FIRST
AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT, dated as of
November 30, 2007, amends and modifies a certain Credit
Agreement, dated as of October 2, 2007 (as so amended, the
“Credit Agreement”), among VARISTAR CORPORATION, a
Minnesota corporation (the “Borrower”), U.S. BANK
NATIONAL ASSOCIATION, as Agent (in such capacity, the
“Agent”), and the Banks, as defined therein. Terms not
otherwise expressly defined herein shall have the meanings set
forth in the Credit Agreement.
FOR VALUE RECEIVED, the Borrower, the
Agent and the Banks agree that the Credit Agreement is amended as
follows.
ARTICLE I — AMENDMENT TO THE CREDIT AGREEMENT
1.1 Other Agreements .
Section 9.5 is amended to read as follows:
“Section 9.5 Other
Agreements . Enter into any agreement, bond, note or other
instrument with or for the benefit of any Person other than the
Banks which would: (a) be violated or breached by the
Borrower’s performance of its obligations under the Loan
Documents, or (b) prohibit any Subsidiary of the Borrower from
paying dividends or distributions on, or redeeming, acquiring or
retiring for value, any shares of stock or other ownership interest
that the Borrower holds in such Subsidiary.”
For
convenience of reference, the change to such Section constitutes
deletion of the wording formerly in subsection (a) that had
read:
”(a) prohibit the Borrower or such Material Subsidiary
from granting, or otherwise limit the ability of the Borrower or
such Material Subsidiary to grant, to the Banks any Lien on any
assets or properties of the Borrower or such Material
Subsidiary;”
1.2 Indebtedness .
Section 9.8 is amended by deleting the period at the end of
subsection (h), adding “; and” and adding new
subsection (i), which shall read as follows:
”(i) Indebtedness consisting of guaranties expressly
permitted by Section 9.10 .”
1.3 Construction . All
references in the Credit Agreement to “this Agreement”,
“herein” and similar references shall be deemed to
refer to the Credit Agreement as amended by this Amendment.
ARTICLE II — REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Banks to
enter into this Amendment and to make and maintain the Loans under
the Credit Agreement as amended hereby, the Borrower hereby
warrants and represents to the Agent and the Banks that it is duly
authorized to execute and deliver this Amendment, and to perform
its obligations under the Credit Agreement as amended hereby,
and
that
this Amendment constitutes the legal, valid and binding agreement
of the Borrower, enforceable in accordance with its terms.
ARTICLE III — CONDITIONS PRECEDENT
This Amendment shall become effective
on the date first set forth above, provided, however, that the
effectiveness of this Amendment is subject to the satisfaction of
each of the following conditions precedent:
3.1 Warranties . Before and
after giving effect to this Amendment, the representations and
warranties in Article VII of the Credit Agreement shall
be true and correct as though made on the date hereof, except for
changes that are permitted by the terms of the Credit
Agreement
