Exhibit 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS First AMENDMENT, dated as of May 23, 1997, amends and modifies a
certain Credit Agreement, dated as of November 25, 1996 (the "Credit
Agreement"), among XXXXXXX CORPORATION (the "Borrower"), FIRST BANK NATIONAL
ASSOCIATION, as Agent (the "Agent"), and the banks or financial institutions
party thereto, which currently consist of FIRST BANK NATIONAL ASSOCIATION and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION (the "Banks"). Terms not
otherwise expressly defined herein shall have the meanings set forth in the
Credit Agreement.
FOR VALUE RECEIVED, the Borrower, the Agent and the Banks agree that the
Credit Agreement is amended as follows.
ARTICLE I - AMENDMENTS TO THE CREDIT AGREEMENT
1.1 NEW SUBSIDIARY. Schedule 7.15 is amended by adding Xxxxxxx/Superstar
Computing Company to the list of Subsidiaries of the Borrower.
1.2 GUARANTORS. Section 8.14 is amended by deleting "April 30, 1997" and
inserting "June 30, 1997" in place thereof.
1.3 INDEBTEDNESS. The final paragraph of Schedule 9.2 is amended to read
as follows:
"Obligations of Xxxxxxx Corporation under a Guaranty of Indebtedness of an
Incorporated Company dated August 30, 1996 (as amended) wherein Xxxxxxx
Corporation has guaranteed 49% of the outstanding obligations under a
revolving credit agreement between Bank of Montreal as Lender and Quebecor
Xxxxxxx Canada, in the maximum principal amount of $3,000,000."
1.4 GUARANTIES. Section 9.3(b) is amended to read as follows:
"(b) guaranties, endorsements and other direct or contingent
liabilities in connection with the obligations of other Persons in
existence on the date hereof and listed in SCHEDULE 9.3, PROVIDED, that the
Borrower may increase its guaranty of the obligation of Xxxxxxxx Xxxxxxx
Xxxxxx from 49% of the outstanding obligations under a revolving credit
agreement in the maximum principal amount of $1,600,000 to 49% of the
outstanding obligations under an agreement or agreements providing for a
loan or loans in the aggregate principal amount of up to $3,000,000;"
1.5 INVESTMENTS. Section 9.4(g) is amended to read as follows:
"(g) investments in readily-marketable stock or debt instruments of other
Persons which in the aggregate do not exceed $5,000,000 at any time
outstanding."
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1.6 CONSOLIDATION AND MERGER; ACQUISITION OF ASSETS AND STOCK. The final
sentence of Section 9.6 is amended to read as follows:
"The Borrower agrees that in each consecutive 12 month period, the
amount that is expended (whether in cash or in stock) by the
Borrower and its Subsidiaries to acquire all or substantially all
of the assets or any stock of another Person, and to merge or
consolidate with another Person, shall not exceed $10,000,000 in
the aggregate for all such transactions and shall not exceed
$5,000,000 for any single transaction or series of related
transactions."
1.7 CONSTRUCTION. All references in the Credit Agreement to "this
Agreement", "herein" and similar references shall be deemed to refer to the
Credit Agreement as amended by this Amendment.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Banks to enter into this Amendment and to make
and maintain the Loans under the Credit Agreement as amended hereby, the
Borrower hereby warrants and represents to the Agent and the Banks that it is
duly authorized to execute and deliver this Amendment, and to perform its
obligations under the Credit Agreement as amended hereby, and that this
Amendment constitutes the legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms.
ARTICLE III - CONDITIONS PRECEDENT
This Amendment shall become effective on the date first set forth above,
provided, however, that the effectiveness of this Amendment is subject to the
satisfaction of each of the following conditions precedent:
3.1 WARRANTIES. Before and after giving effect to this Amendment, the
representations and warranties in ARTICLE VII of the Credit Agreement shall be
true and correct as though made on the date hereof, except for changes that are
permitted by the terms of the Credit Agreement. The execution by the Borrower of
this Amendment shall be deemed a representation that the Borrower has complied
with the foregoing condition.
3.2 DEFAULTS. Before and after giving effect to this Amendment, no Default
and no Event of Default shall have occurred and be continuing under the Credit
Agreement. The execution by the Borrower of this Amendment shall be deemed a
representation that the Borrower has complied with the foregoing condition.
3.3 NEW GUARANTOR. The Borrower has acquired or formed an additional
Subsidiary, Xxxxxxx/Superstar Computing Company, which shall become a
Guarantor as provided in Section 8.14 of the Credit Agreement. The Borrower
shall cause such new Subsidiary to deliver the following documents (the "New
Guarantor Documents"):
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(a) A Guaranty in the form of Exhibit AA to this Amendment;
(b) A certified copy of the approval resolutions for such Guaranty,
together with an incumbency certificate and certified copies of the
Articles of Incorporation and By-laws of such new Subsidiary;
(c) A certificate of good standing of such new Subsidiary; and
(d) An opinion of counsel for such new Subsidiary covering matters similar
to those covered by the opinion of the existing Guarantors.
3.4 DOCUMENTS. The Borrower, the Agent and the Banks shall have executed
and delivered this Amendment, the Guarantors shall have executed and delivered
the Guarantors' Acknowledgment in the form attached hereto, and the New
Guarantor Documents shall have been executed and delivered.
ARTICLE IV - GENERAL
4.1 EXPENSES. The Borrower agrees to reimburse the Agent upon demand
for all reasonable expenses (including reasonable attorneys' fees and legal
expenses) incurred by this Agent in the preparation, negotiation and
execution of this Amendment and any other document required to be furnished
herewith, and in enforcing the obligations of the Borrower hereunder, and to
pay and save the Agent and the Banks harmless from all liability for, any
stamp or other taxes which may be payable with respect to the execution or
delivery of this Amendment, which obligations of the Borrower shall survive
any termination of the Credit Agreement.
4.2 COUNTERPARTS. This Amendment may be executed in as many
counterparts as may be deemed necessary or convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall be deemed an original but all such counterparts shall constitute but
one and the same instrument.
4.3 SEVERABILITY. Any provision of this Amendment which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
4.4 LAW. This Amendment shall be a contract made under the laws of the
State of Minnesota, which laws shall govern all the rights and duties
hereunder.
4.5 SUCCESSORS; ENFORCEABILITY. This Amendment shall be binding upon
the Borrower, the Agent and the Banks and their respective successors and
assigns, and shall inure to the benefit of the Borrower, the Agent and the
Banks and the successors and assigns of the Agent and the Banks. Except as
hereby amended, the Credit Agreement shall remain in full force and effect
and is hereby ratified and confirmed in all respects.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed at Minneapolis, Minnesota by their respective officers thereunto duly
authorized as of the date first written above.
XXXXXXX CORPORATION
By: /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
Vice President - Finance, Chief Financial
Officer and Treasurer
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Vice President, General Counsel
and Secretary
FIRST BANK NATIONAL ASSOCIATION,
as Agent and as a Bank
By: /s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxx
Senior Vice President
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx
Vice President
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