EXHIBIT 10.7
THIRD AMENDMENT TO CREDIT AGREEMENT
XXXXXX INVESTMENT CORPORATION, a Minnesota corporation ("Borrower") and
DIVERSIFIED BUSINESS CREDIT, INC. (formerly known as National City Business
Credit, Inc.), a Minnesota corporation ("Lender") previously entered into that
certain Credit Agreement dated as of November 18, 1986, as amended by that
certain Amendment to Credit Agreement dated June 2, 1993 and that certain
Amendment to Credit Agreement dated June 12, 1995 (collectively, the "Credit
Agreement"). The Borrower has requested and the Lender has agreed to alter,
amend and modify the Credit Agreement as hereinafter set forth. In consideration
of the foregoing, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. DEFINITIONS. The following capitalized terms have the meanings defined below.
All other capitalized terms used herein and not otherwise defined herein shall
have the meaning set forth in the Credit Agreement and/or the related Security
Documents.
"Advances" shall mean loans made by the Lender to the Borrower
hereunder and all existing loans made by the Lender to the Borrower.
"Base Rate" shall mean the rate of interest publicly announced by
National City Bank of Minneapolis from time to time its "BASE" rate (the Bank
may lend to its customers at rate that are at, above, or below the "BASE" rate).
"Basis" shall mean the total cost of the real estate determined in
accordance with GAAP and allocated to individual lots on the basis of selling
price of each lot as a percentage of the total estimated gross selling price of
the entire development.
"Book Net Worth" means the aggregate of the common stockholders' equity
of the Borrower, determined in accordance with GAAP.
"Default" shall mean any event which, with the giving of notice or
passage of time, or both, would constitute an Event of Default.
"Eligible Development Costs" shall mean, at the sole discretion of
Lender, those general costs of development of a particular project that meets
all the criteria for Eligible Real Estate Inventory, including without
limitation the costs of surveys, road construction and electrical service to the
project site, but shall not include costs of construction of structures on any
particular lot located within such project.
"Eligible Laurentian Property" shall mean real estate held for resale,
including land and improvements, that (a) is solely owned and developed by
Borrower's subsidiary Laurentian Development Corporation, (b) is subject to a
first priority mortgage in favor of Borrower in form acceptable to Lender
evidenced by a title insurance policy or an updated abstract of title acceptable
to Lender, which mortgage has been assigned by Borrower to Lender in form
acceptable to Lender, (c) is located in a development project that has been
approved by the Lender in its sole discretion; and (d) constitutes Collateral
that is as warranted in the Credit Agreement and Security Documents.
"Eligible Real Estate Inventory" shall mean land held for resale that
(a) is solely owned by the Borrower, (b) is subject to a first priority mortgage
in favor of the Lender in form acceptable to Lender evidenced by a title
insurance policy or an updated abstract of title acceptable to Lender; (c) is
located in a development project that has been approved by the Lender in its
sole discretion; and (d) constitutes Collateral that is as warranted in the
Credit Agreement and Security Documents.
"Eligible Receivables" shall mean any indebtedness owing to the
Borrower arising from the sale of property developed by the Borrower, which
indebtedness is solely owned by the Borrower and is subject to the perfected
security interests of the Lender at the time it comes into existence and
continues to meet the foregoing criteria until it is collected in full, provided
such mortgage loan or contract for deed meets each of the following
requirements:
a. Said indebtedness is secured by a mortgage or contract for deed
against the real estate property sold; and
b. Said mortgage or contract for deed constitutes a first priority lien
on the real estate property sold; and
c. Borrower has delivered to Lender evidence acceptable to Lender that
the mortgage or contract for deed constitutes a first priority lien
against the real estate property sold, in the form of a title insurance
policy or updated abstract of title; and
d. Borrower received (i) at least a ten percent (10%) down payment on
the sale of real estate constituting land only or (ii) at least a
fifteen percent (15%) down payment on the sale of real estate
constituting land and structures, or (iii) if the down payment was less
than required herein, the Borrower has received a down payment and
monthly payments that together total the required down payment herein
set forth; and
e. Borrower has provided to Lender a credit report on the buyer of the
real property and such credit report is satisfactory to the Lender, in
its sole discretion; and
f. Borrower has delivered to Lender with an original recorded
assignment of mortgage or contract for deed and has provided Lender
with a copy of Borrower's recorded mortgage or contract for deed; and
g. Borrower has provided Lender with an amortization schedule for said
indebtedness; and
h. The scheduled payments under said indebtedness are not more than two
payments or sixty (60) days past due; and
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i. Said indebtedness is not the subject of any payment dispute or
subject to claims or setoffs; and
j. The buyer of the real estate property resides in the United States
or Canada, or if the buyer is not a resident of the United States or
Canada then the buyer must be (i) a United States citizen who is either
employed outside of the United States and Canada or (ii) a member of
the United States armed services stationed outside of the United States
and Canada.
