SEC Info - Core-Mark Holding Company, Inc. - ‘8-K’ for 3/18/08

THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of March 12, 2008, is entered into by and among CORE-MARK HOLDING COMPANY, INC. (“Holdings”), Core-Mark International, Inc. (“International”), CORE-MARK HOLDINGS I, INC. (“Holdings I”), CORE-MARK HOLDINGS II, INC. (“Holdings II”), CORE-MARK HOLDINGS III, INC. (“Holdings III”), CORE-MARK MIDCONTINENT, INC. (“Midcontinent”), CORE-MARK INTERRELATED COMPANIES, INC. (“Interrelated”), HEAD DISTRIBUTING COMPANY (“Head”), MINTER-WEISMAN CO. (“Minter-Weisman”; each of Holdings, International, Holdings I, Holdings II, Holdings III, Midcontinent, Interrelated, Head and Minter-Weisman shall be a “Borrower”, International shall be the “Canadian Borrower” and collectively such entities shall be the “Borrowers”), the parties hereto as lenders (each individually, a “Lender” and collectively, “Lenders”), and JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders (in such capacity, “Administrative Agent”).

A. Borrowers, Administrative Agent and Lenders have previously entered into that certain Credit Agreement dated as of October 12, 2005, as amended by that certain First Amendment to Credit Agreement dated as of December 4, 2007 (as so amended and as the same may be modified, supplemented or amended from time to time, the “Credit Agreement”), pursuant to which the Lenders have made certain loans and financial accommodations available to Borrowers. Terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.

B. Borrowers have requested that Administrative Agent and the Lenders amend the Credit Agreement and Administrative Agent and the Lenders are willing to amend the Credit Agreement pursuant to the terms and conditions set forth herein.

C. Each Borrower is entering into this Amendment with the understanding and agreement that, except as specifically provided herein, none of Administrative Agent’s or any Lender’s rights or remedies as set forth in the Credit Agreement are being waived or modified by the terms of this Amendment.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

(a) The clause (e) of the definition of “Permitted Acquisition” in Section 1.01 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:

“(e) the aggregate purchase price (whether in cash, notes or any other form of non-equity consideration) of all Acquisitions made after the effective date of the Second Amendment to this Agreement shall not exceed $100,000,000; provided, however, that if at the effective date of any proposed Acquisition that otherwise meets the requirements of this definition of “Permitted Acquisitions”, the Borrowers have pro forma Availability (on both a 60-day look-back and a 60-day look-forward basis and including all non-equity consideration given in connection with such Acquisition as having been paid in cash at the time of making such Acquisition) not less than $125,000,000, such Acquisition shall not be counted against this $100,000,000 total basket;”

(b) Section 6.08(a)(v) of the Credit Agreement is hereby amended and restated to read in its entirety as follows:

“(v) the Borrowers may make stock repurchases in an aggregate amount during the term of this Agreement not to exceed $30,000,000, and”

2. Conditions Precedent to Effectiveness of this Amendment. This Amendment shall not become effective until all of the following conditions precedent shall have been satisfied in the sole discretion of Administrative Agent or waived by Administrative Agent:

(a) Amendment. Administrative Agent shall have received this Amendment fully executed in a sufficient number of counterparts for distribution to all parties.

(b) Representations and Warranties. The representations and warranties set forth herein and in the Credit Agreement must be true and correct in all material respects.

(c) Fees. Borrowers shall have paid all fees due and payable on the effective date of this Amendment, including without limitation, an amendment fee in an amount equal to 0.10% of the Commitments of each Lender that executes and delivers this Amendment.

(d) Other Required Documentation. Administrative Agent shall have received all other documents and legal matters in connection with the transactions contemplated by this Amendment and such documents shall have been delivered or executed or recorded and shall be in form and substance reasonably satisfactory to Administrative Agent.

