FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT
This Amendment, dated as of July, 2000, is made by and between
OPEN SEA CORPORATION, d/b/a NEBO PRODUCTS, a Utah corporation (the "Borrower"),
and XXXXX FARGO BUSINESS CREDIT, INC., a Minnesota corporation (the "Lender").
Recitals
The Borrower and the Lender have entered into a Credit and
Security Agreement dated as of June 1, 2000 (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 certain amendments be made to
the Credit Agreement, which the Lender is willing to make 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.
2. Section 6.12 of the Credit Agreement is hereby amended to read in its
entirety
"Section 6.12 Minimum Book Net Worth. The Borrower will maintain, during each
period described below, its Book Net Worth, determined as at the end of each
month, at an amount not less than the amount set forth opposite such period
(numbers appearing between "( )" are negative):
Period Minimum Book Net Worth
The calendar month ending $(430,000)
May 31, 2000
The calendar month ending $(410,000)
June 30, 2000
The calendar month ending $(390,000)
July 3 1, 2000
The calendar month ending $(370,000)
August 31, 2000
Period Minimum Book Net Worth
The calendar month ending $(350,000)
September 30, 2000
The calendar month ending $(330,000)
October 31, 2000
The calendar month ending $(310,000)
November 30, 2000
The calendar month ending $(284,000)"
December 31, 2000 and
thereafter
3. 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.
4. Conditions Precedent. This Amendment shall be effective when the Lender
shall have received an executed original hereof, together with the
Acknowledgments and Agreements of Guarantors set forth at the end of this
Amendment, duly executed by the Guarantors, and such other matters as the Lender
may require, each in substance and form acceptable to the Lender in its sole
discretion.
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 has been duly authorized by all necessary corporate action and
does 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 (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.
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6. References. All references in the Credit Agreement to "this Agreement"
shall be deemed to refer to the 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 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, and each Guarantor by signing the Acknowledgments
and Agreements of Guarantors set forth below, each hereby absolutely and
unconditionally release and forever discharge 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 or such Guarantor have had, now have or have claimed 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 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.
10. Miscellaneous. This Amendment and the Acknowledgments and Agreements of
Guarantors 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 Amendment to be
duly executed as of the date first written above.
XXXXX FARGO BUSINESS CREDIT, OPEN SEA CORPORATION, d/b/a NEBO PRODUCTS
INC.
By: /s/ Tor X. Xxxxxx By: /s/ Xxxxx Xxxxxx
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Tor X. Xxxxxx Xxxxx Xxxxxx
Its Commercial Banking Officer Its Chief Executive Officer
ACKNOWLEDGMENT AND AGREEMENT OF GUARANTOR
Each of the undersigned, a guarantor of the indebtedness of
Open Sea Corporation, d/b/a NEBO Products (the "Borrower") to Xxxxx Fargo
Business Credit. Inc. (the "Lender") pursuant to a separate Guaranty each dated
as of June 1, 2000 (each, a "Guaranty"), hereby (i) acknowledges receipt of the
foregoing Amendment; (ii) consents to the terms (including without limitation
the release set forth in Paragraph 8 of the Amendment) and execution thereof;
(iii) reaffirms his obligations to the Lender pursuant to the xxxxx of his
Guaranty; and (iv) acknowledges that the Lender may amend, restate, extend,
renew or otherwise modify the Credit Agreement and any indebtedness or agreement
of the Borrower, or enter into any agreement or extend additional or other
credit accommodations, without notifying or obtaining the consent of the
undersigned and without impairing the liability of the undersigned under his
Guaranty for all of the Borrower's present and future indebtedness to the
Lender.
/s/ X.X. Xxxxxx
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X.X. Xxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
