EXHIBIT 5
ACKNOWLEDGMENT AND AMENDING AGREEMENT
This Agreement is made as of the 29th day of July 1999 by and
between Nicollet Process Engineering, Inc., a Minnesota corporation
(the "Company"), TECHinspirations, Inc. a Nevada corporation ("TECH
US"), and TECHinspiration's Inc. (Cayman), a Cayman Island
corporation ("TECH Cayman").
RECITALS
A) TECH US is the holder of the instruments and documents
(collectively, the "Documents") listed in Exhibit A to a June
8th, 1998 nonrecourse assignment, a true copy whereof is
annexed hereto as Schedule A (the "Assignment ");
B) The Documents include, without limitation, a certain credit
and security agreement dated as of May 28,1997 (the "Security
Agreement") granted by Nicollet to Norwest Business Credit,
Inc. (the successor to which is TECH USA pursuant to the
Assignment);
C) In this Agreement the parties intend to confirm the
effectiveness of the Documents, subject to certain amendments
as specified herein, and to effect the assignment of the
Documents, so amended, from TECH US to TECH Cayman.
AGREEMENT
NOW THEREFORE, in consideration of the mutual premises herein contained
and for other good and valuable consideration, the receipt and
sufficiency of which each party acknowledges, the parties hereto agree
as follows:
1. In this Agreement, capitalized terms denoting defined terms
shall, if not specifically defined in this Agreement, bear the
meanings attributable to them in the Security Agreement; and
"Holder "means TECH US prior to giving effect to the
assignment set out in paragraph 5 hereof, and thereafter means
TECH Cayman or any successor to TECH Cayman.
2. The Company hereby acknowledges and confirms that each of the
Documents, including without limitation the Security
Agreement, are and continue to be in full force and effect as
binding legal documents enforceable against the Company in
accordance with their respective terms. The Company and TECH
US hereby acknowledge and confirm that as of June 30th, 1999
the amount of debt owing by the Company to TECH
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US under the credit facilities supported by the documents
("Credit Facilities") was $3,277,277 (consisting of
$3,070,000 of principal and $207,277 of accrued and unpaid
interest), and that as of July 29th, 1999, $3,000,100 of
that debt is to be converted to equity pursuant to a
purchase agreement and a conversion agreement: each dated
July 29th, 1999 and made between the Company and TECH Cayman
(the "Conversion Transaction")
3. The Company hereby acknowledges and agrees that the failure
of the Holder to enforce, or the election not to enforce, at
any time, any of the provisions of the Documents or any of
its rights in respect thereto or to insist upon strict
adherence to any term of any of the Documents shall not be
considered to be a waiver of such provision, right or term
or in any way to effect the validity of such Documents or
deprive the Holder of the right thereafter to insist upon
strict adherence to that term or any other term of any of
the Documents. The exercise by the Holder of any of its
rights provided by any of the Documents shall not preclude
or prejudice such person from exercising any other right it
may have under such Documents, or under any other Document,
irrespective of any previous action or proceeding taken by
it. Any waiver by the Holder of the performance of any of
the provisions of any Document shall be effective only if in
writing and signed by a duly authorized representative of
such person.
4. The parties hereto agree and confirm that the Security
Agreement has been and hereafter shall be amended as follows:
a) The definition therein of "Maturity Date" shall be
amended to mean May 28th, 2001, or such earlier
date as the Holder may advise on no less than
thirty days notice in writing;
b) The definition therein of "Maximum Line" shall be
amended to mean $800,000, or such greater or
lesser amount as the Holder may in its sole and
unfettered discretion elect, which election may be
sufficiently evidenced by written or oral
communication, or by a course of conduct.
5. After having giving effect to the amendments set out in this
Agreement, but prior to the completion of the Conversion
Transaction, TECH US hereby sells, transfers, and assigns to
TECH Cayman, all of TECH US's right, title and interest in
each of the Documents, including all rights, privileges and
obligations thereunder. TECH US and TECH Cayman agree that
the assignment aforesaid shall include all of Tech US's
right, title and interest in and to monies owed by the
Company to TECH US under the Credit Facility provided
pursuant to the Documents (including accrued and unpaid
interest thereon). TECH Cayman hereby accepts the assignment
of the Company's debt set out in this paragraph 5 as full
satisfaction of an equivalent amount of monies owed by TECH
US to
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TECH Cayman.
6. The Company hereby consents to the assignment herein of the
Documents from TECH US to TECH Cayman and accepts TECH
Cayman as the provider of the Credit Facilities set out
therein.
7. Each of the parties hereto agrees to execute and deliver
such further documents or instruments of transfer, and to do
or cause to be done such further acts or things, as may be
reasonably required to give effect to the provisions of this
Agreement.
8. This Agreement shall be governed by the laws of the state of
Minnesota and shall inure to the benefit of and be binding
upon each of the parties hereto and their respective
successors or assigns.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to
be duly authorized, executed and delivered as of the date set forth
above.
XXXXXXXX PROCESS ENGINEERING, INC.
Per:
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Name:
Title:
TECHINSPIRATIONS, INC.
Per:
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Name:
Title:
TECHINSPIRATIONS INC. (CAYMAN)
Per:
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Name:
Title:
