EXHIBIT 10.34
THIRD AMENDMENT TO LOAN AGREEMENT
This is the Third Amendment (the "Third Amendment"), dated as of August
20, 1998, to the Loan Agreement dated December 30, 1996, (the Loan Agreement
being hereinafter called the "Agreement") by and between NEUTRAL POSTURE
ERGONOMICS, INC., a Texas corporation, (the "Borrower") and COMERICA BANK-TEXAS,
a Texas banking association (the "Bank").
R E C I T A L S
The Borrower has requested that the Bank modify certain covenants
contained in the Agreement and subject to the terms and conditions hereinafter
stated, the Bank is willing to do so. Therefore, the Bank and the Borrower
hereby agree to amend the Agreement as provided in this Third Amendment, which
Third Amendment is in addition to, and cumulative to, any prior amendments of
the Agreement previously entered into.
SECTION 1.
DEFINITIONS
1.1 AMENDING DEFINED TERMS. Section 1.1 "DEFINED TERMS" of the Agreement,
is hereby amended by deleting in its entirety the definitions for "TERMINATION
DATE" and substituting the definition set forth below:
"TERMINATION DATE" shall mean August 21, 2000.
All terms otherwise defined in the Agreement and not defined herein shall
have the meaning ascribed to them in the Agreement.
SECTION 2.
AMENDMENT
2.7.1 COMMITMENT FEE. Is amended by adding the following sentence to the
end of that section:
In the event the Borrower terminates the Agreement early, and in a manner
satisfactory to the Lender, and provided on the early Termination Date
there is no outstanding Indebtedness, the Borrower shall be released of
its obligation to pay any additional Commitment Fee upon the payment of a
Commitment Fee for the two (2) months succeeding the month in which the
Agreement is terminated early. The payment of such Commitment Fee shall
not relieve the Borrower from any other liability it has for any other
costs or expenses incurred hereunder.
SECTION 3.
DEFINITIONS
RATIFICATION OF PRINCIPAL DUE
3.1 BALANCE DUE ON THE NOTES. The parties hereto agree that as of the date
hereof, there was an outstanding principal balance due and owing on the
Revolving Credit Note is $0.00, and the aggregate outstanding principal balance
due and owing on all Term Notes is $0.00. No funds have been advances as of the
date hereof for the Term Loan.
SECTION 4.
CONDITIONS PRECEDENT
4.1 CONDITIONS. The effectiveness of this Amendment is subject to the
satisfaction of the following conditions precedent, unless specifically waived
by Bank:
a. Bank shall have received a fee in the amount of $0.00.
b. Bank shall have received from the Borrower duly executed copies
of this Amendment, in form and substance satisfactory to Bank, in its sole
discretion;
c. The representations and warranties contained herein, in the
Agreement, as amended hereby, and/or in each other document, instrument
and agreement executed in connection with or relating to the Agreement or
this Amendment (hereinafter individually referred to as a "LOAN DOCUMENT"
and collectively referred to as the "LOAN DOCUMENTS") shall be true and
correct as of the date hereof, as if made on the date hereof;
d. No Event of Default shall have occurred and be continuing and no
Default shall exist, unless such Event of Default or Default has been
specifically waived in writing by Bank; and
e. All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents, instruments
and other legal matters incident thereto, shall be satisfactory to Bank;
SECTION 5.
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
5.1 RATIFICATIONS. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Agreement and except as expressly modified and superseded by this Amendment,
the terms and provisions of the Agreement and the other Loan Documents are
ratified and confirmed and shall continue in full force and effect. The Borrower
and Bank agree that the Agreement, as amended hereby, and the other Loan
Documents shall continue to be legal, valid, binding and enforceable in
accordance with their respective terms.
5.2 REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Bank that (i) the execution, delivery and performance of this
Amendment and any and all other Loan Documents executed and/or delivered in
connection herewith have been authorized by all requisite corporate action on
the part of the Borrower and will not violate the Articles of Incorporation or
Bylaws of the Borrower, (ii) the representations and warranties contained in the
Agreement, as amended hereby, and any other Loan Document are true and correct
on and as of the date hereof as though made on and as of the date hereof, except
to the extent such representations and warranties relate to an earlier date,
(iii) the Borrower is in full compliance with all covenants and agreements
contained in the Agreement, as amended hereby, and (iv) the Borrower has not
amended its Articles of Incorporation or Bylaws since the date of execution of
the Agreement.
SECTION 6.
MISCELLANEOUS
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in the Agreement or any other document or documents relating
thereto, including, without limitation, any Loan Document furnished in
connection with this Amendment, shall survive the execution and delivery of this
Amendment and the other Loan Documents, and no investigation by Bank or any
closing shall affect the representations and warranties or the right of Bank to
rely upon them.
6.2 REFERENCE TO AGREEMENT. Each of the Loan Documents, including the
Agreement and any and all other agreements, documents or instruments now or
hereafter executed and delivered pursuant to the terms hereof or pursuant to the
terms of the Agreement, as amended
hereby, are hereby amended so that any reference in such Loan Documents to the
Agreement shall mean a reference to the Agreement, as amended hereby.
6.3 EXPENSES OF BANK. As provided in the Agreement, the Borrower agrees to
pay on demand all reasonable costs and expenses incurred by Bank in connection
with the preparation, negotiation and execution of this Amendment and the other
Loan Documents executed pursuant hereto and any and all amendments,
modifications, and supplements thereto, including, without limitation, the
reasonable costs and fees of Bank's legal counsel, and all reasonable costs and
expenses incurred by Bank in connection with the enforcement or preservation of
any rights under the Agreement, as amended hereby, or any other Loan Document,
including, without limitation, the reasonable costs and fees of Bank's legal
counsel.
6.4 SEVERABILITY. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
6.5 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED
PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN
DALLAS, TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF TEXAS.
6.6 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall inure
to the benefit of Bank and Borrower and its respective successors and assigns,
except the Borrower may not assign or transfer any of its rights or obligations
hereunder without the prior written consent of Bank.
6.7 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
6.8 EFFECT OF WAIVER. No consent or waiver, express or implied, by Bank to
or for any breach of or deviation from any covenant or condition of the
Agreement shall be deemed a consent or waiver to or of any other breach of the
same or any other covenant, condition or duty.
6.9 HEADINGS. The headings, captions, and arrangements used in the
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
6.10 FINAL AGREEMENT. THE AGREEMENT, AS AMENDED HEREBY AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
6.11 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE
LAW, THE BORROWER HEREBY IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHTS TO A TRIAL
BY JURY IN ANY ACTION, PROCEEDING, OR COUNTER-CLAIM (WHETHER BASED UPON
CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS OR TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF THE BANK IN THE
NEGOTIATION, ADMINISTRATION OR ENFORCEMENT HEREOF.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed effective as of the date first written above.
BORROWER
NEUTRAL POSTURE ERGONOMICS, INC.
a Texas corporation
By: /s/ XXXXXXX XXXXXXX
Name: Xxxxxxx Xxxxxxx
Title: CEO
THE BANK
COMERICA BANK - TEXAS
a Texas banking association
By: /s/ XXXXXXXX XXXX
Xxxxxxxx Xxxx
Corporate Banking Officer
