SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), made and entered into as of March 3, 2003, is by and between
WTC Industries, Inc., a Delaware corporation, Pentapure Incorporated, a
Minnesota corporation, (collectively, the "Borrowers"), and U.S. Bank National
Association, a national banking association (the "Lender").
RECITALS
1. The Lender and the Borrowers entered into an Amended and
Restated Credit Agreement dated as of February 27, 2002 as amended by a First
Amendment to Amended and Restated Credit Agreement dated as of June 24, 2002 (as
amended, the "Credit Agreement"); and
2. The Borrowers desires to amend certain provisions of the
Credit Agreement, and the Lender has agreed to make such amendments, subject to
the terms and conditions set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
covenant and agree to be bound as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to them in the
Credit Agreement, unless the context shall otherwise require.
SECTION 2. AMENDMENTS. The Credit Agreement is hereby
amended as follows:
2.1 DEFINITIONS. Section 1.1 of the Credit Agreement is
amended by inserting the following new definitions therein in correct
alphabetical order:
"Advancing Term Loan (2003)": As defined in Section 2.1(c).
"Advancing Term Loan (2003) Commitment Amount": As defined in
Section 2.1(c).
"Advancing Term Note (2003)": As defined in Section 2.3.
"Applicable Fee Percentage": Subject to the last two sentences
of this definition, with respect to the period beginning on the day after the
compliance certificate required by Section 5.1(c) with respect to the last
fiscal quarter is delivered and ending on the date the compliance certificate
with respect to the last fiscal month of the next fiscal quarter is required to
be delivered, shall mean the "Applicable Fee Percentage" specified in the table
below for the
Cash Flow Leverage Ratio calculated as of the end of the fiscal quarter
reflected in such delivered compliance certificate:
Cash Flow Applicable
Leverage Ratio Fee Percentage
-------------- --------------
Less than 2.0 to 1.0 but
greater than or equal to 1.75 to 1.0 0.250%
Less than 1.75 to 1.0 0.125%
For the period beginning on the date of the Second Amendment
and ending on the earlier of the date the compliance certificate required by
Section 5.1(c) with respect to the month ending March 31, 2003 is actually, or
is required to be, delivered, the Applicable Fee Percentage shall be 0.125%. For
any period beginning on a day the compliance certificate required by Section
5.1(c) with respect to the last fiscal quarter is required to be but is not
delivered and ending on the date such compliance certificate is delivered, the
Applicable Fee Percentage shall be 0.250%.
"Applicable Margin": Subject to the last two sentences of this
definition, with respect to the period beginning on the day after the compliance
certificate required by Section 5.1(c) with respect to the last fiscal quarter
is delivered and ending on the date the compliance certificate with respect to
the last fiscal month of the next fiscal quarter is required to be delivered,
shall mean, the "Applicable Margin" specified in the table below for the Cash
Flow Leverage Ratio calculated as of the end of the Cash Flow Leverage Ratio
Measurement Period reflected in such delivered compliance certificate:
Cash Flow Applicable
Leverage Ratio Margin
-------------- ------
Less than 2.00 to 1.0 but
greater than or equal to 1.75 to 1.0 2.25%
Less than 1.75 to 1.0 but
greater than or equal to 1.0 to 1.0 1.75%
Less than 1.0 to 1.0 1.50%
For the period beginning on the date of the Second Amendment
and ending on the earlier of the date the compliance certificate required by
Section 5.1(c) with respect to the month ending on or about March 31, 2003 is
actually, or is required to be, delivered, the Applicable Margin shall be 1.75%
.. For any period beginning on a day the compliance required by Section 5.1(c)
with respect to the last fiscal quarter is required to be but is not delivered
and ending on the date such compliance certificate is delivered, the Applicable
Margin shall be 2.25%.
"Consolidated Term Loan": As defined in Section 2.1(b).
"Consolidated Term Loan Commitment Amount": As defined in
Section 2.1(b).
2
"Consolidated Term Note": As defined in Section 2.3.
"Second Amendment": That certain Second Amendment to Amended
and Restated Credit Agreement dated as of March 3, 2003.