Provided, that any indebtedness owing to the Borrower shall not be an Eligible
Receivable if:
a. The sale is not an arms' length sale; or
b. Any indebtedness, sale, mortgage or contract for deed is declared
ineligible by Lender, in its reasonable discretion; by written notice
to Borrower.
c. The aggregate of indebtedness from any one buyer or any affiliate
thereof (that is, any Person that directly or indirectly controls, is
controlled by or is under common control with such buyer, or is an
officer, director, shareholder, joint venturer or partner of such
buyer) pertains to the purchase of more than five (5) lots; provided,
however, in the event more than five (5) lots are purchased by one
buyer and its affiliates, then Lender agrees to evaluate the credit
worthiness of such buyer to determine whether Lender, at its
discretion, will advance against such indebtedness so long as the
indebtedness is otherwise an Eligible Receivable; or
d. Such indebtedness is owing to Borrower from any Affiliate of
Borrower; or
e. Such indebtedness is not as warranted in the Credit Agreement and
Security Documents.
"Event of Default" shall have the meaning provided in Paragraph 6.
"GAAP" shall mean Generally Accepted Accounting Principles consistently
applied and maintained throughout the period indicated and consistent with the
financial statements delivered to Lender pursuant to Paragraph 3(n) of the
Credit Agreement. Whenever any accounting term is used herein which is not
otherwise defined, it shall be interpreted in accordance with GAAP.
Income" for any period shall mean income for such period, before income
taxes, determined in accordance with GAAP excluding, however, (1) extraordinary
gains, and (2) gains whether or not extraordinary from sales or other
dispositions of assets other than in the ordinary course of Borrower's business.
"Laurentian Borrowing Base" shall mean eighty percent (80%) of Eligible
Laurentian Property, provided the Laurentian Borrowing Base shall not exceed One
Million Dollars ($1,000,000.00).
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"Lender" shall mean Diversified Business Credit, Inc., a Minnesota
corporation, formerly known as National City Business Credit, Inc. ("NCBC"). All
references in the Credit Agreement to National City Business Credit, Inc. or to
NCBC shall mean the Lender.
"Liabilities" of any Person shall mean those items which, in accordance
with GAAP, would appear as Liabilities on a balance sheet.
"Material Adverse Occurrence" shall mean any occurrence of whatever
nature (including, without limitation, any adverse determination in any
litigation, arbitration or governmental investigation or proceeding) which
materially adversely affects the present or prospective financial condition,
business or operations of Borrower or impairs the ability of Borrower to perform
its Obligations under this Credit Agreement or any other Security Document.
"Maturity Date" shall mean December 31, 1997 or, as provided in
Paragraph 6 of this Third Amendment, any subsequent anniversary date thereof.
"Net Income" for any period shall mean Net Income for such period,
determined in accordance with GAAP excluding, however, (1) extraordinary gains,
and (2) gains whether or not extraordinary from sales or other dispositions of
assets other than the sale of Inventory in the ordinary course of Borrower's
business.
