EXHIBIT 10.69
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), made and entered into as of February 18, 2004, 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 and a Second
Amendment to Amended and Restated Credit Agreement dated as of March 3, 2003 (as
amended, the "Credit Agreement"); and
2. Pursuant to the Second Amendment to Amended and Restated Credit
Agreement the Lender made available to the Borrowers an Advancing Term Loan
(2003) pursuant to which the Borrowers could borrow up to $3,000,000 to be
repaid over a term of 48 months
3. No amounts were borrowed under the Advancing Term Loan (2003) prior
to the expiration of the advancing period thereunder and the Borrowers and the
Lender have agreed to extend the advancing period on such Advancing Term Loan,
on the terms and subject to the conditions of 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 GLOBAL CHANGE. Each reference to Advancing Term Loan
(2003) or like references to Advancing Term Note (2003) and each other
reference to any term using "(2003)" is changed such that the
parenthetical reference (2003) is changed to (2004).
2.2 SECTIONS 2.1(C) OF THE CREDIT AGREEMENT. Section 2.1(c) of
the Credit Agreement is amended in its entirety to read as follows:
2.1(c) ) Advancing Term Loan (2004). A term loan,
available in multiple Advances (the "Advancing Term Loan
(2004)") from the date of a Borrower's first request for
an Advance thereunder through March 31, 2004, in an aggregate
principal amount not to exceed $3,000,000 (the "Advancing Term
Loan (2004) Commitment Amount").
2.3 DELETION OF FEE. Section 2.9(b) of the Credit Agreement is
deleted.
2.8 EXHIBITS. Exhibit 2.3(c) is deleted from the Credit
Agreement and Exhibit 2.3(c) as attached hereto is added to the Credit
Agreement as Exhibit 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 Advancing Term Note (2004)
substantially in the form of Exhibit 2.3(c) (there are no Exhibits
2.3(a) and 2.3(b) to this Amendment) 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 the Advancing Term Note (2004) (the "Note")
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 Note 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.
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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.
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, the Note, 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.
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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.
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 & Xxxxxxx 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.
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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
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Title CFO
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PENTAPURE INCORPORATED
By: /s/ Xxxx Xxxxxx
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Title CFO
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LENDER: U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxx
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Title Vice President
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ADVANCING TERM NOTE (2004)
$3,000,000 February 18, 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 (2004)(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 March 31, 2004 in 48 installments,
plus accrued unpaid interest, commencing on May 1, 2004 and continuing on the
first day of each month through March 1, 2008, with one final installment equal
to the entire remaining unpaid principal balance and all accrued and unpaid
interest on April 1, 2008. Interest only payments are due on the first day of
each month from the date of the first Advance hereunder until May 1, 2004.
This note is the Advancing Term Note (2004) 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
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Title CFO
---------------------------------
PENTAPURE INCORPORATED
By /s/ Xxxx Xxxxxx
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Title CFO
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