FIFTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT
This Amendment, dated as of _______________, 2000, 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, 1998, a
Second Amendment to Credit and Security Agreement dated as of March 31, 1999,
a Third Amendment to Credit and Security Agreement dated as of April 5, 1999,
a Fourth Amendment to Credit and Security Agreement dated as of November ___,
1999 (as so amended, the "Credit Agreement"). Capitalized terms used in these
recitals have the meanings given to them in the Credit Agreement unless
otherwise specified.
The Borrower has requested that the Agent and the Lenders extend
the Maturity Date for the facilities to December 1, 2001. The Agent and the
Lenders are willing to grant the Borrower's requests pursuant to the terms and
conditions set forth herein.
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. In addition, Section 1.1 of
the Credit Agreement is amended by adding or amending, as the case may be, the
following definitions:
"`Maturity Date' means December 1, 2001."
2. Permitted Investments. Section 7.4(a) of the Credit
Agreement is amended as follows by amending clause (v) to read as follows:
"(v) the Borrower's investment in Sidrabe in the approximate
amount of $625,000;"
3. No Other Changes. Except as explicitly amended by this
Amendment, all of the terms and conditions of the Credit Agreement shall
remain in full force and effect and shall apply to any advance or letter of
credit thereunder.
4. Amendment Fee. The Borrower shall pay the Lenders as of the
date hereof a fully earned, non-refundable fee in the amount of $42,500 in
consideration of the Lenders' execution of this Amendment.
5. Conditions Precedent. This Amendment shall be effective when
the Agent shall have received an executed original hereof, together with each
of the following, each in substance and form acceptable to the Agent in its
sole discretion:
(a) Payment of the fee described in Paragraph 4.
(b) Such other matters as the Lender may require.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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 and the fee required under paragraph 4 hereof.
11. 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. Xxxxxx
Xxxxx X. Xxxxxx
Its Vice President
XXXXXXXX, INC.
By /s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
Its Chief Financial Officer
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Its Vice President
THE CIT GROUP/EQUIPMENT
FINANCING, INC.
By /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Its Assistant Vice President