"Obligations" shall mean each and every debt, liability and obligation
of every type and description which Borrower may now or at any time hereafter
owe to the Lender (whether such debt, liability or obligation now exists or is
hereafter created or incurred, whether it arises in a transaction involving the
Lender alone or in a transaction involving other creditors of Borrower, and
whether it is direct or indirect, due or to become due, absolute or contingent,
primary or secondary, liquidated or unliquidated, or sole, joint, several or
joint and several, and including specifically, but not limited to, all
indebtedness of Borrower arising under any loan or credit agreement or guaranty
between Borrower and the Lender, whether now in effect or hereafter entered
into.
"Person" shall mean any natural person, corporation, firm, partnership,
association, government, governmental agency or any other entity, whether acting
in an individual, fiduciary or other capacity.
"Real Estate Borrowing Base" shall mean ninety percent (90%) of the
purchase price of Eligible Real Estate Inventory plus, at the Lender's sole
discretion, up to eighty percent (80%) of the Eligible Development Costs of
Eligible Real Estate Inventory, provided, however, the Real Estate Borrowing
Base shall not exceed Three Million Five Hundred Thousand Dollars
($3,500,000.00).
"Receivable Borrowing Base" shall mean ninety percent (90%) of Eligible
Receivables provided, however, the Receivable Borrowing Base shall not exceed
Nine Million Dollars ($9,000,000.00).
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"Senior Debt" shall mean all Liabilities of the Borrower including,
without limitation, lines of credit, notes payable, contracts and mortgages
payable, but shall exclude accounts payable, accrued liabilities, and
liabilities for deposits on land sales and purchase agreements.
"Subordinated Debt" shall mean indebtedness of Borrower for borrowed
money which is subordinated to the Obligations in writing on terms satisfactory
to Lender in its sole discretion.
"Tangible Net Worth" of Borrower shall mean the total of all assets
appearing on a balance sheet of Borrower, prepared in accordance with GAAP,
after deducting all proper reserves (including reserves for depreciation,
obsolescence and amortization) minus all Liabilities of Borrower; excluding,
however, from the determination of total assets: (i) goodwill, memberships,
trademarks, trade names, service marks, copyrights, patents, licenses,
organization expenses, research and development expenses, operating rights and
other similar intangibles; (ii) all deferred charges or unamortized debt
discount, except that deferred income taxes shall not be excluded; (iii)
treasury stock; (iv) securities that are not readily marketable; (v) any
write-up in the book value of any assets resulting from a revaluation thereof
subsequent to December 31, 1994; (vi) prepaid expenses; (vii) notes or
Receivables due from employees, officers, directors or shareholders; (viii)
notes or Receivables due from any Affiliate; (ix) all other intangible assets in
existence on the date of this Agreement and determined by Lender, in its
absolute discretion, to be intangible assets; and (x) any asset acquired
subsequent to the date of this Agreement which the Lender determines, in its
reasonable discretion, to be an intangible asset.
2. THE LOANS. The first two sentences of Paragraph 1 of the Credit Agreement are
hereby deleted therefrom in their entirety and the following is hereby inserted
in lieu thereof:
(a) RECEIVABLE REVOLVER LOAN FACILITY. Subject to the terms and
conditions of this Credit Agreement, Lender shall make Advances upon
the request of the Borrower pursuant to a Receivable Revolver Loan
Facility. Subject to Paragraph 3 of this Third Amendment, the maximum
aggregate principal amount of all Advances outstanding at any one time
under the Receivable Revolver Loan Facility shall not exceed the lower
of (i) Nine Million Dollars ($9,000,000.00) or (ii) the Receivable
Borrowing Base.
Borrower shall pay interest on all outstanding Advances under
the Receivable Revolver Facility at an annual rate (computed on the
basis of actual days elapsed in a 360-day year) which, for any
particular month, shall be the greater of (i) eight percent (8.0%) per
annum, or (ii) one percent (1.0%) per annum above the Base Rate,
provided, that in any event no rate change shall be put into effect
which would result in a rate greater than the highest rate permitted by
law. Each change in the interest rate shall take effect simultaneously
with the corresponding change in the Base Rate.
