FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT (this "Amendment") dated as of April 10,
1995, amends and modifies that certain Credit Agreement, dated as
of October 1, 1990, as amended pursuant to Amendments dated as of
June 12, 1992, December 31, 1992, November 8, 1993 and February 8,
1994 (as so amended, the "Credit Agreement"), between GRACO INC., a
Minnesota corporation (the "Company") and FIRST NATIONAL
ASSOCIATION (the "Bank"). Terms not otherwise expressly defined
herein shall have the meanings set forth in the Credit Agreement.
FOR VALUE RECEIVED, the Company and the Bank agree that the
Credit Agreement is amended as follows.
ARTICLE I - AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Defined Terms. Section 1.01 is amended as follows:
(a) The definition of "Applicable Margin" is amended by
deleting column (d) from the chart in such Section (which
had provided an Applicable Margin for Federal Funds Rate
Loans).
(b) The definitions of "Federal Funds Rate", and
"Federal Funds Rate Loan" are deleted. Any further
reference to Federal Funds Rate and Federal Funds Rate
Loans not otherwise expressly amended herein shall be
deemed to refer to the Daily Rate and Daily Rate Loans.
(c) Definitions of "Daily Rate" and "Daily Rate Loans"
are added and shall read as follows:
"Daily Rate": For any day upon which a Daily Rate
Loan is outstanding, a rate per annum (rounded upward, if
necessary, to the nearest 1/16 of 1%) determined pursuant
to the following formula, which rate shall continue in
effect until the next succeeding Business Day:
( LIBO Rate )
Daily Rate = (-------------------) plus 0.20%
(1.00-Eurocurrency Reserve )
Percentage
In such formula, (I) "Eurocurrency Reserve Percentage"
means the percentage (expressed as a decimal) for such
day prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining reserve
requirements applicable to "Eurocurrency liabilities"
pursuant to Regulation D or any other applicable
regulation of the Board of Governors which prescribes
such reserve requirements, and (ii) "LIBO Rate" means the
offered rate for deposits in United State Dollars
(rounded upwards, if necessary, to the nearest 1/16 of
1%), for delivery of such deposits two eurodollar
business days after such day, for an interest period of
one month, which appears on the Reuters Screen LIBO Page
as of the time selected by the Bank on such day. If at
least two rates appear on the Reuters Screen LIBO Page,
the rate shall be the arithmetic mean of such rates
(rounded as provided above). If fewer than two rates
appear, the rate may be determined by the Bank based on
other services selected for such purpose by the Bank or
based on rates offered to the Bank for United States
Dollar deposits in the interbank eurodollar market.
"Reuters Screen LIBO Page" means the display designated
as page "LIBO" on the Reuter Monitor Money Rates Service
(or such other page as may replace the LIBO Page on that
service for the purpose of displaying London interbank
offered rates of major banks for United States Dollar
deposits).
"`Daily Rate Loans': Loans bearing interest at the Daily
Rate."
(d) The definition of "Interest Payment Date" is amended
by amending subparagraph (c) thereof to read as follows:
"and (c) Daily Rate Loans, the next Business Day."
(e) The definition of "Permitted Interest Rate" is
amended by amending subparagraph (iv) thereof to read as follows:
"and (iv) Daily Rate "
1.2 Revolving Credit Commitment. Section 2.01(a) is
amended by deleting "$15,000,000" and inserting in place thereof
"$25,000,000".
1.3 Interest. Section 2.03 is amended by amending
subsection (d) to read as follows:
"(d) During such period as any such Loan is a
Daily Rate Loan, a rate equal to the Daily Rate from time
to time in effect."
1.4 Note. A promissory note substantially in the form
of Exhibit AA to this Amendment shall be executed and
delivered by the Borrower and shall be and constitute the
"Graco Revolving Credit Note", and one of the "Revolving
Credit Notes" and "Notes" for purposes of all references
thereto in the Credit Agreement.
1.5 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 Bank to enter into this Amendment and
to make and maintain the Loans under the Credit Agreement as
amended hereby, the Company hereby warrants and represents to
the Bank 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 obligation of the
Company, 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 Section 6 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. The execution by the
Borrower of this Amendment shall be deemed a representation
that the Borrower has compiled with the foregoing condition.
3.2 Defaults. Before and after giving effect to this
Amendment, no Event of Default and no Unmatured Event of
Default shall have occurred and be continuing under the Credit
Agreement. The execution by the Borrower of this Amendment
shall be deemed a representation that the Borrower has
complied with the foregoing condition.
3.3 Documents. The following shall have been delivered
to the Bank, each duly executed and dated, or certified, as of
the date hereof, as the case may be:
(a) Note. The Note in the form of Exhibit AA to this
Amendment.
