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EXECUTION COPY
ELEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS ELEVENTH AMENDMENT TO CREDIT AGREEMENT is dated as of
July 28, 2000 ("this Amendment"), by and among NORSTAN, INC., a Minnesota
corporation (the "Borrower"), the banks which are signatories hereto (each
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, 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, a Fifth Amendment dated as of September 28, 1998, a Sixth
Amendment dated as of October 21, 1998, a Seventh Amendment dated as of May 31,
1999, an Eighth Amendment dated January 24, 2000, a Ninth Amendment dated as of
April 26, 2000 and a Tenth Amendment dated as of June 30, 2000 (as so amended,
the "Credit Agreement").
B. The parties hereto desire to amend the Credit Agreement in
certain respects.
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) AMENDMENT TO COVENANTS. Section 5.18 of the Credit Agreement is
amended to read in its entirety as follows:
Section 5.18 ADDITIONAL COLLATERAL. On or before the tenth
Business Day after the Agent delivers a draft pledge agreement to the
Borrower, the Borrower shall: (i) execute and deliver to the Agent a
pledge agreement, in form and substance satisfactory to the Banks,
granting the Banks a security interest in all shares of capital stock
and other ownership interests in any Subsidiary owned by the Borrower
(or 65% of such shares or interests, in the case of foreign
Subsidiaries); (ii) cause each Subsidiary that owns any shares of
capital stock or other ownership interests in any other Subsidiary to
execute and deliver to the Agent a pledge agreement, in form and
substance satisfactory to the Banks, granting the Banks a security
interest in all such shares and other ownership interests (or 65% of
such shares or interests, in the case of foreign Subsidiaries); and
(iii) deliver to
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the Agent the original of all certificates pledged pursuant to the
foregoing clauses (i) and (ii), together with corresponding stock
powers and financing statements.
(b) EXHIBIT 1.1A. Exhibit 1.1A to the Credit Agreement is hereby
amended to read in its entirety as provided in Exhibit A of this Amendment.
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:
(a) this Amendment has been duly authorized, executed and
delivered by it and 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;
(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
the Amendment (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 4(c);
(d) as of the date hereof, no Default or Event of Default has
occurred which either (a) is continuing or (b) pursuant to which the
Agent and the Banks have not agreed to temporarily forbear from
exercising their remedies as set forth in Section 3 of the Tenth
Amendment to Credit Agreement dated as of June 30, 2000 (the "Tenth
Amendment");
(e) except to the extent affected by the Existing Defaults, as
defined in the Tenth Amendment, all the representations and warranties
contained in Article IV of the Credit
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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; and
(f) neither the Borrower nor any Subsidiary owns a 1967 Ford
Mustang or any other titled vehicle.
Section 4. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This
Amendment shall not become effective until, and shall become effective when,
each and every one of the following conditions shall have been satisfied:
(a) The Agent shall have received executed counterparts of
this Amendment, duly executed by the Borrower and each of the Banks.
(b) The Agent shall have received from the Guarantors a
Consent and Agreement of Guarantors in the form of Exhibit B hereto
(the "Guarantor Agreements") duly completed and executed by each
Guarantor.
(c) The Agent shall have received the favorable opinion of
counsel, which opinion shall be in form and substance satisfactory to
the Agent.
(d) 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 and the
other documents to be executed by the Borrower in connection therewith
(the "Amendment Documents"), certified by its Secretary or an Assistant
Secretary, together with a certificate of the Secretary or Assistant
Secretary of the Borrower certifying as to the incumbency and the true
signatures of the officers authorized to execute the Amendment
Documents on behalf of the Borrower.
Upon receipt of all of the foregoing, 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), whereupon this Amendment shall become effective.
Section 5. REAFFIRMATION. 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 and (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. The
Borrower hereby confirms, ratifies, approves and reaffirms each of the Loan
Documents and agrees that each of the Loan Documents, as amended hereby, remains
in full force and effect. The execution and delivery by the parties of this
Amendment is not intended as a novation, discharge or extinguishment of the
Borrower's existing obligations under the Credit Agreement or as a termination
or release of the Agent's or the Banks' security interests in the collateral
under the Security Documents, all of which obligations and security interests
shall
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remain in full force and effect, subject to the amendments effected by this
Amendment. The Borrower acknowledges and agrees that its obligations to the
Agent and the Banks under the Credit Agreement exist and are owing without
offset, defense or counterclaim assertable by the Borrower against the Agent or
the Banks.