All interest shall accrue on the principal balance outstanding
from time to time and shall be payable monthly. Borrower agrees that
Lender may at any time or from time to time, without further request by
Borrower, make a loan to Borrower, or apply the proceeds of any loan,
for the purpose of paying all such interest promptly when due. In the
computation of interest, Lender may allow three banking days for the
collection of uncollected funds.
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Borrower shall reduce the principal balance of the Receivable
Revolver Loan Facility periodically by an amount determined by Lender
to fully amortize the Receivable Revolver Loan Facility.
The Receivable Revolver Loan Facility shall terminate
automatically upon the earlier of (i) the Maturity Date, or (ii) the
occurrence of a Default or an Event of Default, and the Lender's
obligations to make Advances thereunder shall, at Lender's sole
discretion, terminate.
(b) REAL ESTATE LOAN FACILITY. Subject to the terms and conditions of
this Credit Agreement, Lender shall make Advances upon the request of
the Borrower pursuant to a Real Estate Loan Facility. Subject to
Paragraph 3 of this Third Amendment, the maximum aggregate principal
amount of all Advances outstanding at any one time under the Real
Estate Loan Facility shall not exceed the lower of (i) Three Million
Five Hundred Dollars ($3,500,000.00) or (ii) the Real Estate Borrowing
Base or (iii) the aggregate principal amount of advances outstanding
under the Receivable Revolving Loan Facility, the Laurentian Loan
Facility and Supplemental Loan Facility, provided, however, during the
period from the date of this third Amendment until December 31, 1996,
the requirement contained in this 2(b)(iii) shall be waived.
Borrower shall pay interest on all outstanding Advances under
the Real Estate Loan Facility at an annual rate (computed on the basis
of actual days elapsed in a 360-day year) which, for any particular
month, shall be the greater of (i) eight percent (8.0%) per annum, or
(ii) one and one half percent (1.5%) per annum above the Base Rate,
provided, that in any event no rate change shall be put into effect
which would result in a rate greater than the highest rate permitted by
law. Each change in the interest rate shall take effect simultaneously
with the corresponding change in the Base Rate.
All interest shall accrue on the principal balance outstanding
from time to time and shall be payable monthly. Borrower agrees that
Lender may at any time or from time to time, without further request by
Borrower, make a loan to Borrower, or apply the proceeds of any loan,
for the purpose of paying all such interest promptly when due. In the
computation of interest, Lender may allow three banking days for the
collection of uncollected funds.
Upon the sale of any parcel of Eligible Real Estate Inventory,
Borrower shall immediately reduce the principal balance of the Real
Estate Loan Facility by an amount equal to the greater of (i) one
hundred twenty percent (120%) of the cost of such parcel of Eligible
Real Estate Inventory sold or (ii) such amount as shall be required by
Lender to assure itself that the entire loan balance pertaining to a
particular project shall be paid in full upon the sale of eighty
percent (80%) of the value of the Eligible Real Estate Inventory
constituting such project.
The Real Estate Loan Facility shall terminate automatically
upon the earlier of (i) the Maturity Date, or (ii) the occurrence of a
Default or an Event of Default, and the Lender's obligations to make
Advances hereunder shall, at Lender's sole discretion, terminate.
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(c) LAURENTIAN LOAN FACILITY. Subject to the terms and conditions of
this Credit Agreement, Lender shall make Advances upon the request of
the Borrower pursuant to a Laurentian Loan Facility. Subject to
Paragraph 3 of this Third Amendment, the maximum aggregate principal
amount of all Advances outstanding at any one time under the Laurentian
Loan Facility shall not exceed the lower of (i) One Million Dollars
($1,000,000.00) or (ii) the Laurentian Borrowing Base.
Borrower shall pay interest on all outstanding Advances under
the Laurentian Loan Facility at an annual rate (computed on the basis
of actual days elapsed in a 360-day year) which, for any particular
month, shall be the greater of (i) eight percent (8.0%) per annum, or
(ii) one and one half percent (1.5%) per annum above the Base Rate
provided, that in any event no rate change shall be put into effect
which would result in a rate greater than the highest rate permitted by
law. Each change in the interest rate shall take effect simultaneously
with the corresponding change in the Base Rate.