Section 1.1 of the Credit Agreement is further amended by
amending the definition of "Notes", "Term Loans" and "Term Notes" in their
entireties to read as follows:
"Notes": The Revolving Note, the Consolidated Term Note and
the Advancing Term Note (2003), and any note hereafter issued under this
Agreement, and as each of the same may be modified, amended, extended or renewed
from time to time.
"Term Loans": Unless the context otherwise clearly requires,
the use of the plural "Term Loans" shall mean, collectively, the Consolidated
Term Loan and the Advancing Term Loan (2003).
"Term Notes": Unless the context otherwise clearly requires,
the use of the plural "Term Notes" shall mean, collectively, the Consolidated
Term Note and the Advancing Term Note (2003).
2.2 SECTIONS 2.1 THROUGH 2.4 OF THE CREDIT AGREEMENT. Sections
2.1 through 2.4 of the Credit Agreement are amended in their entireties
to read as follows:
Section 2.1 The Commitments. On the terms and subject to the
conditions hereof, the Lender agrees to make the following lending facilities
available to the Borrowers:
2.1 (a) Revolving Credit. A revolving loan (the
"Revolving Loan") to the Borrowers available as Advances at any time and from
time to time from the Closing Date to May 1, 2005 (the "Revolving Maturity
Date"), during which period a Borrower may borrow, repay and reborrow in
accordance with the provisions hereof, provided, that the unpaid principal
amount of revolving Advances shall not at any time exceed $5,000,000 (the
"Revolving Commitment Amount"); and provided, further, that no revolving Advance
will be made if, after giving effect thereto, Total Revolving Outstandings would
exceed the Borrowing Base.
2.1(b) Consolidated Term Loan. On the effective date
of the Second Amendment the outstanding principal balances of the Term Loan, the
Term Loan A, the Term Loan B and the Advancing Term Loan shall be consolidated
into one term loan (the "Consolidated Term Loan") in the original principal
amount of $7,400,000 (the "Consolidated Term Loan Commitment Amount"). The
Consolidated Term Loan refinances and replaces the Term Loan, the Term Loan A,
the Term Loan B and the Advancing Term Loan.
2.1(c) ) Advancing Term Loan (2003). A term loan,
available in multiple Advances (the "Advancing Term Loan (2003)") from the date
of a Borrower's first request for an Advance thereunder through December 31,
2003, in an aggregate principal amount not to exceed $3,000,000 (the "Advancing
Term Loan (2003) Commitment Amount").
3
2.1(d) Joint and Several Liability. The obligations
of each Borrower hereunder and
under the Revolving Note, the Term Notes and any other documents executed by it
in connection with loans made under this Agreement shall be joint and several;
provided that in no event shall the amount payable by any such Borrower exceed
an aggregate amount equal to the largest amount that would not render such
Borrower's obligations subject to avoidance under Section 548 of the United
States Bankruptcy Code or any applicable provision of comparable state law.
Section 2.2 Procedure for Advances and the Term Loan. Any
request by a Borrower for an Advance on the Revolving Loan or the Advancing Term
Loan (2003) shall be in writing or by telephone and must be given so as to be
received by the Lender not later than 2:00 (St. Xxxx, Minnesota time) on the
requested Advance date. Each request for an Advance shall be irrevocable and
shall be deemed a representation by the Borrowers that on the requested Advance
date and after giving effect to such Advance the applicable conditions specified
in Article III have been and will continue to be satisfied. Each request for an
Advance shall specify (i) the requested Advance date (which must be a Eurodollar
Business Day), and (ii) the amount of such Advance (A) which shall be in a
minimum amount of $10,000 or, if more, an integral multiple thereof for Advances
on the Revolving Loan, and (B) which shall be in a minimum amount of $1,000,000
for the initial Advance on the Advancing Term Loan (2003) and thereafter in a
minimum amount equal to the lesser of $1,000,000 or the amount that remains
available to be Advanced under the Advancing Term Loan (2003). Unless the Lender
determines that any applicable condition specified in Article III has not been
satisfied, the Lender will make available to the Borrowers at the Lender's
principal office in St. Xxxx, Minnesota in immediately available funds not later
than 3:00 PM (St. Xxxx time) on the requested Advance date the amount of the
requested Advance. On the date of the Second Amendment, unless the Lender
determines that any applicable condition specified in Section 3 of the Second
Amendment has not been satisfied, the Lender will make available to the
Borrowers at the Lender's principal office in St. Xxxx, Minnesota in immediately
available funds, not later the 3:00 PM (St. Xxxx time) the principal amount of
the Consolidated Term Loan for the purpose of consolidating and refinancing the
Term Loan, Term Loan A, Term Loan B and the Advancing Term Loan.
