SECOND AMENDMENT TO CREDIT AND SECURITY AGREEMENT
This Amendment, dated as of March 4, 1999, is made by and among
Xxxxxxxx, Inc., a Minnesota corporation (the "Borrower"), NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association ("Norwest";
in its separate capacity as administrative agent for the Lenders, the
"Agent"), and each of the financial institutions appearing on the signature
pages hereof.
Recitals
The Borrower, the Agent and the Lenders are parties to a Credit
and Security Agreement dated as of June 19, 1998, as amended by a First
Amendment to Credit and Security Agreement dated as of November 25, 1999 (the
"Credit Agreement"). Capitalized terms used in these recitals and in the
preamble have the meanings given to them in the Credit Agreement unless
otherwise specified.
The Borrower received Net Equity Proceeds of $8,000,000 on or
before March 8, 1999, and has requested that the Lenders delete Section
8.1(q) of the Credit Agreement. The Required Lenders are willing to grant the
Borrower's request subject to the terms of this Agreement.
Accordingly, 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 8.1(q). Section 8.1(q) of the Credit Agreement is
deleted.
3. Representations and Warranties. The Borrower hereby
represents and warrants to the Lenders 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 constitute 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 have been duly authorized by all necessary corporate
action and do 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 the
articles of incorporation or by-laws of 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.
4. References. All references in the Credit Agreement to "this
Agreement" shall be deemed to refer to the Credit 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.
5. No Other Waiver. The execution of this Amendment and
acceptance of 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 Lenders, whether or not known to the Lenders and whether or not
existing on the date of this Amendment.
6. Release. The Borrower hereby absolutely and unconditionally
releases and forever discharges the Lenders, 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 has had, now has or has made claim 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.
7. Costs and Expenses. The Borrower hereby reaffirms its
agreement under the Credit Agreement to pay or reimburse the Lenders on
demand for all costs and expenses incurred by the Lenders 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 Lenders 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 Lenders
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.
8. Miscellaneous. This Amendment 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.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed as of the date first written above.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Agent
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Its Vice President
XXXXXXXX, INC.
By /s/ Xxxx X. XxXxxxx
Xxxx X. XxXxxxx
Its Vice President of Finance
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Its Vice President
XXXXXX TRUST AND SAVINGS BANK
By /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Its Vice President
THE CIT GROUP/EQUIPMENT
FINANCING, INC.
By /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Its Assistant Vice President
