Exhibit 10.60
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"),
made and entered into as of June 28, 2000, is by and between WTC Industries,
Inc., a Delaware corporation, Pentapure Incorporated, a Minnesota corporation,
Xxxxxx X. Xxxx, Xx. (collectively, the "Borrowers"), and U.S. Bank National
Association, a national banking association (the "Lender").
RECITALS
1. The Lender and the Borrowers entered into a Credit
Agreement dated as of March 29, 2000 (the "Credit Agreement"); and
2. The Borrowers desires to amend certain provisions of the
Credit Agreement, and the Lender has agreed to make such amendments, subject to
the terms and conditions set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
covenant and agree to be bound as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to them in the
Credit Agreement, unless the context shall otherwise require.
SECTION 2. AMENDMENTS. The Credit Agreement is hereby amended
as follows
2.1 REVOLVING CREDIT. Section 2.1(a) of the Credit Agreement
is amended by deleting therefrom the dollar amount "$700,000" and
inserting in its place the dollar amount "$1,400,000".
2.2 BORROWING BASE. Section 2.6 of the Credit Agreement is
amended by deleting therefrom the dollar amount "$200,000" and
inserting in its place the dollar amount "$400,000".
2.3 REVOLVING NOTE. Exhibit 2.3(a) to the Credit Agreement is
hereby amended to read as set forth on Exhibit 2.3 attached to this
Amendment which is made a part of the Credit Agreement as Exhibit
2.3(a) thereto.
2.4 BORROWING BASE CERTIFICATE. The Borrowing Base Certificate
in the form attached hereto as Exhibit 2.4 is substituted as the
Borrowing Base Certificate under the Credit Agreement.
2.5 AGING REPORTS. Section 5.1(e) of the Credit Agreement is
amended by and restated in its entirety to read as follows:
5.1(e) Upon request of the Lender an accounts
receivable aging for the Corporate Borrowers.
SECTION 3. EFFECTIVENESS OF AMENDMENTS. The amendments
contained in this Amendment shall become effective upon delivery by the
Borrowers of, and compliance by the Borrowers with, the following:
3.1 This Amendment and the Revolving Note in the form of
Exhibit 2.3 hereto (the "New Revolving Note"), each duly executed by
the Borrower.
3.2 A copy of the resolutions of the Board of Directors of the
Corporate Borrowers authorizing the execution, delivery and performance
of this Amendment and the New Revolving Note certified as true and
accurate by its Secretary or Assistant Secretary, along with a
certification by such Secretary or Assistant Secretary (i) certifying
that there has been no amendment to the Certificate of Incorporation or
Bylaws of the Corporate Borrowers since true and accurate copies of the
same were delivered to the Lender with a certificate of the Secretary,
and (ii) identifying each officer of the Corporate Borrower authorized
to execute this Amendment, the New Revolving Note and any other
instrument or agreement executed by the Borrower in connection with
this Amendment (collectively, the "Amendment Documents"), and
certifying as to specimens of such officer's signature and such
officer's incumbency in such offices as such officer holds.
3.3 Certified copies of all documents evidencing any necessary
corporate action, consent or governmental or regulatory approval (if
any) with respect to this Amendment.
3.4 The Borrowers shall have satisfied such other conditions
as specified by the Lender, including payment of all unpaid legal fees
and expenses incurred by the Lender through the date of this Amendment
in connection with the Credit Agreement and the Amendment Documents.
SECTION 4. REPRESENTATIONS, WARRANTIES, AUTHORITY, NO
ADVERSE CLAIM.
4.1 REASSERTION OF REPRESENTATIONS AND WARRANTIES, NO DEFAULT.
The Borrowers hereby represent that on and as of the date hereof and after
giving effect to this Amendment (a) all of the representations and warranties
contained in the Credit Agreement are true, correct and complete in all respects
as of the date hereof as though made on and as of such date, except for changes
permitted by the terms of the Credit Agreement, and (b) there will exist no
Default or Event of Default under the Credit Agreement as amended by this
Amendment on such date which has not been waived by the Lender.