Section 2.3 The Notes. The Advances on the Revolving Loan
shall be evidenced by a single promissory note of the Borrower (the "Revolving
Note"), substantially in the form of Exhibit 2.3(a) hereto, in the amount of the
Revolving Commitment Amount originally in effect. The Consolidated Term Loan
shall be evidenced by a promissory note (the "Consolidated Term Note"),
substantially in the form of Exhibit 2.3(b) hereto, in an amount equal to the
Consolidated Term Loan Commitment Amount. The Advancing Term Loan (2003) shall
be evidenced by a promissory note (the "Advancing Term Note (2003)"),
substantially in the form of Exhibit 2.3(c) hereto, in an amount equal to the
Advancing Term Loan (2003) Commitment Amount. The Borrower shall execute and
deliver the Advancing Term Note (2003) on or prior to the date of the first
Advance thereunder. The Lender shall enter in its ledgers and records the amount
of each Advance made and the payments made thereon, and the Lender is authorized
by the Borrower to enter on a schedule attached to the Notes a record of such
Advances and payments.
Section 2.4 Interest Rates, Interest Payments and Default
Interest. Interest shall accrue and be payable on the Advances and the Term
Loans as follows:
4
2.4 (a) Each Advance on the Revolving Loan shall bear
interest on the unpaid principal
amount thereof at a rate per annum equal to the sum of (i) the Adjusted
Eurodollar Rate, plus (ii) the Applicable Margin.
2.4 (b) Each Advance on the Term Loans shall bear
interest on the unpaid principal
amount thereof at a rate per annum equal to the sum of (i) the Adjusted
Eurodollar Rate, plus (ii) the Applicable Margin.
2.4 (c) Upon the happening of any Event of Default
and during the continuance thereof, each Advance and the Term Loans, as
applicable, shall, at the option of the Lender, bear interest at the rate
otherwise applicable thereto, plus 2.0%.
2.4 (d) Interest shall be payable on all Advances and
on the Term Loans, as applicable, on the first day of each month commencing
April 1, 2003 and on the first day of each month thereafter and on the Revolving
Maturity Date for Revolving Loans and on maturity of the Consolidated Term Loan
and the Advancing Term Loan (2003), as applicable; provided that interest under
clause (c) shall be payable on demand.
2.3 REPAYMENT. Section 2.6 of the Credit Agreement is amended
to read in its entirety as follows:
Section 2.6 Repayment.
2.6 (a) Repayment of the Revolving Note. Principal of
the Revolving Note shall be payable in full on the Revolving Maturity Date;
provided, nevertheless that the Borrower shall reduce the outstanding principal
balance on the Revolving Note to zero for a period of not less than thirty (30)
consecutive days in each calendar year.
2.6 (b) Repayment of the Consolidated Term Note.
Principal of the Consolidated Term Note is payable as provided in the
Consolidated Term Note.
2.6(c) Repayment of Advancing Term Note (2003).
Principal of the Advancing Term Note
(2003) is payable as provided in Advancing Term Note (2003).
2.4 REVOLVING COMMITMENT FEE AND ORIGINATION FEE ON THE
ADVANCING TERM LOAN (2003). Section 2.9 of the Credit Agreement is
amended in its entirety to read as follows:
Section 2.9 Revolving Commitment Fee and Origination Fee on
the Advancing Term Loan (2003).
2.9(a) Revolving Commitment Fees. The Borrowers shall
pay to the Lender fees (the "Revolving Commitment Fees") in an amount determined
by applying the Applicable Fee Percentage then in effect to the average daily
unused Revolving Commitment Amount for the period from the date of the Second
Amendment to the Revolving Maturity Date. Such Revolving Commitment Fees are
payable in arrears monthly on the last day of each month and on the Revolving
Maturity Date.
