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EXHIBIT 6.14
AMENDMENT TO SECURED LOAN AGREEMENT
THIS AMENDMENT TO SECURED LOAN AGREEMENT (hereinafter referred to as
the "Amendment") is made and entered into on this 12th day of August, to be
effective as of August 12, 1997 by and between NEUTRAL POSTURE ERGONOMICS,
INC., a Texas corporation (hereinafter referred to as "Borrower") and COMERICA
BANK-TEXAS, a Texas state banking association (hereinafter referred to as
"Bank").
RECITALS
A. Borrower and Bank have entered into that certain Secured Loan
Agreement, dated December 30, 1996, hereinafter referred to as the "Agreement".
B. Borrower and Bank desire to amend the Agreement as hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, hereby agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same meaning as in the
Agreement, as amended hereby.
ARTICLE II
AMENDMENTS
Section 2.01. AMENDMENT TO SECTION 1.1 - DEFINED TERMS. SECTION 1.1 of
the Agreement is hereby amended to add the following definition:
"Fixed Asset" shall mean property used in normal course of business that
is of long-term nature such as land, machinery, fixtures and equipment.
Section 2.02. AMENDMENT TO SECTION 7.15 - CAPITAL EXPENDITURES
Section 7.15 is hereby deleted. There shall be no dollar limitation on
the acquisition of fixed assets.
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Section 2.03 AMENDMENT TO SECTION 7.1 - DIVIDENDS. SECTION
7.1 is hereby amended by deleting in its entirety Section 7.1 and inserting
therefor, the following:
SECTION 7.1 DIVIDENDS. The Company may not pay any dividends
(other than dividends payable in shares of its capital stock
or as permitted by Section 7.16 hereof) or make any other
distribution with respect to (whether by reduction of capital
or otherwise) any shares of its capital stock, except that
dividends from any Subsidiary to the Borrower are permitted.
NOTWITHSTANDING THE FOREGOING, the Borrower may, from time to
time, declare dividends provided that after declaring such
dividends and making such accrual entries on its books and
records as are required in accord and with GAAP no Event of
Default would result hereunder either from the declaration of,
or the accrual for such dividends. Once declared and accrued,
the Company shall pay no dividends, other than as set forth in
Section 7.16 hereof, without the prior written consent of the
Bank.
Section 2.04 AMENDMENT TO SECTION 7.16 BONUS OR DIVIDEND FOR TAXES.
SECTION 7.16 is hereby amended by deleting in its entirety Section 7.16 and
inserting therefor, the following:
SECTION 7.16 BONUS FOR DIVIDENDS FOR TAXES. So long as the
Borrower is a Subchapter S corporation for federal income tax
purposes, the Borrower may pay a bonus or dividends to the
Guarantors sufficient to pay the federal income tax due as a
result of the net income of the Borrower attributed to the
Guarantors under the provisions of Subchapter S of the Internal
Revenue Code.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01 CONDITIONS. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent, unless
specifically waived by Bank:
(a) Bank shall have received from Borrower duly executed copies of
this Amendment, in form and substance satisfactory to Bank, in its sole
discretion;
(b) The representations and warranties contained herein, in the
Agreement, as amended hereby, and/or in each other document, instrument
and agreement executed in connection with or relating to the Agreement
or this Amendment (hereinafter individually referred to as a "Loan
Document" and collectively referred to as the "Loan Documents") shall be
true and correct as of the date hereof, as if made on the date hereof;
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(c) No Event of Default shall have occurred and be continuing and no
Default shall exist, unless such Event of Default or Default has been
specifically waived in writing by Bank; and
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments and other legal matters incident thereto, shall be
satisfactory to Bank.
ARTICLE IV
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
Section 4.01. RATIFICATIONS. The terms and provisions set forth in
this Amendment shall modify and supersede all inconsistent terms and provisions
set forth in the Agreement and except as expressly modified and superseded by
this Amendment, the terms and provisions of the Agreement and the other Loan
Documents are ratified and confirmed and shall continue in full force and
effect. Borrower and Bank agree that the Agreement, as amended hereby, and the
other Loan Documents shall continue to be legal, valid, binding and enforceable
in accordance with their respective terms.
