Exhibit 10.7
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of December 1, 1998, by and between XXXXXXX XXXXXX ASSOCIATES GROUP,
INC., a Delaware corporation, formerly known as XXXXXXX ASSOCIATES, INC., a
Delaware corporation ("Borrower"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION
("Bank").
RECITALS
WHEREAS, Borrower is currently indebted to Bank pursuant to the terms
and conditions of that certain Credit Agreement between Borrower and Bank dated
as of October 31, 1995, as amended from time to time ("Credit Agreement").
WHEREAS, Bank and Borrower have agreed to certain changes in the terms
and conditions set forth in the Credit Agreement and have agreed to amend the
Credit Agreement to reflect said changes.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree that the Credit
Agreement shall be amended as follows:
1. Section 1.1(a) is hereby amended by deleting "November 30, 1999" as
the last day on which Bank will make advances under the Line of Credit, and by
substituting for said date "November 30, 2000," with such change to be effective
upon the execution and delivery to Bank of a promissory note substantially in
the form of Exhibit A attached hereto (which promissory note shall replace and
be deemed the Line of Credit Note defined in and made pursuant to the Credit
Agreement) and all other contracts, instruments and documents required by Bank
to evidence such change.
2. Section 1.1(e) is hereby amended (a) by deleting "November 30, 1999"
as the last day on which bank will issue Letters of Credit under the subfeature
therefor under the Line of Credit, and by substituting for said date "November
30, 2000," and (b) by deleting "May 30, 2000" as the last date any such Letter
of Credit may expire, and by substituting for said date "April 30, 2001."
3. Section 1.2(a) is hereby deleted in its entirety, and the following
substituted therefor:
"(a) Foreign Exchange Facility.
Subject to the terms and conditions of this Agreement, Bank
hereby agrees to make available to Borrower a facility (the
"Foreign Exchange Facility") under which Bank, from time to
time up to and including November 30, 2000, will enter into
foreign exchange contracts for the account of Borrower for the
purchase and/or sale by Borrower in United States dollars of
foreign currencies designated by borrower provided however,
that the maximum amount of all outstanding foreign exchange
contracts shall not at any time exceed an aggregate of One
Million and No/100 United States Dollars (US$1,000,000.00). No
foreign exchange contract shall be executed for a term in
excess of three (3) months or for a term which extends beyond
November 30, 2000. Borrower shall have a "Delivery Limit"
under the Foreign Exchange Facility not to exceed at any time
the aggregate principal amount of Three Hundred Thousand and
No/100 United State Dollars (US$300,000.00), which Delivery
Limit reflects the maximum principal amount of Borrower's
foreign exchange contracts which may mature during any two (2)
day period. All foreign exchange transactions shall be subject
to the additional terms of a Foreign Exchange Agreement,
substantially in the form of Exhibit B attached hereto
("Foreign Exchange Agreement"), all terms of which are
incorporated herein by this reference."
4. The following is hereby added to the Credit Agreement as Section
4.10:
"SECTION 4.10. YEAR 2000 COMPLIANCE.
Perform all acts reasonably necessary to ensure that (a)
Borrower and any business in which Borrower holds a
substantial interest, and (b) all customers, suppliers and
vendors that are material to Borrower's business, become Year
2000 Compliant in a timely manner. Such acts shall include,
without limitation, performing a comprehensive review and
assessment of all of the Borrower's systems and adopting a
detailed plan, with itemized budget, for the remediation,
monitoring and testing of such systems. As used herein, "Year
2000 Compliant" shall mean, in regard to any entity, that all
software, hardware, firmware, equipment, goods or systems
utilized by or material to the business operations or
financial condition of such entity, will properly perform date
sensitive functions before, during and after the year 2000.
Borrower shall, immediately upon request, provide to Bank such
certifications or other evidence of Borrower's compliance with
the terms hereof as Bank may from time to time require."
5. Section 4.8(c) is hereby deleted in its entirety, and the following
substituted therefor:
"(c) Tangible Net Worth not at any time less than
$26,000,000.00 up to and including November 29, 1999 and as of
November 30, 1999 not less than $28,000,000.00 at any time
thereafter, with "Tangible Net Worth" defined as the aggregate
of total stockholders' equity plus subordinated debt less any
intangible assets."
6. Except as specifically provided herein, all terms and conditions of
the Credit Agreement remain in full force and effect, without waiver or
modification. All terms defined in the Credit Agreement shall have the same
meaning when used in this Amendment. This Amendment and the Credit Agreement
shall be read together, as one document.
7. Borrower hereby remakes all representations and warranties contained
in the Credit Agreement and reaffirms all covenants set forth therein. Borrower
further certifies that as of the date of this Amendment there exists no Event of
Default as defined in the Credit Agreement, nor any condition, act or event
which with the giving of notice or the passage of time or both would constitute
any such Event of Default.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first written above.
XXXXXXX XXXXXX ASSOCIATES XXXXX FARGO BANK,
GROUP, INC. NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxx Xxxxx Xxxxxxxx
Vice President/CFO Vice President