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4.2 AUTHORITY, NO CONFLICT, NO CONSENT REQUIRED. The Borrowers
represent and warrant that the Borrowers have the power and legal right and
authority to enter into the Amendment Documents and has duly authorized as
appropriate the execution and delivery of the Amendment Documents and other
agreements and documents executed and delivered by the Borrowers in connection
herewith or therewith by proper corporate action, and none of the Amendment
Documents nor the agreements contained herein or therein contravenes or
constitutes a default under any agreement, instrument or indenture to which a
Borrower is a party or a signatory or a provision of the Corporate Borrower's
Certificate or Articles of Incorporation, Bylaws or any other agreement or
requirement of law, or result in the imposition of any Lien on any of its
property under any agreement binding on or applicable to a Borrower or any of
its property except, if any, in favor of the Lender. The Borrowers represent and
warrant that no consent, approval or authorization of or registration or
declaration with any Person, including but not limited to any governmental
authority, is required in connection with the execution and delivery by the
Borrowers of the Amendment Documents or other agreements and documents executed
and delivered by the Borrowers in connection therewith or the performance of
obligations of the Borrowers therein described, except for those which the
applicable Borrower has obtained or provided and as to which such Borrower has
delivered certified copies of documents evidencing each such action to the
Lender.
4.3 NO ADVERSE CLAIM. The Borrowers warrant, acknowledge and
agree that no events have been taken place and no circumstances exist at the
date hereof which would give any Borrower a basis to assert a defense, offset or
counterclaim to any claim of the Lender with respect to the Borrowers'
obligations under the Credit Agreement as amended by this Amendment.
SECTION 5. AFFIRMATION OF CREDIT AGREEMENT, FURTHER
REFERENCES, AFFIRMATION OF SECURITY INTEREST. The Lender and the Borrowers each
acknowledge and affirm that the Credit Agreement, as hereby amended, is hereby
ratified and confirmed in all respects and all terms, conditions and provisions
of the Credit Agreement, except as amended by this Amendment, shall remain
unmodified and in full force and effect. All references in any document or
instrument to the Credit Agreement are hereby amended and shall refer to the
Credit Agreement as amended by this Amendment. The Borrowers confirm to the
Lender that the Borrowers' obligations under the Credit Agreement, as amended by
this Amendment are and continue to be secured by the security interest granted
by the Corporate Borrowers in favor of the Lender under the Security Agreements
dated as of March 29, 2000, and all of the terms, conditions, provisions,
agreements, requirements, promises, obligations, duties, covenants and
representations of the Borrowers under such documents and any and all other
documents and agreements entered into with respect to the obligations under the
Credit Agreement are incorporated herein by reference and are hereby ratified
and affirmed in all respects by the Borrowers.
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SECTION 6. MERGER AND INTEGRATION, SUPERSEDING EFFECT. This
Amendment, from and after the date hereof, embodies the entire agreement and
understanding between the parties hereto and supersedes and has merged into this
Amendment all prior oral and written agreements on the same subjects by and
between the parties hereto with the effect that this Amendment, shall control
with respect to the specific subjects hereof and thereof.
SECTION 7. SEVERABILITY. Whenever possible, each provision of
this Amendment and the other Amendment Documents and any other statement,
instrument or transaction contemplated hereby or thereby or relating hereto or
thereto shall be interpreted in such manner as to be effective, valid and
enforceable under the applicable law of any jurisdiction, but, if any provision
of this Amendment, the other Amendment Documents or any other statement,
instrument or transaction contemplated hereby or thereby or relating hereto or
thereto shall be held to be prohibited, invalid or unenforceable under the
applicable law, such provision shall be ineffective in such jurisdiction only to
the extent of such prohibition, invalidity or unenforceability, without
invalidating or rendering unenforceable the remainder of such provision or the
remaining provisions of this Amendment, the other Amendment Documents or any
other statement, instrument or transaction contemplated hereby or thereby or
relating hereto or thereto in such jurisdiction, or affecting the effectiveness,
validity or enforceability of such provision in any other jurisdiction.
SECTION 8. SUCCESSORS. The Amendment Documents shall be
binding upon the Borrowers and the Lender and their respective successors and
assigns, and shall inure to the benefit of the Borrowers and the Lender and the
successors and assigns of the Lender.
