remediate in
all material respects all Year 2000 Issues that would otherwise
reasonably be anticipated by the Borrower or its Subsidiaries to have a
Material Adverse Effect. Upon request by the Agent or any Lender, the
Borrower will provide the Lenders a written description of its Year
2000 program, including updates and progress reports. The Borrower will
promptly advise the Agent and the Lenders of any reasonably anticipated
Material Adverse Effect as a result of any Year 2000 Issues.
11. AMENDMENT TO PRICING SCHEDULE. The Pricing Schedule attached to the
1997 Agreement is hereby amended by deleting such Pricing Schedule in its
entirety and substituting in lieu thereof the Pricing Schedule attached to this
First Amendment. On and after the First Amendment Effective Date, interest on
all Loans and Commitment Fees on the daily unused portion of each Lender's
Revolving Commitment shall be calculated on the basis of the applicable interest
rate margins and fee rates as set forth in the Pricing Schedule attached to this
First Amendment.
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12. AMENDMENT TO SCHEDULE 5.8 ("SUBSIDIARIES"). Schedule 5.8 attached to
the 1997 Agreement is hereby amended by deleting said Schedule 5.8 in its
entirety and substituting in lieu thereof Schedule 5.8 as attached to this First
Amendment.
13. ADDITIONAL LENDER; LENDER INFORMATION. On and after the First Amendment
Effective Date, the Additional Lender shall, for all purposes of the 1997
Agreement and the other Credit Documents, as amended by this First Amendment, be
a "Lender" having in effect the Revolving Commitment as shown for such
Additional Lender on its signature page attached to this First Amendment. The
address for notices and specification of its Lending Installation shall be as
shown on its signature page as attached to this First Amendment. The Additional
Lender agrees that, on and after the First Amendment Effective Date, such
Additional Lender shall be a party to the 1997 Agreement as amended by this
First Amendment, and hereby assumes and agrees to pay and perform all
obligations that it may have or incur as a "Lender" under the terms of the 1997
Agreement and the other Credit Documents as amended by this First Amendment, to
the same extent and with the same effect as though such Additional Lender had
originally been a Lender that was a party to the 1997 Agreement.
14. REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders and the
Agent and LC Issuer to enter into this First Amendment, the Borrower represents
and warrants to the Lenders and the Agent and LC Issuer as follows:
(a) All representations and warranties set forth in the 1997
Agreement, as amended by this First Amendment, are true and correct in all
material respects with the same effect as though such representations and
warranties had been made on and as of the date of this First Amendment, except
to the extent that such representations and warranties are expressly made with
respect to a specific date, in which case such representations and warranties
are true and correct in all material respects as of such specific date.
(b) No Default or Unmatured Default has occurred and is continuing
on the date hereof. Since June 30, 1998, there has been no change in the
business, Property, prospects, condition (financial or otherwise) or results of
operations of the Borrower and its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.
(c) Each of the Borrower and the other Loan Parties (including,
without limitation, the 1998 Subsidiaries) has the organizational power and
authority to make, deliver and perform their respective obligations under this
First Amendment and the other First Amendment Credit Documents and has taken all
necessary organizational action to authorize the execution, delivery and
performance of this First Amendment and the other First Amendment Credit
Documents. No consent or authorization of, or filing with, any Person
(including, without limitation, any governmental authority), is required in
connection with the execution, delivery or performance by the Borrower or any
such other Loan Party, or the validity or enforceability against the Borrower or
any such other Loan Party, or any of the First Amendment Credit Documents, other
than such consents, authorizations or filings which have been made or obtained.
(d) Each of the First Amendment Credit Documents has been duly
executed and delivered by the Borrower and the other Loan Parties (including,
without limitation, the 1998
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Subsidiaries), as applicable, and each of the First Amendment Credit Documents
constitutes the legal, valid and binding obligation of the Borrower and such
other Loan Parties, respectively, enforceable against the Borrower and such
other Loan Parties in accordance with their respective terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
other similar laws affecting the enforcement of creditors' rights generally and
by general principles of equity. The execution, delivery and performance by the
Borrower and such other Loan Parties of the First Amendment Credit Documents
will not violate any applicable legal requirements or cause a breach or default
under any of their respective contractual obligations.
(e) The Borrower acknowledges and agrees that there are no
defenses, claims, counterclaims, or rights of setoff in its favor against any
Lender or the Agent or LC Issuer with regard to any of the obligations and
liabilities of the Borrower or any of its Subsidiaries under the terms of the
1997 Agreement, the other Credit Documents, this First Amendment or the other
First Amendment Credit Documents.
15. REFERENCES TO AGREEMENT. On and after the First Amendment Effective
Date, each and every reference in the Credit Documents to the 1997 Agreement
shall be deemed to refer to and mean the 1997 Agreement as amended and restated
by this First Amendment. The parties further confirm and agree that (i) except
as expressly amended herein, the 1997 Agreement remains in full force and effect
in accordance with its terms, and (ii) except as expressly amended or
supplemented by the First Amendment Credit Documents, all other Credit Documents
remain in full force and effect in accordance with their respective terms.
16. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on demand all
reasonable costs and expenses of the Agent in connection with the preparation,
execution and delivery of this First Amendment and the other First Amendment
Credit Documents, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Agent with respect thereto and with
respect to advising the Agent as to its rights and responsibilities hereunder
and thereunder. In addition, the Borrower shall pay any and all stamp and other
taxes payable or determined to be payable in connection with the execution and
delivery of this First Amendment and the other First Amendment Credit Documents,
and agrees to save the Agent and each Lender harmless from and against any and
all liabilities with respect to or resulting from any delay in paying such
taxes.
