Exhibit 10.1
AMENDMENT NO. 2 TO CREDIT AGREEMENT
This LIMITED WAIVER AND AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "Agreement")
is entered into as of July 1, 2008, by and among NORTH METRO HARNESS INITIATIVE,
LLC, a Minnesota limited liability company ("Borrower"), the other persons
designated as "Loan Parties" on the signature pages hereof, the financial
institutions who are or hereafter become parties to this Agreement as Lenders,
and BLACK DIAMOND COMMERCIAL FINANCE, L.L.C., a Delaware limited liability
company (in its individual capacity, "BDCF"), as Agent.
Unless otherwise
specified herein, capitalized terms used in this Agreement shall have the
meanings ascribed to them in the Credit Agreement (as hereinafter defined).
RECITALS
WHEREAS, Borrower, the other Loan Parties, Agent and Lenders have entered into
that certain Credit Agreement, dated as of April 20, 2007 (as amended, amended
and restated, supplemented or otherwise modified from time to time, the "Credit
Agreement");
WHEREAS, Borrower, Agent and Lenders have agreed to amend certain terms of the
Credit Agreement as described herein.
NOW THEREFORE, in consideration of the mutual execution hereof and other good
and valuable consideration, the parties hereto agree as follows:
SECTION 1.
AMENDMENTS TO CREDIT AGREEMENT.
SUBJECT TO THE
SATISFACTION OF THE CONDITIONS PRECEDENT SET FORTH IN SECTION 3 HEREOF, THE
CREDIT AGREEMENT IS HEREBY AMENDED AS FOLLOWS:
(A)
CLAUSE (L) OF THE DEFINITION OF "PERMITTED
ENCUMBRANCES" IS HEREBY AMENDED AND RESTATED TO READ IN ITS ENTIRETY AS FOLLOWS:
"(l) Liens arising pursuant to purchase money mortgages or
security interests securing Indebtedness representing the purchase price (or
financing of the purchase price within 90 days after the respective purchase) of
fixed assets acquired after the Closing Date, provided that (1) any such Liens
attach only to the assets so purchased, upgrades thereon and, if the asset so
purchased is an upgrade, the original asset itself (and such other assets
financed by the same financing source), (2) the Indebtedness (other than
Indebtedness incurred from the same financing source to purchase other assets
and excluding Indebtedness representing obligations to pay installation and
delivery charges for the property so purchased) secured by any such Lien
(a) does not exceed 100% of the lesser of the fair market value or the purchase
price of the property being purchased at the time of the incurrence of such
Indebtedness and (b) is not less than 75% of fair market value of the applicable
property and (3) the Indebtedness secured thereby is permitted to be incurred
pursuant to this Agreement;"
(B)
CLAUSE (O) OF THE DEFINITION OF "PERMITTED
ENCUMBRANCES" IS HEREBY AMENDED AND RESTATED TO READ IN ITS ENTIRETY AS FOLLOWS:
"(o) [reserved]; and"
(C)
SECTION 2.1(A) OF THE CREDIT AGREEMENT IS
HEREBY AMENDED BY ADDITION THE FOLLOWING NEW SENTENCE HERETO AT THE END OF SUCH
FIRST PARAGRAPH:
"(a)
Notwithstanding anything to the contrary contained herein, the
Borrower may borrow Advances, in an aggregate amount not to exceed $600,000, on
July 1, 2008 (and the provisions of (i) Section 2.1(b) (other than
Section 2.1(b)(iii)(C) and Section 2.1(b)(iii)(D)) shall