5
2.9(b) Origination Fee for Advancing Term Loan
(2003). On the date of each Advance on the Advancing Term Loan (2003) the
Borrower shall pay to the Lender a fee (the "Origination Fee") equal to 0.50% of
the amount of such Advance.
2.5 USE OF PROCEEDS. Section 2.12 of the Credit Agreement is
amended by deleting everything after the first two sentences thereof inserting
the following in place thereof:
The proceeds of the Consolidated Term Loan shall be used to
refinance and replace the Term Loan, the Term Loan A, the Term Loan B
and the Advancing Term Loan. The proceeds of the Advancing Term Loan
(2003) shall be used to purchase equipment.
2.6 REPORTS. Section 5.1(c) is amended to read as follows:
5.1 (c) As soon as practicable and in any event
within 30 days after the end of each fiscal quarter, a compliance certificate in
the form provided and a statement signed by the chief financial officer of the
Borrowers stating that as at the end of such fiscal quarter there did not exist
any Default or Event of Default or, if such Default or Event of Default existed,
specifying the nature and period of existence thereof and what action the
Borrower proposes to take with respect thereto.
2.7 OTHER INDEBTEDNESS. Section 6.4 of the Credit Agreement is
amended to read in its entirety as follows:
Section 6.4 Indebtedness. Each Borrower will not, and
will not permit any Subsidiary to, borrow any money or issue any bonds,
debentures or other debt securities or otherwise become obligated on any
interest-bearing indebtedness except for (i) the Term Loans and Advances on the
Revolving Loan under this Agreement, (ii) unsecured indebtedness to Klas and The
Tapemark Company and (iii) other indebtedness (including purchase money
obligations secured by the property acquired with the proceeds of such purchase
money) in an aggregate amount not to exceed $100,000 at any time outstanding.
2.8 EXHIBITS. Exhibits 2.3(b), 2.3(c), 2.3(d), 2.3(e) are
deleted from the Credit Agreement and Exhibits 2.3(b) and 2.3(c) as
attached hereto are added to the Credit Agreement, respectively, as
Exhibits 2.3(b) and 2.3(c).
SECTION 3. EFFECTIVENESS OF AMENDMENTS. The amendments
contained in this Amendment shall become effective upon delivery by the
Borrowers of, and compliance by the Borrowers with, the following:
3.1 This Amendment and the Consolidated Term Note in the form
of Exhibit 2.3(b) hereto, each duly executed by the Borrower. (For the
avoidance of doubt, there is no Exhibit 2.3(a) to this First Amendment
and the Advancing Term Note (2003) substantially in the form of Exhibit
2.3(c) hereto must be executed and delivered to the Lender prior to the
first Advance thereon).
3.2 A copy of the resolutions of the Board of Directors of the
Corporate Borrowers authorizing the execution, delivery and performance
of this Amendment and
6
the Notes certified as true and accurate by its Secretary or Assistant
Secretary, along with a certification by such Secretary or Assistant
Secretary (i) certifying that there has been no amendment to the
Certificate of Incorporation or Bylaws of the Corporate Borrowers since
true and accurate copies of the same were delivered to the Lender with
a certificate of the Secretary, and (ii) identifying each officer of
the Corporate Borrower authorized to execute this Amendment, the Notes
and any other instrument or agreement executed by the Borrower in
connection with this Amendment (collectively, the "Amendment
Documents"), and certifying as to specimens of such officer's signature
and such officer's incumbency in such offices as such officer holds.
3.3 Certified copies of all documents evidencing any necessary
corporate action, consent or governmental or regulatory approval (if
any) with respect to this Amendment.
3.4 The Borrowers shall have satisfied such other conditions
as specified by the Lender, including payment of all unpaid legal fees
and expenses incurred by the Lender through the date of this Amendment
in connection with the Credit Agreement and the Amendment Documents.
SECTION 4. REPRESENTATIONS, WARRANTIES, AUTHORITY, NO ADVERSE
CLAIM.