(b) Resolutions. Certified copies of resolutions of the
Board of Directors of the Borrower authorizing or ratifying
the execution, delivery and performance, respectively, of this
Amendment, the Note and other documents provided for in this
Amendment, together with an incumbency certificate of officers
executing this Amendment and the Note:
ARTICLE IV - GENERAL
4.1 Expenses. The Company agrees to reimburse the Bank
upon demand for all reasonable expenses, including reasonable
fees of attorneys (who may be employees of the Bank) and legal
expenses incurred by the Bank in the preparation, negotiation
and execution of this Amendment and any other document
required to be furnished herewith, and in enforcing the
obligations of the Company hereunder, and to pay and save the
Bank harmless from all liability for, any taxes which may be
payable with respect to the execution or delivery of this
Amendment or the issuance of the Note hereunder, which
obligations of the Company shall survive any termination of
the Credit Agreement.
4.2 Counterparts. This amendment may be executed in as
many counterparts as may be deemed necessary or convenient,
and by the different parties hereto on separate counterparts,
each of which, when so executed, shall be deemed an original
but all such counterparts shall constitute but one and the
same instrument.
4.3 Severability. Any provision of this Amendment which
is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
4.4 Law. This Amendment shall be a contract made under
the laws of the State of Minnesota, which laws shall govern
all the rights and duties hereunder.
4.5 Successors; Enforceability. The Amendment shall be
binding upon the Borrower and the Bank and their respective
successors and assigns, and shall inure to the benefit of the
Company and the Bank and the successors and assigns of the
Bank. Except as hereby amended, the Credit Agreement shall
remain in full force and effect and is hereby ratified and
confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed at Minneapolis, Minnesota by their
respective officers thereunto duly authorized as of the date
first written above.
GRACO INC.
By: /s/Xxxxx X. Xxxx
Title: Treasurer
FIRST BANK NATIONAL ASSOCIATION
By: Xxxx Xxxxxxxxx
Title: Commercial Banking Officer
EXHIBIT AA
PROMISSORY NOTE
(Revolving Credit Note)
$25,000,000 April 10, 0000
Xxxxxxxxxxx, Xxxxxxxxx
FOR VALUE RECEIVED, GRACO INC., a Minnesota corporation,
hereby promises to pay to the order of FIRST BANK NATIONAL
ASSOCIATION (the "Bank") at its main office at 000 0xx Xxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, the lessor of the principal
amount of TWENTY FIVE MILLION DOLLARS ($25,000,000) or the
aggregate unpaid principal amount of all Loans made to the
undersigned by the Bank under the Revolving Credit Commitment (as
such term and each other capitalized term used herein is defined in
the Credit Agreement hereinafter referred to), together with
interest (computed on the basis of the actual number of days
elapsed and a year of 360 days) on any and all unpaid principal
amounts from time to time outstanding hereunder in the currency and
at the times and interest rates provided for in the Credit
Agreement.
The Bank is hereby authorized by the undersigned to endorse on
the schedule attached to this note the amount and type of, and the
duration of each Interest Period (if applicable) for, each Loan
made to the undersigned by the Bank under the Revolving Credit
Commitment, the date such Loan is made or continued or converted
from a Loan of another type, and the amount of each payment or
prepayment of principal of such Loan received by the Bank, provided
that any failure by the Bank to make any such endorsement shall not
affect the obligations of the undersigned hereunder or under the
Credit Agreement in respect of such Loans.
This note is one of the Revolving Credit Notes referred to in,
and is entitled to the benefits of , the Credit Agreement dated as
of October 1, 1990 between the undersigned and the Bank (as the
same has been, and may hereafter be, amended, modified,
supplemented or restated from time to time, the "Credit
Agreement"). This note is subject to certain permissive and
mandatory prepayments and its maturity is subject to acceleration,
in each case upon the terms provided in the Credit Agreement. This
note continues and evidences principal indebtedness outstanding
under that certain Promissory Note (Revolving Credit Note) dated
October 1, 1990, by the undersigned to the order of the Bank in the
original principal amount of $15,000,000 ("Existing Note"),
provided that any principal of or interest on and other obligations
under the Existing Note accrued prior to the date of this note but
remaining unpaid on the date of this note shall not be deemed
discharged and shall be due and payable in advance with the terms
of this note and the Credit Agreement.
This note shall be construed in accordance with the internal
law, and law of conflicts, of the State of Minnesota. In the event
of default hereunder, the undersigned agrees to pay all costs and
expenses of collection, including reasonable attorneys' fees.
GRACO INC.
By: /s/ Xxxxx X. Xxxx
Title: Treasurer