All interest shall accrue on the principal balance outstanding
from time to time and shall be payable monthly and in any event upon
demand. Borrower agrees that Lender may at any time or from time to
time, without further request by Borrower, make a loan to Borrower, or
apply the proceeds of any loan, for the purpose of paying all such
interest promptly when due. In the computation of interest, Lender may
allow three banking days for the collection of uncollected funds.
Upon the sale of any parcel of Eligible Laurentian Property,
Borrower shall immediately reduce the principal balance of the
Laurentian Loan Facility by one hundred percent (100%) of the cost to
Laurentian Development Corporation of Eligible Laurentian Property,
unless it is a sale of a time share arrangement and then the reduction
will be thirty percent (30%) of the sales price of the Eligible
Laurentian Property sold under the timeshare arrangement.
The Laurentian Loan Facility shall terminate automatically
upon the earlier of (i) the Maturity Date, or (ii) the occurrence of a
Default or an Event of Default, and the Lender's obligations to make
Advances hereunder shall, at Lender's discretion, terminate.
(d) SUPPLEMENTAL LOAN FACILITY. Subject to the terms and conditions of
this Credit Agreement, Lender shall make Advances upon the request of
the Borrower pursuant to a Supplemental Loan Facility. Subject to
Paragraph 3 of this Third Amendment, the maximum aggregate principal
amount of all Advances outstanding at any one time under the
Supplemental Loan Facility shall not exceed the lower of (i) Two
Million Dollars ($2,000,000.00) or (ii) twenty five percent (25%) of
the principal amount of Advances outstanding under the Receivable
Revolver Loan Facility, Real Estate Loan Facility, Laurentian Loan
Facility and Supplemental Loan Facility; provided, however, during the
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period from the date of this Third Amendment until December 31, 1996,
the requirement contained in subsection 2(d)(ii) shall be waived.
Borrower shall pay interest on all outstanding Advances under
the Supplemental Loan Facility at an annual rate (computed on the basis
of actual days elapsed in a 360-day year) which, for any particular
month, shall be the greater of (i) eight percent (8.0%) per annum, or
(ii) one and one half percent (1.5%) per annum above the Base Rate,
provided, that in any event no rate change shall be put into effect
which would result in a rate greater than the highest rate permitted by
law. Each change in the interest rate shall take effect simultaneously
with the corresponding change in the Base Rate.
All interest shall accrue on the principal balance outstanding
from time to time and shall be payable monthly and in any event upon
demand. Borrower agrees that Lender may at any time or from time to
time, without further request by Borrower, make a loan to Borrower, or
apply the proceeds of any loan, for the purpose of paying all such
interest promptly when due. In the computation of interest, Lender may
allow three banking days for the collection of uncollected funds.
The Supplemental Loan Facility shall terminate automatically
upon the earlier of (i) the Maturity Date, or (ii) the occurrence of a
Default or an Event of Default, and the Lender's obligations to make
Advances hereunder shall, at Lender's discretion, terminate.
3. OVER ADVANCES. Notwithstanding any other provision of this Credit Agreement,
if at any time the aggregate principal amount of Advances outstanding under this
Credit Agreement or any commitment hereunder shall exceed (i) Nine Million
Dollars ($9,000,000.00), or (ii) any other limitation set forth herein, the
Borrower shall immediately pay to the Lender the amount by which said principal
amount exceeds such limitation.
4. REMAINING PROVISIONS OF PARAGRAPH 1. Paragraph 1(d) of the Credit Agreement
is hereby deleted in its entirety. Except as set forth herein, or as previously
amended, the remaining terms and provisions of Paragraph 1 of the Credit
Agreement shall remain in full force and effect without modification, amendment
or alteration.
