Exhibit 10.8
SEVENTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
This Seventh Amendment, dated as of January 17, 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 and a Sixth Amendment to Amended and Restated Credit and Security
Agreement dated as of September 11, 1996 (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 Seventh 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 Seventh 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
January and February $2,000,000 $1,000,000
March $1,500,000 $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
" 'Seventh Amendment' means that certain Seventh Amendment to Amended and
Restated Credit and Security Agreement dated as of January 17, 1997."
2. No Other Changes. Except as explicitly amended by this Seventh 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. 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:
(r) Consent of the Participant.
(s) 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 Seventh 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 Seventh Amendment and
all other documents, agreements and certificates on behalf of the
Borrower.
(t) Such other matters as the Lender may require.
4. Representations and Warranties. The Borrower hereby represents and warrants
to the Lender as follows:
(u) The Borrower has all requisite power and authority to execute this Seventh
Amendment and to perform all of its obligations hereunder, and this Seventh
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.
(v) The execution, delivery and performance by the Borrower of this Seventh
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.
(w) 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.
5. 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.
6. No Waiver. The execution of this Seventh 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 Seventh Amendment.
7. 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
Seventh Amendment, whether such claims, demands and causes of action are matured
or unmatured.
8. 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
Seventh 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.
9. Miscellaneous. This Seventh 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
Seventh 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
