EXHIBIT 4.5
SECOND AMENDMENT TO CREDIT AND SECURITY AGREEMENT
This Second Amendment, dated as of October 22, 1998, is made
by and between TELIDENT, INC., a Minnesota corporation (the "Borrower"), and
NORWEST CREDIT, INC., a Minnesota corporation (the "Lender").
Recitals
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The Borrower and the Lender have executed and delivered a
Credit and Security Agreement dated as of February 3, 1995, as amended by First
Amendment to Credit and Security Agreement dated as of May 1, 1995 (as amended,
the "Credit Agreement"). All capitalized terms used herein have the meanings
given to them in the Credit Agreement.
The Borrower may request Advances from the Lender from time to
time pursuant to the Credit Agreement and the Lender may, in its discretion,
choose to make loans to the Borrower pursuant to the Credit Agreement. The
Lender may demand repayment of the loans at any time pursuant to the terms of
the Credit Agreement.
The Borrower has requested that the Lender reduce the Maximum
Line and decrease the Floating Rate. The Lender is willing to grant the
Borrower's requests pursuant to the following terms and conditions.
ACCORDINGLY, 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 Second
Amendment which are defined in the Credit Agreement shall have the same meanings
as defined therein, unless otherwise defined herein or in the Recitals hereto.
In addition, Section 1.1 of the Credit Agreement is amended by adding or
amending, as the case may be, the following definitions:
"'Borrowing Base' means, at any time, the lesser of:
(a) the Maximum Line, or
(b) 100% of the Eligible Marketable Securities."
in either case, computed in accordance with the most recent
collateral reports provided to and accepted by the Lender. The Lender
may change from time to time, IN ITS SOLE DISCRETION AND WITH ONE DAY'S
NOTICE TO THE BORROWER, the standards, criteria and formulae used by
the Lender in determining the Borrowing Base."
"'Control Agreement' means that certain Notice of Pledge and
Control Agreement by and among NISI, the Lender, and the Borrower dated
as of October 22, 1998."
"'Eligible Marketable Securities' means, in the Lender's sole
discretion, government/agency securities, in the NISI Account, and for
which the Lender has received a Control Agreement executed and
acknowledged by the Borrower and NISI."
"'Floating Rate' means an annual rate equal to the sum of the
Base Rate plus two percent (2.0%) which annual rate shall change when
and as the Base Rate changes."
"'Maximum Line' means $300,000."
"'NISI' means Norwest Investment Services, Inc., a Minnesota
corporation."
"'NISI Account' means account no. 00000000 maintained with
NISI."
"'Pledge Agreement' means that certain Collateral Pledge
Agreement by the Borrower for the benefit of the Lender, dated as of
October 22, 1998."
"'Second Amendment' means that certain Second Amendment to
Credit and Security Agreement dated as of October 22, 1998, by and
between the Borrower and the Lender.
"'Second Amendment Effective Date' means the date that all of
the conditions in paragraph 5 of Second Amendment have been satisfied."
2. Minimum Interest Charge. Section 2.2(b) of the Credit
Agreement is deleted in its entirety, and replaced with the following:
"(b) Minimum Interest Charge. Notwithstanding the interest
payable pursuant to Section 2.2(a), the Borrower shall pay the Lender
interest of not less than $17,000 per calendar year during the term of
this agreement (prorated for less than full years), and the Borrower
shall pay any deficiency between such minimum interest charge and the
amount of interest otherwise calculated under Sections 2.2(a) and
2.2(c)."
3. Administration Fees. Section 2.3 of the Credit Agreement is
deleted in its entirety.
4. Daily Reporting. Section 6.1(f) of the Credit Agreement is
amended in its entirety and replaced with the following:
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"(f) Omitted."
5. No Other Changes. Except as explicitly amended by this
Second Amendment, all of the terms and conditions of the Credit Agreement shall
remain in full force and effect and shall apply to any advance thereunder.
6. Conditions Precedent. This Second 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) The Control Agreement, duly executed by the Borrower, NISI
and the Lender.
(b) The Pledge Agreement, duly executed by the Borrower.
(c) Such other matters as the Lender may require.
7. 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 Second Amendment and to perform all of its obligations
hereunder, and this Second 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 Second 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 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 IV 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.
8. 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 Note or Security Documents to the Credit
Agreement shall be deemed to refer to the Credit Agreement as amended hereby.
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9. No Waiver. The execution of this Second 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 Second Amendment.
10. 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 Second Amendment,
whether such claims, demands and causes of action are matured or unmatured or
known or unknown.
11. 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 Second Amendment and the documents and instruments incidental hereto. The
Borrower hereby 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 a
loan to the Borrower under the Credit Agreement, or apply the proceeds of any
loan, for the purpose of paying any such fees, disbursements, costs and
expenses.
12. Miscellaneous. This Second 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the day and year first above written.
TELIDENT, INC.
By /s/ W. Xxxxxx XxXxxxxxxx
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W. Xxxxxx XxXxxxxxxx
Its President and Chief Executive Officer
NORWEST CREDIT, INC.
By /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Its Vice President
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