3. Representations and Warranties. Each Borrower represents and warrants as follows:

(a) Authority. Each Borrower has the requisite corporate power and authority to execute and deliver this Amendment, and to perform its obligations hereunder and under the Loan Documents (as amended or modified hereby) to which it is a party. The execution, delivery and performance by each Borrower of this Amendment have been duly approved by all necessary corporate action, have received all necessary governmental approval, if any, and do not contravene (i) any law or (ii) any contractual restriction binding on such Borrower, except for contraventions of contractual restrictions which would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. No other corporate proceedings are necessary to consummate such transactions.

(b) Enforceability. This Amendment has been duly executed and delivered by each Borrower. This Amendment and each Loan Document (as amended or modified hereby) (i) is the legal, valid and binding obligation of each Borrower, enforceable against each Borrower in accordance with its terms., subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law, and (ii) is in full force and effect.

(c) Representations and Warranties. The representations and warranties contained in each Loan Document (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) are correct in all material respects on and as of the date hereof as though made on and as of the date hereof.

(d) No Default. No event has occurred and is continuing that constitutes a Default or Event of Default.

4. Choice of Law. The validity of this Amendment, the construction, interpretation, and enforcement hereof, and the rights of the parties hereto with respect to all matters arising hereunder or related hereto shall be determined under, governed by, and construed in accordance with the laws of the State of New York.

5. Counterparts. This Amendment may be executed in any number of counterparts and by different parties and separate counterparts, each of which when so executed and delivered, shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by telefacsimile shall be effective as delivery of a manually executed counterpart of this Amendment.

(a) Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereof or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as modified and amended hereby.

(b) Except as specifically amended in Section 1 of this Amendment, the Credit Agreement and all other Loan Documents, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed and shall constitute the legal, valid, binding and enforceable obligations of Borrowers to Administrative Agent and the Lenders without defense, offset, claim or contribution.

(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of Administrative Agent or any Lender under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

7. Ratification. Each Borrower hereby restates, ratifies and reaffirms each and every term and condition set forth in the Credit Agreement, as amended hereby, and the Loan Documents effective as of the date hereof.

8. Estoppel. To induce Administrative Agent and the Lenders to enter into this Amendment and to induce Administrative Agent and the Lenders to continue to make advances to Borrowers under the Credit Agreement, each Borrower hereby acknowledges and agrees that, after giving effect to this Amendment, as of the date hereof, there exists no Default or Event of Default and no right of offset, defense, counterclaim or objection in favor of any Borrower as against Administrative Agent or any Lender with respect to the Obligations.

9. Integration. This Amendment, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.

10. Severability. In case any provision in this Amendment shall be invalid, illegal or unenforceable, such provision shall be severable from the remainder of this Amendment and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

11. Submission of Amendment. The submission of this Amendment to the parties or their agents or attorneys for review or signature does not constitute a commitment by Administrative Agent or any Lender to waive any of their respective rights and remedies under the Loan Documents, and this Amendment shall have no binding force or effect until all of the conditions to the effectiveness of this Amendment have been satisfied as set forth herein.

IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.


BORROWERS:

CORE-MARK HOLDING COMPANY, INC.

By	/s/ *Gregory P Antholzner*
	Name:	Gregory P Antholzner
	Title:	VP Finance, Treasurer, & Asst Secretary

CORE-MARK INTERNATIONAL, INC.

By	/s/ *Gregory P Antholzner*
	Name:	Gregory P Antholzner
	Title:	VP Finance, Treasurer & Asst Secretary

CORE-MARK HOLDINGS I, INC.

By	/s/ *Gregory P Antholzner*
	Name:	Gregory P Antholzner
	Title:	Treasurer & Secretary

CORE-MARK HOLDINGS II, INC.

By	/s/ *Gregory P Antholzner*
	Name:	Gregory P Antholzner
	Title:	Treasurer & Secretary

CORE-MARK HOLDINGS III, INC.

By	/s/ *Gregory P Antholzner*
	Name:	Gregory P Antholzner
	Title:	Treasurer & Secretary

CORE-MARK MIDCONTINENT, INC.

By	/s/ *Gregory P Antholzner*
	Name:	Gregory P Antholzner
	Title:	Treasurer & Secretary



CORE-MARK INTERRELATED COMPANIES, INC.

