SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT dated as of October 21, 1998
("this Amendment") is by and between NORSTAN, INC., a Minnesota corporation (the
"Borrower"), the banks which are signatories hereto (individually, a "Bank" and,
collectively, the "Banks") and U.S. BANK NATIONAL ASSOCIATION, a national
banking association, one of the Banks, as agent for the Banks (in such capacity,
the "Agent").
RECITALS
A. The Borrower, U.S. Bank National Association (in its individual
corporate capacity, "U.S. Bank"), M&I Marshall & Ilsley Bank ("M&I Bank"),
Harris Trust and Savings Bank ("Harris"), Norwest Bank Minnesota, National
Association ("Norwest," and, together with U.S. Bank, M&I Bank and Harris
collectively, the "Banks") and the Agent are parties to a Credit Agreement dated
as of July 23, 1996, as amended by a First Amendment dated as of October 11,
1996, a Second Amendment dated as of September 26, 1997, a Third Amendment dated
as of March 20, 1998, a Fourth Amendment dated as of July 23, 1998 and a Fifth
Amendment dated as of September 28, 1998 (as so amended, the "Credit
Agreement").
B. The parties hereto desire to amend the Credit Agreement in the respects
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS. Capitalized terms used herein and not otherwise
defined herein, but which are defined in the Credit Agreement, shall have the
meanings ascribed to such terms in the Credit Agreement unless the context
otherwise requires.
Section 2. AMENDMENTS TO CREDIT AGREEMENT. Subject to Section 4 hereof,
the Credit Agreement is hereby amended as follows:
(a) Exhibit 1.1A to the Credit Agreement is deleted and Exhibit A of
this Amendment is inserted in its place.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. To induce the
Banks and the Agent to execute and deliver this Amendment (which representations
and warranties shall survive the execution and delivery of this Amendment), the
Borrower represents and warrants to the Agent and the Banks that:
[Signature Page to Sixth Amendment to Credit Agreement]
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(a) this Amendment, the Amended M&I Bank Note (as hereinafter
defined) and the Amended Norwest Note (as hereinafter defined) have been
duly authorized, executed and delivered by it and this Amendment, the
Amended M&I Bank Note and the Amended Norwest Note constitute the legal,
valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms, subject to limitations
as to enforceability which might result from bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles relating
to or limiting creditors' rights generally;
(b) the Credit Agreement, as amended by this Amendment, constitutes
the legal, valid and binding obligation of the Borrower enforceable against
the Borrower in accordance with its terms, subject to limitations as to
enforceability which might result from bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles relating
to or limiting creditors' rights generally;
(c) the execution, delivery and performance by the Borrower of this
Amendment, the Amended M&I Bank Note and the Amended Norwest Note (i) have
been duly authorized by all requisite corporate action and, if required,
shareholder action, (ii) do not require the consent or approval of any
governmental or regulatory body or agency, and (iii) will not (A) violate
(1) any provision of law, statute, rule or regulation or its certificate of
incorporation or bylaws, (2) any order of any court or any rule, regulation
or order of any other agency or government binding upon it, or (3) any
provision of any material indenture, agreement or other instrument to which
it is a party or by which any of its properties or assets are or may be
bound, or (B) result in a breach of or constitute (alone or with due notice
or lapse of time or both) a default under any indenture, agreement or other
instrument referred to in clause (iii)(A)(3) of this Section 3(c);
(d) as of the date hereof, no Default or Event of Default has
occurred which is continuing; and
(e) all the representations and warranties contained in Article IV of
the Credit Agreement are true and correct in all material respects with the
same force and effect as if made by the Borrower on and as of the date
hereof.