17. GOVERNING LAW. This First Amendment shall be governed by, and construed
in accordance with, the laws of the State of Georgia.
18. ENTIRE UNDERSTANDING. This First Amendment sets forth the entire
understanding of the parties with respect to the matters set forth herein, and
shall supersede any prior negotiations, commitment letters, or agreements,
whether written or oral, with respect to such matters.
19. COUNTERPARTS. This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts and may be
delivered by telecopier. Each counterpart so executed and delivered shall be
deemed an original and all of which taken together shall constitute but one and
the same instrument.
20. NO WAIVER. The Borrower agrees that nothing herein shall constitute a
waiver by the Lenders of any Default or Unmatured Default, whether known or
unknown, which may exist under the 1997 Agreement, the other Credit Documents,
this First Amendment, or the other First Amendment Credit Documents.
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment through their authorized officers as of the date first above written.
INDUSTRIAL DISTRIBUTION GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Title: Senior Vice President,
Chief Financial Officer
----------------------------------
0000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telephone: 770/000-0000
` FAX: 770/000-0000
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Revolving Commitment:
$30,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
Percentage:
By: /s/ Xxxxxx X. Xxxxxxxx
24.00% ----------------------------------
Title: Vice President
----------------------------
Lending Installation: One First National Plaza
Mail Suite 0324
First Chicago Capital Markets, Inc. Xxxxxxx, Xxxxxxxx 00000
One First National Plaza
Mail Suite 0324 Attention: Xxxxxx X. Xxxxxxxx
Xxxxxxx, XX 00000 Telephone: (000) 000-0000
FAX: (000) 000-0000
14
Revolving Commitment:
$23,750,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
Individually and as Co-Agent
Percentage:
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
19.00%
Title: Vice President
--------------------------------------
000 Xxxxxxxxx Xxxxxx, X.X., 0xx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Lending Installation:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
15
Revolving Commitment:
$23,750,000 FIRST UNION NATIONAL BANK,
Individually and as Co-Agent
Percentage:
By: /s/ Xxxxxxx X. Xxxxxxxx
19.00% ---------------------------------------
Title: Vice President
---------------------------------
000 Xxxxxxxxx Xxxxxx
Ninth Floor
MC 9084
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Lending Installation:
000 Xxxxxxxxx Xxxxxx
Ninth Floor
MC 9084
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
16
Revolving Commitment:
$20,000,000 FLEET NATIONAL BANK
Percentage:
By: /s/ Xxxxxx X. Xxxx
16.00% -------------------------------------
Title: Vice President
-------------------------------
One Federal Street
7th Floor, Mail Stop MA 0F D07L
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Lending Installation:
Xxx Xxxxxxx Xxxxxx
0xx Xxxxx, Xxxx Xxxx XX 0X D07K
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
17
Revolving Commitment:
$17,500,000 WACHOVIA BANK, N.A.
Percentage:
By: /s/ Xxxxx Xxxxxx
14.00% -------------------------------------
Title: Senior Vice President
------------------------------
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Lending Installation:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
18
Revolving Commitment:
$10,000,000 COMPASS BANK
Percentage:
By: /s/ Xxxx X. Xxxxxx
8.00% -------------------------------------
Title: Vice President
------------------------------
Xxxxx Xxxxxx, Xxxxx 000
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Lending Installation:
00 Xxxxx 00xx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
19
PRICING SCHEDULE
================================================================
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV
MARGIN STATUS STATUS STATUS STATUS
================================================================
Eurodollar Rate 1.000% 1.25% 1.50% 1.75%
=================================================================
Floating Rate 0% 0.25% 0.50% 0.75%
=================================================================
=================================================================
APPLICABLE FEE LEVEL I LEVEL II LEVEL III LEVEL IV
RATE STATUS STATUS STATUS STATUS
=================================================================
Commitment 0.25% 0.25% 0.30% 0.35%
Fee
=================================================================
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"FINANCIALS" means the annual or quarterly consolidated financial
statements of the Borrower and its Subsidiaries delivered pursuant to
Section 6.1(i) or (ii).
"LEVEL I STATUS" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent
Financials, the Leverage Ratio is less than or equal to 2.00 to 1.00.
"LEVEL II STATUS" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent
Financials, (i) the Borrower does not qualify for Level I Status and
(ii) the Leverage Ratio is less than or equal to 2.50 to 1.00.
"LEVEL III STATUS" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent
Financials, (i) the Borrower does not qualify for Level I Status or
Level II Status, and (ii) the Leverage Ratio is less than or equal to
3.00 to 1.00.
"LEVEL IV STATUS" exists at any date if the Borrower does not qualify
for Level I, Level II, or Level III Status.
"STATUS" means either Level I Status, Level II Status, Level III
Status, or Level IV Status, as the case may be.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as
reflected in the then most recent Financials. Adjustments, if any, to
the Applicable Margin or Applicable Fee Rate shall be effective five
Business Days after the Agent has received the applicable Financials.
If the Borrower fails to deliver the Financials to the Agent at the
time required pursuant to Section 6.1, then the Applicable Margin and
Applicable Fee Rate shall be the highest Applicable Margin and
Applicable Fee Rate set forth in the foregoing table until five
Business Days after such Financials are so delivered.