SECTION 9. LEGAL EXPENSES. The Borrowers agree to reimburse
the Lender, upon execution of this Amendment, for all reasonable out-of-pocket
expenses (including attorney' fees and legal expenses of Xxxxxx & Whitney LLP,
counsel for the Lender) incurred in connection with the Credit Agreement,
including in connection with the negotiation, preparation and execution of the
Amendment Documents and all other documents negotiated, prepared and executed in
connection with the Amendment Documents, and in enforcing the obligations of the
Borrowers under the Amendment Documents, and to pay and save the Lender harmless
from all liability for, any stamp or other taxes which may be payable with
respect to the execution or delivery of the Amendment Documents, which
obligations of the Borrowers shall survive any termination of the Credit
Agreement.
SECTION 10. HEADINGS. The headings of various sections of this
Amendment have been inserted for reference only and shall not be deemed to be a
part of this Amendment.
SECTION 11. COUNTERPARTS. The Amendment Documents may be
executed in several counterparts as deemed necessary or convenient, each of
which, when so executed, shall be deemed an original, provided that all such
counterparts shall be regarded as one and the same document, and either party to
the Amendment Documents may execute any such agreement by executing a
counterpart of such agreement.
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SECTION 12. GOVERNING LAW. THE AMENDMENT DOCUMENTS SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT
TO CONFLICT OF LAW PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS, THEIR HOLDING COMPANIES AND THEIR AFFILIATES.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date and year first above written.
BORROWERS: WTC INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxx
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Title: Chief Financial Officer
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PENTAPURE INCORPORATED
By: /s/ Xxxxx Xxxxxxxxx
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Title: Chief Executive Officer
---------------------------------
/s/ Xxxxxx X. Xxxx, Xx.
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XXXXXX X. XXXX, XX.
LENDER: U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxx
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Title: Vice President
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REVOLVING NOTE
$1,400,000 June 28, 0000
Xx. Xxxx, Xxxxxxxxx
FOR VALUE RECEIVED, WTC INDUSTRIES, INC., a Delaware
corporation PENTAPURE INCORPORATED, a Minnesota corporation, and Xxxxxx X. Xxxx,
Xx. hereby jointly and severally promise to pay to the order of U.S. BANK
NATIONAL ASSOCIATION (the "Lender") at its office in St. Xxxx, Minnesota, in
lawful money of the United States of America in immediately available funds on
the Revolving Maturity Date (as such term and each other capitalized term used
herein are defined in the Credit Agreement hereinafter referred to) the
principal amount of ONE MILLION FOUR HUNDRED THOUSAND DOLLARS AND NO CENTS
($1,400,000) or, if less, the aggregate unpaid principal amount of all Revolving
Advances made by the Lender under the Credit Agreement, and to pay interest
(computed on the basis of actual days elapsed and a year of 360 days) in like
funds on the unpaid principal amount hereof from time to time outstanding at the
rates and times set forth in the Credit Agreement.
This note is the Revolving Note referred to in the Credit
Agreement dated as of March 29, 2000 (as the same may be hereafter from time to
time amended, restated or modified, the "Credit Agreement") between the
undersigned and the Lender. This note is secured, it is subject to certain
permissive and mandatory prepayments and its maturity is subject to
acceleration, in each case upon the terms provided in said Credit Agreement.
This note is issued in substitution and replacement of, but not in payment of, a
Revolving Note dated as of March 29, 2000 in the original principal amount of
$700,000 (the "Prior Note"). All amounts outstanding on the Prior Note on the
date hereof shall be deemed outstanding under this note and shall bear interest
and be repaid in accordance herewith.
In the event of default hereunder, the undersigned agrees to
pay all costs and expenses of collection, including reasonable attorneys' fees.
The undersigned waives demand, presentment, notice of nonpayment, protest,
notice of protest and notice of dishonor.
THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS NOTE
SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL
LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS.
WTC INDUSTRIES, INC.
By /s/ Xxxx Xxxxxx
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Title Chief Financial Officer
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PENATPURE INCORPORATED
By /s/ Xxxxx Xxxxxxxxx
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Title Chief Executive Officer
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/s/ Xxxxxx X. Xxxx, Xx.
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Xxxxxx X. Xxxx, Xx.
