Exhibit 10.18
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), made
and entered into as of December 27, 1994, is by and between Xxxxx Xxxxxxx Inc.,
a Delaware corporation (the "Company"), and First Bank National Association, a
national banking association (the "Bank").
RECITALS
1. The Bank and the Company entered into a Credit
Agreement dated as of November 23, 1994 (the "Credit Agreement"); and
2. The Bank and the Company desire to amend certain
provisions of the Credit Agreement 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:
(a) Section 5.1(d) of the Credit Agreement is hereby amended in
its entirety as follows:
5.1(d) As soon as practicable and in any event within 30 days
after the end of each fiscal month, a certificate, substantially in
the form of Exhibit E hereto, signed by the chief financial officer
of the Company demonstrating in reasonable detail compliance (or
noncompliance, as the case may be) with Sections 5.12, 5.13, 6.8 and
7.1(s) as at the end of such month and stating that as at the end of
such month there did not exist any Default or Event of Default or,
if such Default or Event of Default existed, specifying the nature
and period of existence thereof and what action the Company proposes
to take with respect thereto.
(b) The Credit Agreement is hereby further amended by adding Exhibit
E in the form attached hereto.
Section 3. Effectiveness of Amendment. This Amendment shall
become effective upon its execution and delivery by the Company and the Bank.
Section 4. Representations; No Default. The Company hereby
represents 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. The Company represents
and warrants that the Company has the power and legal right and authority to
enter into this Amendment.
Section 5. Affirmation, Further References. The Bank and the Company
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.
Section 6. Legal Expenses. The Company agrees to reimburse the Bank,
upon execution of this Amendment, for all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and legal expenses of counsel for the
Bank) incurred in connection with the negotiation, preparation and execution of
this Amendment and all other documents negotiated, prepared and executed in
connection with this Amendment.
Section 7. Counterparts. This Amendment 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 may
execute any such agreement by executing a counterpart of such Agreement.
Section 8. Governing Law. This Amendment 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.
COMPANY: XXXXX XXXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Treasurer
BANK: FIRST BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxx
Title: Vice President
EXHIBIT E
TO CREDIT AGREEMENT
COMPLIANCE CERTIFICATE
Pursuant to Section 5.1(d) of the Credit Agreement dated as of November
23, 1994 (as the same may be amended from time to time, the "Credit Agreement"),
the undersigned, the Chief Financial Officer of Xxxxx Xxxxxxx Inc. (the
"Company") certifies to First Bank National Association ("Bank") as follows:
1. The financial statements of Company attached hereto for the period
ending _________________, 19____ (the "Financial Statements") have been prepared
in accordance with GAAP (as such term and other terms used herein and not
otherwise defined herein are defined in the Credit Agreement) applied on a
consistent basis subject only to year-end adjustments which, in the aggregate,
are not materially adverse.
2. The representations and warranties contained in Article IV of the
Credit Agreement are true and correct as of the date hereof.
3. As of __________________, 19____, (the "Reporting Date") no Default or
Event of Default has occurred and is continuing [except (describe here any
Default or Event of Default and the action which the undersigned proposes to
take with respect thereto.)]
================================================================
================================================================
4. Net Capital (Section 5.12). As of the Reporting Date, the
required Net Capital was not less than 10% of Aggregate Debit Items and the
actual Net Capital was ____% of Aggregate Debt Items.
5. Leverage Ratio (Section 5.13). As of the Reporting Date, Total Assets
were $_______________ and Tangible Net Worth of the Company was
$_________________, the required maximum Leverage Ratio was 5.0 to 1.0, and the
actual Leverage Ratio was _____ to 1.0, as required to be computed in accordance
with the Credit Agreement.
6. Tangible Net Worth (Section 6.8). As of the Reporting Date, the
required Minimum Tangible Net Worth of the Company was $100,000,000, and the
actual Tangible Net Worth of the Company was $_______________, as required to be
computed in accordance with the Credit Agreement.
7. Tangible Net Worth of Parent (Section 7.1(s). As of the
Reporting Date, the required Minimum Tangible Net Worth of the Parent was
$125,000,000 and the actual Tangible Net Worth of the Parent was
$-----------------.
XXXXX XXXXXXX INC.
By: _________________________
Its Chief Financial Officer