4.1 REASSERTION OF REPRESENTATIONS AND WARRANTIES, NO DEFAULT.
The Borrowers hereby represent that on and as of the date hereof and after
giving effect to this Amendment (a) all of the representations and warranties
contained in the Credit Agreement are true, correct and complete in all respects
as of the date hereof as though made on and as of such date, except for changes
permitted by the terms of the Credit Agreement, and (b) there will exist no
Default or Event of Default under the Credit Agreement as amended by this
Amendment on such date which has not been waived by the Lender.
4.2 AUTHORITY, NO CONFLICT, NO CONSENT REQUIRED. The Borrowers
represent and warrant that the Borrowers have the power and legal right and
authority to enter into the Amendment Documents and has duly authorized as
appropriate the execution and delivery of the Amendment Documents and other
agreements and documents executed and delivered by the Borrowers in connection
herewith or therewith by proper corporate action, and none of the Amendment
Documents nor the agreements contained herein or therein contravenes or
constitutes a default under any agreement, instrument or indenture to which a
Borrower is a party or a signatory or a provision of the Corporate Borrower's
Certificate or Articles of Incorporation, Bylaws or any other agreement or
requirement of law, or result in the imposition of any Lien on any of its
property under any agreement binding on or applicable to a Borrower or any of
its property except, if any, in favor of the Lender. The Borrowers represent and
warrant that no consent, approval or authorization of or registration or
declaration with any Person, including but not limited to any governmental
authority, is required in connection with the execution and delivery by the
Borrowers of the Amendment Documents or other agreements and documents executed
and delivered by the Borrowers in connection therewith or the performance of
obligations of the Borrowers therein described, except for those which the
applicable Borrower has obtained or provided and as to which such Borrower has
delivered certified copies of documents evidencing each such action to the
Lender.
7
4.3 NO ADVERSE CLAIM. The Borrowers warrant, acknowledge and
agree that no events have been taken place and no circumstances exist at the
date hereof which would give any Borrower a basis to assert a defense, offset or
counterclaim to any claim of the Lender with respect to the Borrowers'
obligations under the Credit Agreement as amended by this Amendment.
SECTION 5. AFFIRMATION OF CREDIT AGREEMENT, FURTHER
REFERENCES, AFFIRMATION OF SECURITY INTEREST. The Lender and the Borrowers each
acknowledge and affirm that the Credit Agreement, as hereby amended, is hereby
ratified and confirmed in all respects and all terms, conditions and provisions
of the Credit Agreement, except as amended by this Amendment, shall remain
unmodified and in full force and effect. All references in any document or
instrument to the Credit Agreement are hereby amended and shall refer to the
Credit Agreement as amended by this Amendment. The Borrowers confirm to the
Lender that the Borrowers' obligations under the Credit Agreement, as amended by
this Amendment and including, without limitation, each of the Notes, are and
continue to be secured by the security interest granted by the Borrowers in
favor of the Lender under the Security Agreements dated as of February 27, 2002
and any prior security agreements that remain in effect, and all of the terms,
conditions, provisions, agreements, requirements, promises, obligations, duties,
covenants and representations of the Borrowers under such documents and any and
all other documents and agreements entered into with respect to the obligations
under the Credit Agreement are incorporated herein by reference and are hereby
ratified and affirmed in all respects by the Borrowers.
SECTION 6. MERGER AND INTEGRATION, SUPERSEDING EFFECT. This
Amendment, from and after the date hereof, embodies the entire agreement and
understanding between the parties hereto and supersedes and has merged into this
Amendment all prior oral and written agreements on the same subjects by and
between the parties hereto with the effect that this Amendment, shall control
with respect to the specific subjects hereof and thereof.