5. AFFIRMATIVE COVENANTS.
a. BORROWING BASE CERTIFICATES. The following is hereby inserted in the
Credit Agreement as Paragraph 4(e)(6):
4(e)(6) Within twenty-five (25) days after the end of each
fiscal month, and at other times upon the request of the
Lender, a borrowing base certificate and a covenant compliance
certificate, each in form and substance acceptable to the
Lender.
b. BOOK NET WORTH. Paragraph 4(h) of the Credit Agreement is hereby
deleted therefrom in its entirety and the following is hereby inserted
in lieu thereof:
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4(h) At all times maintain the Book Net Worth of Borrower at
amounts in excess of Four Million Seven Hundred Fifty Thousand
Dollars ($4,750,000.00) plus 50% of positive consolidated Net
Income after January 1, 1996 and maintain Borrower's Tangible
Net Worth (excluding all intangible assets designated by
Lender) at amounts in excess of Three Million Two Hundred
Fifty Thousand Dollars ($3,250,000.00).
c. DEBT LEVEL. The following is hereby inserted in the Credit Agreement
as Paragraph 4(j):
4(j) Maintain the ratio of Liabilities minus the outstanding
principal of Subordinated Debt to Tangible Net Worth at not
greater than a ratio of 4.0 to 1.0 at all times.
d. CASH AND CASH EQUIVALENTS PLUS INVENTORY PLUS CONTRACTS AND
MORTGAGES RECEIVABLE TO SENIOR DEBT. The following is hereby inserted
in the Credit Agreement as Paragraph 4(l):
4(l) Maintain the ratio of cash and cash equivalents plus
inventory plus contracts and mortgages receivable to Senior
Debt at not less than a ratio of 1.5 to 1.0 at all times.
6. EVENT OF DEFAULT. Paragraph 6 of the Credit Agreement is here by deleted in
its entirety and the following is inserted in lieu thereof:
6. DEFAULT AND REMEDIES. It shall be an Event of Default under this
Credit Agreement if any one of the following shall occur:
a. Borrower fails to make any payment required under this Credit
Agreement or any present or future supplements hereto or under any
other agreement between Borrower and the Lender, including the Security
Documents, when due, or if payable upon demand, upon demand; or
b. Borrower fails to observe or perform any covenant, condition or
agreement in this Credit Agreement, any of the other Security Documents
or in any other agreement between the Borrower and the Lender when and
as required; or
c. Any warranty, representation or statement made or furnished to the
Lender by or on behalf of Borrower proves to have been false in a
material respect when made or reaffirmed by the Borrower; or
d. Borrower becomes insolvent or Borrower generally fails to pay, or
admit in writing its inability to pay, its debts as they become due; or
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e. Borrower applies for, consents to, or acquiesces in, the appointment
of a trustee, receiver or other custodian for it or for any of its
property, or makes a general assignment for the benefit of creditors;
or, in the absence of such application, consent or acquiescence, a
trustee, receiver or other custodian is appointed for Borrower or for a
substantial part of Borrower's property; or
f. Any bankruptcy reorganization, debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution
or liquidation proceeding is commenced in respect of Borrower; or
g. Any judgments, writs, warrants of attachment, executions or similar
process (not covered by insurance) in the aggregate amount that exceeds
$25,000 is issued or levied against Borrower, or any of its assets and
is not released, vacated or fully bonded prior to any sale and in any
event within five days after its issue or levy; or
h. There is a Material Adverse Occurrence of the Borrower; or
Upon the occurrence of any Event of Default, all Obligations shall be
and become immediately due and payable, at the option of the Lender,
without any declaration, notice, presentment, protest, demand or
dishonor of any kind (all of which are hereby waived) and the
Borrower's ability to obtain any additional Advances under this Credit
Agreement shall be immediately and automatically terminated. Upon the
occurrence of an Event of Default, the Lender shall have all the rights
and remedies of a secured party under the Commercial Code, including,
without limitation, any and all rights and remedies provided under this
Credit Agreement. If Borrower is in good faith attempting to cure an
Event of Default which (i) is described in Section 6(g) hereof or (ii)
is an affirmative covenant described in Paragraph 4 of the Credit
Agreement (excluding Paragraphs 4(g), 4(h), 4(j) and 4(l), the
Obligations shall become due and payable only after the continuance of
such Event of Default for a period of fifteen (15) days; provided,
however, during said fifteen (15) day period, Borrower shall have no
ability to obtain additional Advances under the Credit Agreement.