Section 4. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This Amendment
shall not become effective until, and shall become effective on the date (the
"Sixth Amendment Effective Date") when, each and every one of the following
conditions shall have been satisfied:
(a) executed counterparts of this Amendment, duly executed by the
Borrower and each of the Banks, shall have been delivered to the Agent;
(b) M&I Bank shall have received a new promissory note substantially
in the form attached hereto as Exhibit B (the "Amended M&I Bank Note"),
which Amended M&I Bank Note shall constitute an amendment and restatement
of the Revolving Note dated July 23, 1998 payable to M&I Bank;
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(c) Norwest shall have received a new promissory note substantially
in the form attached hereto as Exhibit C duly executed by the Borrower (the
"Amended Norwest Note"), which Amended Norwest Note shall constitute an
amendment and restatement of the Revolving Note dated September 28, 1998
payable to Norwest;
(d) the Agent shall have received from each Guarantor a Consent and
Agreement of Guarantor in the form of Exhibits D-1 through D-8 hereto (the
"Guarantor Agreements") duly completed and executed by such Guarantor;
(e) the Agent shall have received a copy of the resolutions of the
Board of Directors of the Borrower authorizing the execution, delivery and
performance by the Borrower of this Amendment, the Amended M&I Bank Note
and the Amended Norwest Note certified by an officer thereof, together with
a certificate of an officer of the Borrower certifying as to the incumbency
and the true signatures of the officers authorized to execute this
Amendment, the Amended M&I Bank Note and the Amended Norwest Note on behalf
of the Borrower; and
(f) the Agent shall have received the favorable opinion of counsel to
Borrower, covering the matters set forth in Exhibit E hereto.
Upon the Sixth Amendment Effective Date, the Agent shall notify the Borrower and
the Banks that this Amendment has become effective, but the failure of the Agent
to give such notice shall not affect the validity of this Amendment or prevent
it from becoming effective.
Section 5. COUNTERPARTS AND EFFECTIVENESS. This Amendment may be executed
in any number of counterparts, and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one of the
same instrument.
Section 6. LEGAL EXPENSES. The Borrower agrees to reimburse the Agent for
all reasonable out-of-pocket expenses (including attorneys' fees and legal
expenses of Dorsey & Whitney LLP, counsel for the Agent) incurred in connection
with the negotiation, preparation, execution and delivery of this Amendment.
Section 7. AFFIRMATION. Each party hereto affirms and acknowledges that
(a) the Credit Agreement as amended by this Amendment remains in full force and
effect in accordance with its terms, (b) all references to the "Credit
Agreement" or any similar term contained in any other Loan Document shall be
deemed to be references to the Credit Agreement as amended hereby and (c) all
references to the "Revolving Notes" or any similar term contained in the Credit
Agreement or any other Loan Document shall be deemed to be references to the
Amended M&I Bank Note, the Amended Norwest Note and the Revolving Notes
previously issued by the Borrower to each of U.S. Bank and Harris.
Section 8. CHOICE OF LAW. This Amendment shall be governed by, and
construed in accordance with, the internal law, and not the law of conflicts,
of the State of Minnesota, but giving effect to federal laws applicable to
national banks.
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Section 9. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
the Borrower, the Banks, the Agent and their respective successors and assigns,
and shall inure to the benefit of the Borrower, the Banks and the successors and
assigns of the Banks and the Agent.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first above written.
NORSTAN, INC.
By /s/ Robert J. Vold
--------------------------------
Its Treasurer
----------------------------
U.S. BANK NATIONAL ASSOCIATION,
as a Bank and as Agent
By /s/ David Shapiro
--------------------------------
Its Assistant Vice President
----------------------------
M & I MARSHALL & ILSLEY BANK
By /s/ Doug Nelson
--------------------------------
Its Vice President
----------------------------
By /s/ Stephen F. Geimer
--------------------------------
Its Vice President
----------------------------
HARRIS TRUST & SAVINGS BANK
By /s/ George M. Dluhy
--------------------------------
Its Vice President
----------------------------
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By /s/ Brad Sullivan
--------------------------------
Its Portfolio Manager
----------------------------
[Signature Page to Sixth Amendment to Credit Agreement]
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EXHIBIT 1.1A TO SIXTH
AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 1.1A TO
CREDIT AGREEMENT
REVOLVING COMMITMENT AMOUNTS AND SUBLIMITS
Revolving Commercial Standby
Commitment Revolving Paper Letter of Credit
Bank Amount Percentage Sublimit Sublimit
- -------- ----------- ---------- ----------- ----------------
U.S. Bank $40,000,000 40% $12,000,000 $ 2,000,000
National
Association
Harris Trust $20,000,000 20% $ 6,000,000 $ 1,000,000
And Savings
Bank
Marshall & $20,000,000 20% $ 6,000,000 $ 1,000,000
Ilsley Bank
Norwest Bank $20,000,000 20% $ 6,000,000 $ 1,000,000
Minnesota,
National
Association
------------ ----- ----------- -----------
Total $100,000,000 100% $30,000,000 $ 5,000,000
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