SECTION 7. SEVERABILITY. Whenever possible, each provision of
this Amendment and the other Amendment Documents and any other statement,
instrument or transaction contemplated hereby or thereby or relating hereto or
thereto shall be interpreted in such manner as to be effective, valid and
enforceable under the applicable law of any jurisdiction, but, if any provision
of this Amendment, the other Amendment Documents or any other statement,
instrument or transaction contemplated hereby or thereby or relating hereto or
thereto shall be held to be prohibited, invalid or unenforceable under the
applicable law, such provision shall be ineffective in such jurisdiction only to
the extent of such prohibition, invalidity or unenforceability, without
invalidating or rendering unenforceable the remainder of such provision or the
remaining provisions of this Amendment, the other Amendment Documents or any
other statement, instrument or transaction contemplated hereby or thereby or
relating hereto or thereto in such jurisdiction, or affecting the effectiveness,
validity or enforceability of such provision in any other jurisdiction.
SECTION 8. SUCCESSORS. The Amendment Documents shall be
binding upon the Borrowers and the Lender and their respective successors and
assigns, and shall inure to the benefit of the Borrowers and the Lender and the
successors and assigns of the Lender.
8
SECTION 9. LEGAL EXPENSES. The Borrowers agree to reimburse
the Lender, upon execution of this Amendment, for all reasonable out-of-pocket
expenses (including attorney' fees and legal expenses of Xxxxxx & Whitney LLP,
counsel for the Lender) incurred in connection with the Credit Agreement,
including in connection with the negotiation, preparation and execution of the
Amendment Documents and all other documents negotiated, prepared and executed in
connection with the Amendment Documents, and in enforcing the obligations of the
Borrowers under the Amendment Documents, and to pay and save the Lender harmless
from all liability for, any stamp or other taxes which may be payable with
respect to the execution or delivery of the Amendment Documents, which
obligations of the Borrowers shall survive any termination of the Credit
Agreement.
SECTION 10. HEADINGS. The headings of various sections of this
Amendment have been inserted for reference only and shall not be deemed to be a
part of this Amendment.
SECTION 11. COUNTERPARTS. The Amendment Documents may be
executed in several counterparts as deemed necessary or convenient, each of
which, when so executed, shall be deemed an original, provided that all such
counterparts shall be regarded as one and the same document, and either party to
the Amendment Documents may execute any such agreement by executing a
counterpart of such agreement.
SECTION 12. GOVERNING LAW. THE AMENDMENT DOCUMENTS SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT
TO CONFLICT OF LAW PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS, THEIR HOLDING COMPANIES AND THEIR AFFILIATES.
SECTION 13. WAIVER. Pursuant to the provisions of Section 6.4
of the Credit Agreement the Borrower agreed not to incur additional indebtedness
except as otherwise authorized in such Section 6.4. The Borrower has reported to
the Lender that for the period ended December 31, 2002 the Borrower incurred
additional indebtedness other than the additional indebtedness authorized by
such Section 6.4. The Lender hereby waives the Event of Default under the Credit
Agreement due to the Borrower's failure to comply with the provisions of Section
6.4 of the Credit Agreement for the period ended December 31, 2002. This waiver
is limited to the express terms hereof and does not extend to any other Default,
Event of Default or period. This waiver is not, and shall not be deemed, a
course of dealing or performance upon which the Borrower may rely with respect
to any other Default, Event of Default or request for a waiver and the Borrower
hereby expressly waives any such claim.
9
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date and year first above written.
BORROWERS: WTC INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxx
--------------------------------------
Title: CFO
-----------------------------------
PENTAPURE INCORPORATED
By: /s/ Xxxx Xxxxxx
--------------------------------------
Title: CFO
-----------------------------------
LENDER: U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxx
--------------------------------------
Title: Vice President
-----------------------------------
10
CONSOLIDATED TERM NOTE
$7,400,000 March 3, 0000
Xx. Xxxx, Xxxxxxxxx
FOR VALUE RECEIVED, WTC INDUSTRIES, INC., a Delaware
corporation, and PENTAPURE INCORPORATED, a Minnesota corporation, hereby jointly
and severally promise to pay to the order of U.S. BANK NATIONAL ASSOCIATION (the
"Lender") at its office in St. Xxxx, Minnesota, in lawful money of the United
States of America in immediately available funds, the principal amount of SEVEN
MILLION FOUR HUNDRED THOUSAND DOLLARS AND NO CENTS ($7,400,000) or if less, the
full amount of the Consolidated Term Loan (as such term and each capitalized
term used herein are defined in the Credit Agreement hereinafter defined), and
to pay interest (computed on the basis of actual days elapsed and a year of 360
days) in like funds on the unpaid principal amount hereof from time to time
outstanding at the rate set forth in the Credit Agreement.
