EXHIBIT 10.R
SECOND AMENDMENT TO CREDIT AND SECURITY AGREEMENT
(EXIMBANK GUARANTEED LOAN NO. AP073233XA)
This Amendment, dated as of February 16, 1999, is made by and
between MICRO COMPONENT TECHNOLOGY, INC., a Minnesota corporation (the
"Borrower"), and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national
banking association (the "Lender").
Recitals
The Borrower and the Lender have entered into a Credit and Security
Agreement dated as of February 17, 1998 as amended by a First Amendment to
Credit and Security Agreement dated as of October 22, 1998 (as so amended, the
"Credit Agreement"). Capitalized terms used in these recitals have the meanings
given to them in the Credit Agreement unless otherwise specified.
The Borrower has requested that the Lender extend the Maturity Date
by two years. The Lender is willing to grant the Borrower's request pursuant to
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, it is agreed as follows:
1. Defined Terms. Capitalized terms used in this Amendment which
are defined in the Credit Agreement shall have the same meanings as defined
therein, unless otherwise defined herein. In addition, Section 1.1 of the Credit
Agreement is amended by adding or amending, as the case may be, the following
definitions:
"'Maturity Date' means February 15, 2001."
2. No Other Changes. Except as explicitly amended by this
Amendment, all of the terms and conditions of the Credit Agreement shall remain
in full force and effect and shall apply to any advance or letter of credit
thereunder.
3. Fees.
(a) APPLICATION FEE. The Borrower shall reimburse the Lender for
the $100 application fee payable to Eximbank in connection with the
renewal application.
(b) FACILITY FEE. The Borrower shall pay the Lender a fully earned
and non-refundable facility fee of $25,000 due and payable upon the date
of this Amendment.
4. Conditions Precedent. This Amendment shall be effective when
the Lender shall have received an executed original hereof, together with each
of the following, each in substance and form acceptable to the Lender in its
sole discretion:
(a) A Certificate of the Secretary of the Borrower certifying as
to (i) the resolutions of the board of directors of the Borrower approving
the execution and delivery of this Amendment, (ii) the articles of
incorporation and bylaws of the Borrower, which were certified and
delivered to the Lender pursuant to its Certificate of Authority dated as
of February 16, 1998 continue in full force and effect and have not been
amended or otherwise modified except as set forth in the Certificate to be
delivered, and (iii) certifying that the officers and agents of the
Borrower who have been certified to the Lender, pursuant to the
Certificate of Authority dated as of February 16, 1998, as being
authorized to sign and to act on behalf of the Borrower continue to be so
authorized or setting forth the sample signatures of each of the officers
and agents of the Borrower authorized to execute and deliver this
Amendment and all other documents, agreements and certificates on behalf
of the Borrower.
(b) The SBA/Eximbank Joint Application, properly completed and
executed by the Borrower.
(c) The Borrower Agreement, properly executed by the Borrower.
(d) An Exceptions Approval Letter, properly signed by Eximbank.
(e) Payment of the fee described in Paragraph 3.
(f) Receipt by the Lender of the executed Loan Authorization
Notice.
(g) Such other matters as the Lender may require.
5. Representations and Warranties. The Borrower hereby represents
and warrants to the Lender as follows:
(a) The Borrower has all requisite power and authority to execute
this Amendment and to perform all of its obligations hereunder, and this
Amendment has been duly executed and delivered by the Borrower and
constitutes the legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms.
(b) The execution, delivery and performance by the Borrower of
this Amendment have been duly authorized by all necessary corporate action
and do not (i) require any authorization, consent or approval by any
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) violate any provision of any
law, rule or regulation or of any order, writ, injunction or decree
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presently in effect, having applicability to the Borrower, or the articles
of incorporation or by-laws of the Borrower, or (iii) result in a breach
of or constitute a default under any indenture or loan or credit agreement
or any other agreement, lease or instrument to which the Borrower is a
party or by which it or its properties may be bound or affected.
(c) All of the representations and warranties contained in Article
V of the Credit Agreement are correct on and as of the date hereof as
though made on and as of such date, except to the extent that such
representations and warranties relate solely to an earlier date.
6. References. All references in the Credit Agreement to "this
Agreement" shall be deemed to refer to the Credit Agreement as amended hereby;
and any and all references in the Security Documents to the Credit Agreement
shall be deemed to refer to the Credit Agreement as amended hereby.
7. No Waiver. The execution of this Amendment and acceptance of
any documents related hereto shall not be deemed to be a waiver of any Default
or Event of Default under the Credit Agreement or breach, default or event of
default under any Security Document or other document held by the Lender,
whether or not known to the Lender and whether or not existing on the date of
this Amendment.
8. Release. The Borrower hereby absolutely and unconditionally
releases and forever discharges the Lender, and any and all participants, parent
corporations, subsidiary corporations, affiliated corporations, insurers,
indemnitors, successors and assigns thereof, together with all of the present
and former directors, officers, agents and employees of any of the foregoing,
from any and all claims, demands or causes of action of any kind, nature or
description, whether arising in law or equity or upon contract or tort or under
any state or federal law or otherwise, which the Borrower has had, now has or
has made claim to have against any such person for or by reason of any act,
omission, matter, cause or thing whatsoever arising from the beginning of time
to and including the date of this Amendment, whether such claims, demands and
causes of action are matured or unmatured or known or unknown.
9. Costs and Expenses. The Borrower hereby reaffirms its
agreement under the Credit Agreement to pay or reimburse the Lender on demand
for all costs and expenses incurred by the Lender in connection with the Credit
Agreement, the Security Documents and all other documents contemplated thereby,
including without limitation all reasonable fees and disbursements of legal
counsel. Without limiting the generality of the foregoing, the Borrower
specifically agrees to pay all fees and disbursements of counsel to the Lender
for the services performed by such counsel in connection with the preparation of
this Amendment and the documents and instruments incidental hereto. The Borrower
hereby
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agrees that the Lender may, at any time or from time to time in its sole
discretion and without further authorization by the Borrower, make an Advance
under the Credit Agreement, or apply the proceeds of any Advance, for the
purpose of paying any such fees, disbursements, costs and expenses and the fee
required under paragraph 3 hereof.
10. Miscellaneous. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and all of which counterparts, taken together, shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first written above.
NORWEST BANK MINNESOTA, MICRO COMPONENT TECHNOLOGIES,
NATIONAL ASSOCIATION INC.
By By
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Xxxxx Xxxxxx Xxxxxxx X. Xxxxxxxxx
Its Officer Its Chief Financial Officer
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