EXHIBIT 10.1
EIGHTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
This Eighth Amendment, dated as of March 10, 1997, is made by
and between DAKOTAH, INCORPORATED, a South Dakota corporation (the "Borrower"),
and NORWEST BUSINESS CREDIT, INC., a Minnesota corporation (the "Lender").
Recitals
The Borrower and the Lender have entered into an Amended and
Restated Credit and Security Agreement dated as of August 17, 1995, as amended
by a First Amendment to Amended and Restated Credit and Security Agreement dated
as of October 5, 1995, a Second Amendment to Amended and Restated Credit and
Security Agreement dated as of November 15, 1995, a Third Amendment to Amended
and Restated Credit and Security Agreement dated as of March 15, 1996, a Fourth
Amendment to Amended and Restated Credit and Security Agreement dated as of June
14, 1996, a Fifth Amendment to Amended and Restated Credit and Security
Agreement dated as of July 11, 1996, a Sixth Amendment to Amended and Restated
Credit and Security Agreement dated as of September 11, 1996, and a Seventh
Amendment to Amended and Restated Credit and Security Agreement dated as of
January 17, 1997 (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 loan advances under the Credit Agreement are evidenced by
the Borrower's Second Replacement Revolving Note dated as of July 11, 1996, in
the maximum principal amount of $9,000,000 and payable to the order of the
Lender, and the Borrower's demand promissory note dated as of October 5, 1995,
in the maximum principal amount of $1,000,000 and payable to the order of the
Lender.
The Borrower has requested that the Lender, in its sole
discretion, increase the Inventory Cap for a temporary period. The Lender is
willing to grant the Borrower's request subject to the terms of this Eighth
Amendment.
NOW, THEREFORE, 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 Eighth
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:
"'Inventory Cap' means, during the calendar months of each
fiscal year described below, the amount set forth opposite such calendar month:
-------------------------- ------------------------- ---------------------------
Month Amount Amount
----- ------ ------
1997 1998 and each year
---- ------------------
thereafter
-------------------------- ------------------------- ---------------------------
March $2,300,000 $1,500,000
-------------------------- ------------------------- ---------------------------
April $2,500,000 $2,500,000
-------------------------- ------------------------- ---------------------------
May $4,000,000 $4,000,000
-------------------------- ------------------------- ---------------------------
June, July and August $4,500,000 $4,500,000
-------------------------- ------------------------- ---------------------------
September, October, $4,000,000 $4,000,000
and November
-------------------------- ------------------------- ---------------------------
December $2,000,000 $2,000,000
-------------------------- ------------------------- ---------------------------
"'Eighth Amendment' means that certain Eighth Amendment to
Amended and Restated Credit and Security Agreement dated as of March 10, 1997."
2. No Other Changes. Except as explicitly amended by this
Eighth 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.
3. Amendment Fee. The Borrower agrees to pay the Lender as of
the date hereof a fully earned, non-refundable fee in the amount of $1,000 in
consideration of the execution by the Lender of this Eighth Amendment.
4. Conditions Precedent. This Amendment shall be effective
when the Lender shall have received an executed original hereof, together with
each of the following, each in substance and form acceptable to the Lender in
its sole discretion:
(a) Consent of the Participant.
(b) A Certificate of the Secretary of the Borrower certifying
as to (1) the resolutions of the board of directors of the Borrower
approving the execution and delivery of this Eighth Amendment, (2) the
fact that the Articles of Incorporation and Bylaws of the Borrower,
which were certified and delivered to the Lender pursuant to the
Certificate of Authority of the Borrower's Secretary dated as of August
17, 1995 (the "Certificate of Authority") in connection with the
execution and delivery of the Credit Agreement continue in full force
and effect and have not been amended or otherwise modified except as
set forth in the Certificate to be delivered, and (3) certifying that
the officers and agents of the Borrower who have been certified to the
Lender, pursuant to the Certificate of Authority, as being authorized
to sign and to act on behalf of the Borrower continue to be so
authorized or setting forth the sample signatures of each of the
officers and agents of the Borrower authorized to execute and deliver
this Eighth Amendment and all other documents, agreements and
certificates on behalf of the Borrower.
(c) Payment of the fee described in paragraph 3.
(d) Such other matters as the Lender may require.
5. Representations and Warranties. The Borrower hereby
represents and warrants to the Lender as follows:
(a) The Borrower has all requisite power and authority to
execute this Eighth Amendment and to perform all of its obligations
hereunder, and this Eighth Amendment has been duly executed and
delivered by the Borrower and constitutes 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 Eighth 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.
6. 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 any other Loan Document to the Credit Agreement
shall be deemed to refer to the Credit Agreement as amended hereby.
7. No Waiver. The execution of this Eighth 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
Lender, whether or not known to the Lender and whether or not existing on the
date of this Eighth Amendment.
8. Release. The Borrower hereby absolutely and unconditionally
releases and forever discharges the Lender, and any and all 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 Eighth Amendment, whether such claims, demands and causes of
action are matured or unmatured.
9. Costs and Expenses. The Borrower hereby reaffirms its
agreement under the Credit Agreement to pay or reimburse the Lender on demand
for all costs and expenses incurred by the Lender 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 Lender
for the services performed by such counsel in connection with the preparation of
this Eighth Amendment and the documents and instruments incidental hereto. The
Borrower hereby agrees that the Lender 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.
10. Miscellaneous. This Eighth 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 Eighth
Amendment to be duly executed as of the date first written above.
DAKOTAH, INCORPORATED
By_______________________________________
Xxxx Xxxxx, Jr.
Its Chief Executive Officer
NORWEST BUSINESS CREDIT, INC.
By_______________________________________
Xxxxxx X. Xxxxxxx
Its Assistant Vice President