By	/s/ *Gregory P Antholzner*
	Name:	Gregory P Antholzner
	Title:	Treasurer & Secretary

HEAD DISTRIBUTING COMPANY

By	/s/ *Gregory P Antholzner*
	Name:	Gregory P Antholzner
	Title:	Treasurer & Secretary

MINTER-WEISMAN CO.

By	/s/ *Gregory P Antholzner*
	Name:	Gregory P Antholzner
	Title:	Treasurer & Secretary


LENDERS:

JPMORGAN CHASE BANK, N.A., as Administrative Agent and a Revolving Lender

By	/s/ *Courtney Jeans*
	Name:	Courtney Jeans
	Title:	Vice President

JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as a Canadian Lender

By	/s/ *Steve Voight*
	Name:	Steve Voight
	Title:	Senior Vice President



GENERAL ELECTRIC CAPITAL CORPORATION, as a Revolving Lender

By	/s/ *Robert E. Kelly*
	Name:	Robert E. Kelly
	Title:	Duly Authorized Signatory

GE CANADA FINANCE HOLDING COMPANY, as a Canadian Lender

By	/s/ *Nick Lalani*
	Name:	Nick Lalani
	Title:	Duly Authorized Signatory



WACHOVIA CAPITAL FINANCE CORPORATION (WESTERN), as a Revolving Lender

By	/s/ *Carlos Valles*
	Name:	Carlos Valles
	Title:	Director

WACHOVIA CAPITAL FINANCE CORPORATION (CANADA), as a Canadian Lender

By	/s/ *Gary Whitaker*
	Name:	Gary Whitaker
	Title:	Director



BANK OF AMERICA, N.A., as a Revolving Lender

By	/s/ *Stephen King*
	Name:	Stephen King
	Title:	SVP

BANK OF AMERICA, N.A., CANADIAN BRANCH, as a Canadian Lender

By	/s/ *Nelson Lam*
	Name:	Nelson Lam
	Title:	Vice President



WELLS FARGO FOOTHILL, LLC, as a Revolving Lender

By	/s/ *Juan Barrera*
	Name:	Juan Barrera
	Title:	Vice President

WELLS FARGO FINANCIAL CORPORATION CANADA, as a Canadian Lender

By	/s/ *Nick Scarfo*
	Name:	Nick Scarfo
	Title:	Vice President



UNION BANK OF CALIFORNIA, N.A., as a Revolving Lender

By	/s/ *Greg Stewart*
	Name:	Greg Stewart
	Title:	Vice President

UNION BANK OF CALIFORNIA, CANADA BRANCH, as a Canadian Lender

By	/s/ *Greg Stewart*
	Name:	Greg Stewart
	Title:	Vice President



HARRIS N.A., as a Revolving Lender

By	/s/ *Corey Noland*
	Name:	Corey Noland
	Title:	Vice President

BANK OF MONTREAL, as a Canadian Lender

By	/s/ *Daniel P. Friedman*
	Name:	Daniel P. Friedman
	Title:	Director

This ‘8-K’ Filing	Date	Other Filings

Filed on / For Period End:	3/18/08	None on these Dates
	3/12/08
	12/4/07
	10/12/05
		List all Filings

Core-Mark Holding Company, Inc. – ‘8-K’ for 3/18/08 – ‘EX-10.1’

On: Tuesday, 3/18/08, at 2:44pm ET · For: 3/18/08 · Accession #: 1193125-8-59901 · File #: 0-51515

Previous ‘8-K’: ‘8-K’ on / for 3/14/08 · Next: ‘8-K’ on / for 5/9/08 · Latest: ‘8-K’ on 9/2/21 for 9/1/21 · 1 Reference: By: Core-Mark Holding Co., LLC – ‘10-K’ on 3/1/21 for 12/31/20

Current Report — Form 8-K
Filing Table of Contents

EX-10.1 — Second Amendment to Credit Agreement

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Dates Referenced Herein

1 Subsequent Filing that References this Filing



THE BANK OF NOVA SCOTIA, as a Revolving Lender and a Canadian Lender

By	/s/ *Diane Emanuel*
	Name:	Diane Emanuel
	Title:	Director