Section 4.02. REPRESENTATIONS AND WARRANTIES. Borrower hereby
represents and warrants to the Bank that (i) the execution, delivery and
performance of this Amendment and any and all other Loan Documents executed
and/or delivered in connection herewith have been authorized by all requisite
corporate action on the part of Borrower and will not violate the Articles of
Incorporation or Bylaws of Borrower, (ii) the representations and warranties
contained in the Agreement, as amended hereby, and any other Loan Document are
true and correct on and as of the date hereof as though made on and as of the
date hereof, except to the extent such representations and warranties relate to
an earlier date, (iii) Borrower is in full compliance with all covenants and
agreements contained in the Agreement, as amended hereby, and (iv) Borrower has
not amended its Articles of Incorporation or Bylaws since the date of execution
of the Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in the Agreement or any other document or
documents relating thereto, including, without limitation, any Loan Document
furnished in connection with this Amendment, shall survive the execution and
delivery of this Amendment and the other Loan Documents, and no investigation
by Bank or any closing shall affect the representations and warranties or the
right of Bank to rely upon them.
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Section 5.02. REFERENCE TO AGREEMENT. Each of the Loan Documents,
including the Agreement and any and all other agreements, documents or
instruments now or hereafter executed and delivered pursuant to the terms
hereof or pursuant to the terms of the Agreement, as amended hereby, are hereby
amended so that any reference in such Loan Documents to the Agreement shall
mean a reference to the Agreement, as amended hereby.
Section 5.03. EXPENSES OF BANK. As provided in the Agreement,
Borrower agrees to pay on demand all reasonable costs and expenses incurred by
Bank in connection with the preparation, negotiation and execution of this
Amendment and the other Loan Documents executed pursuant hereto and any and all
amendments, modifications, and supplements thereto, including, without
limitation, the reasonable costs and fees of Bank's legal counsel, and all
reasonable costs and expenses incurred by Bank in connection with the
enforcement or preservation of any rights under the Agreement, as amended
hereby, or any other Loan Document, including, without limitation, the
reasonable costs and fees of Bank's legal counsel.
Section 5.04. SEVERABILITY. Any provision of this Amendment held by
a court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of this Amendment and the effect thereof
shall be confined to the provision so held to be invalid or unenforceable.
SECTION 5.05. APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN
DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE
PERFORMABLE IN DALLAS, TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
Section 5.06. SUCCESSORS AND ASSIGNS. This Amendment is binding upon
and shall inure to the benefit of Bank and Borrower and their respective
successors and assigns, except Borrower may not assign or transfer any of its
rights or obligations hereunder without prior written consent of Bank.
Section 5.07. COUNTERPARTS. This Amendment may be executed in one or
more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the
same instrument.
Section 5.08. EFFECT OF WAIVER. No consent or waiver, express or
implied, by Bank to or for any breach of or deviation from any covenant or
condition of the Agreement shall be deemed a consent or waiver to or of any
other breach of the same or any other covenant, condition or duty.
Section 5.09. HEADINGS. The headings, captions, and arrangements
used in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
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SECTION 5.10. FINAL AGREEMENT. THE AGREEMENT, AS AMENDED HEREBY AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OR THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
IN WITNESS WHEREOF, Borrower and Bank have caused this
Amendment to be executed on the date first written above by their duly
authorized officers.
BORROWER:
NEUTRAL POSTURE ERGONOMICS, INC.
By: /s/ XXXXXXX XXXXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxxxx Xxxxxxx
Chief Executive Officer
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
President
BANK:
COMERICA BANK - TEXAS
By: /s/ XXXXXXXX XXXXXXX
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Xxxxxxxx Xxxxxxx
Senior Vice President