7. TERMINATION. Paragraph 8 of the Credit Agreement is hereby deleted in its
entirety and the following inserted in lieu thereof:
8. TERMINATION. Borrower may terminate this Credit Agreement and
(subject to payment and performance of all outstanding secured
obligations) may obtain any release or termination of the Security
Documents to which Borrower is otherwise entitled by law, effective
only on the Maturity Date, or any subsequent anniversary date thereof,
and then only if Lender receives at least sixty (60) days prior written
notice of Borrower's intent to terminate this Credit Agreement
effective on such anniversary date. Lender may terminate this Credit
Agreement on the Maturity Date, or any subsequent anniversary date
thereof and as otherwise provided in Paragraph 6 of the Credit
Agreement relating to Defaults and Remedies. Upon any such termination,
all obligations of Borrower under this Agreement and the Security
Documents shall remain in full force and effect until all indebtedness
under this Agreement and all other debts, liabilities and obligations
of Borrower secured by the Security Documents or any other collateral
security have been fully paid and satisfied.
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8. WARRANTIES. Borrower hereby warrants and represents to Lender that (a) each
and all of the representations and warranties set forth and contained in the
Credit Agreement and Security Documents (as defined in the Credit Agreement) are
true, correct and complete in all respects as of the date hereof, and (b) no
Event of Default and no event, circumstance or condition which with the giving
of notice or the passage of time or both would constitute an Event of Default
under the Credit Agreement or Security Documents has occurred or is continuing
as of the date hereof.
9. NO WAIVER. Borrower acknowledges and agrees that by executing and delivering
this Agreement the Lender is not waiving any existing Event of Default, whether
known or unknown, or any event, circumstance or condition, whether known or
unknown, which with the giving of notice or the passage of time or both would
constitute an Event of Default nor is Lender waiving any of its rights or
remedies under the Credit Agreement or Security Documents.
10. NO DEFENSE, COUNTERCLAIM AND/OR SETOFF. Borrower hereby acknowledges and
agrees with Lender that no events, conditions or circumstances have arisen or
exist as of the date hereof which would give Borrower the right to assert a
defense, counterclaim and/or setoff to any claim by Lender for payment of
amounts due under the Credit Agreement or Security Documents.
11. RELEASE. Borrower hereby releases Lender and each of its officers,
directors, agents, employees, legal counsel and other representatives from any
and all claims, demands, causes of action, liability, damage, loss, costs and
expenses which it has paid, incurred or sustained, or believes it has paid,
incurred or sustained, known or unknown, absolute or contingent, liquidated or
unliquidated, as a result of or related to (a) the transactions evidenced by or
related to the Credit Agreement and Security Documents, (b) any acts or
omissions of the Lender or any of its officers, directors, agents, employees,
legal counsel or other representatives in connection therewith or related
thereto, or (c) the extension or denial of credit under the Credit Agreement or
Security Documents; provided, however, this release shall not extend to willful
or malicious acts or omissions of Lender or any of its representatives.
12. NO OTHER AMENDMENT. Except as expressly amended hereby or previously amended
in writing, the Credit Agreement and Security Documents shall remain in full
force and effect in accordance with their original terms and binding upon and
enforceable against Borrower, and not subject to any defense, counterclaim or
right of setoff.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Third Amendment as of September 30, 1996.
XXXXXX INVESTMENT CORPORATION
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Its President
DIVERSIFIED BUSINESS CREDIT, INC.
By /s/
-------------------------------------
Its Vice President
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CONSENT OF GUARANTOR
The undersigned consents to this Third Amendment and all previous Amendments and
acknowledges and agrees that the guarantee of the Indebtedness and Obligations
of Borrower as set forth in the Guaranty dated November 18, 1986 is in full
force and effect in accordance with the original terms and binding upon and
enforceable against the undersigned, not subject to any defense, counterclaim or
right of setoff.
Dated: September 30, 1996
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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