Principal shall be paid in equal installments of $205,556,
plus accrued unpaid interest, commencing on April 1, 2003 and continuing on the
first day of each month through February 1, 2006, with one final installment
equal to the entire remaining unpaid principal balance and all accrued and
unpaid interest on March 1, 2006.
This note is the Consolidate Term Note referred to in the
Amended and Restated Credit Agreement dated as of February 27, 2002 (as amended
and as the same may hereafter be from time to time amended, restated or
otherwise modified, the "Credit Agreement") between the undersigned and the
Lender. This note is secured and its maturity is subject to acceleration, in
each case upon the terms provided in said Credit Agreement. This note is issued
to refinance and replace the Term Note, Term Note A, Term Note B and the
Advancing Term Note under the Credit Agreement (the "Prior Term Notes"). All
amounts outstanding under the Prior Term Notes on the date hereof shall be
deemed outstanding hereunder and shall be repaid and shall bear interest in
accordance with the terms hereof.
In the event of default hereunder, the undersigned agrees to
pay all costs and expenses of collection, including reasonable attorneys' fees.
The undersigned waives demand, presentment, notice of nonpayment, protest,
notice of protest and notice of dishonor.
THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS NOTE
SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL
LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS.
WTC INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxx
--------------------------------------
Title: CFO
-----------------------------------
PENTAPURE INCORPORATED
By: /s/ Xxxx Xxxxxx
--------------------------------------
Title: CFO
-----------------------------------
ADVANCING TERM NOTE (2003)
$3,000,000 March 3, 0000
Xx. Xxxx, Xxxxxxxxx
FOR VALUE RECEIVED, WTC INDUSTRIES, INC., a Delaware corporation, and
PENTAPURE INCORPORATED, a Minnesota corporation, hereby jointly and severally
promise to pay to the order of U.S. BANK NATIONAL ASSOCIATION (the "Lender") at
its office in St. Xxxx, Minnesota, in lawful money of the United States of
America in immediately available funds, the principal amount of THREE MILLION
DOLLARS AND NO CENTS ($3,000,000) or if less, the full amount of the Advancing
Term Loan (2003)(as such term and each capitalized term used herein are defined
in the Credit Agreement hereinafter defined) advanced under the Credit
Agreement, and to pay interest (computed on the basis of actual days elapsed and
a year of 360 days) in like funds on the unpaid principal amount hereof from
time to time outstanding at the rate set forth in the Credit Agreement.
Principal shall be paid in equal installments in an amount sufficient
to amortize the full amount outstanding on December 31, 2003 in 48 installments,
plus accrued unpaid interest, commencing on January 1, 2004 and continuing on
the first day of each month through November 1, 2007, with one final installment
equal to the entire remaining unpaid principal balance and all accrued and
unpaid interest on December 1, 2007. Interest only payments are due on the first
day of each month from the date of the first Advance hereunder until January 1,
2004.
This note is the Advancing Term Note (2003) referred to in the Amended
and Restated Credit Agreement dated as of February 27, 2002 (as amended and as
the same may hereafter be from time to time amended, restated or otherwise
modified, the "Credit Agreement") between the undersigned and the Lender. This
note is secured and its maturity is subject to acceleration, in each case upon
the terms provided in said Credit Agreement.
In the event of default hereunder, the undersigned agrees to pay all
costs and expenses of collection, including reasonable attorneys' fees. The
undersigned waives demand, presentment, notice of nonpayment, protest, notice of
protest and notice of dishonor.
THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS NOTE SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF
THE UNITED STATES APPLICABLE TO NATIONAL BANKS.
WTC INDUSTRIES, INC.
By /s/ Xxxx Xxxxxx
--------------------------
Title Chief Financial Officer
-----------------------
PENTAPURE INCORPORATED
By /s/ Xxxx Xxxxxx
--------------------------
Title Chief Financial Officer
-----------------------