Section 6. GENERAL RELEASE. The Borrower hereby releases and
discharges the Agent and each Bank, and each of their officers, directors,
employees, agents and attorneys, from any and all claims, actions and
liabilities of any kind or nature that it or any one claiming through or under
the Borrower ever had or may now have, whether now known or hereafter
discovered, arising out of or in any way relating to: (i) any lending
relationship or loan commitment between the Agent, the Banks and the Borrower
prior to the date of this Amendment; (ii) the documents and transactions
described in the recitals hereof; or (iii) the negotiations preceding the
execution and delivery of this Amendment. The Borrower acknowledges and agrees
that it has received the advice of independent counsel selected by it, or the
opportunity to obtain such advice, before entering into this Amendment, and has
not relied upon the Lender or any of its officers, directors, employees, agents
or attorneys concerning any aspect of the transactions contemplated by this
Amendment.
Section 7. GENERAL.
(a) The Borrower agrees to reimburse the Agent upon demand for
all reasonable expenses (including reasonable attorneys fees and legal
expenses) incurred by the Agent in the preparation, negotiation and
execution of this Amendment and any other document required to be
furnished herewith, and to pay and save the Agent harmless from all
liability for any stamp or other taxes which may be payable with
respect to the execution or delivery of this Amendment, which
obligations of the Borrower shall survive any termination of the Credit
Agreement.
(b) This Amendment may be executed in as many counterparts as
may be deemed necessary or convenient, and by the different parties
hereto on separate counterparts, each of which, when so executed, shall
be deemed an original but all such counterparts shall constitute but
one and the same instrument. Transmission by telecopier of an executed
counterpart of this Agreement shall be deemed to constitute due and
sufficient delivery of such counterpart. Each party shall promptly
deliver an executed original of any counterpart delivered by telecopier
to the Agent; PROVIDED, HOWEVER that the failure by any party to so
deliver an original counterpart shall not affect the sufficiency of a
telecopied copy of such counterpart (and the fact that such telecopied
copy constitutes the due and sufficient delivery of such counterpart)
as provided in the previous sentence.
(c) Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such
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prohibition or unenforceability without invalidating the remaining
portions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction.
(d) 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.
(e) This Amendment shall be binding upon the
Borrower, the Agent and the Banks and their respective successors and
assigns, and shall inure to the benefit of the Borrower, the Agent and
the Banks and the successors and assigns of the Agent and the Banks.
(f) THE BORROWER ACKNOWLEDGES THAT THE BANKS HAVE NOT
COMMITTED, AND ARE NOT COMMITTING AT THIS TIME, TO FINANCE THE
BORROWER'S LOAN REQUIREMENTS FOR ANY PERIOD AFTER, OR TO EXTEND THE
FORBEARANCE PERIOD PROVIDED UNDER THE TENTH AMENDMENT TO ANY DATE
AFTER, AUGUST 15, 2000. ANY SUCH FUTURE LOAN OR LOANS, OR EXTENSION,
MAY BE MADE SOLELY AT THE OPTION OF THE BANKS AND ON SUCH TERMS AND
CONDITIONS AS THE BANKS MAY THEN REQUIRE. THE BORROWER UNDERSTANDS THAT
NO PRIOR COURSE OF DEALING, NO USAGE OF TRADE, NO ORAL STATEMENTS OR
COMMITTMENTS BY THE AGENT, THE BANKS OR THEIR EMPLOYEES OR OTHER AGENTS
WILL BE DEEMED TO BE A COMMITTMENT BY THE BANKS TO LEND MONEY TO THE
BORROWER OR TO ANY OTHER PERSON, OR TO EXTEND THE FORBEARANCE PERIOD,
UNLESS THE SAME IS REDUCED TO WRITING AND SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF THE AGENT AND EACH BANK.
THE UNDERSIGNED, BY EXECUTION HEREOF, ACKNOWLEDGES THAT: (I) THIS
AMENDMENT CONTAINS A COMPLETE RELEASE OF CLAIMS AND WAIVERS OF CERTAIN RIGHTS;
(II) IT HAS READ AND UNDERSTOOD THIS AMENDMENT IN ITS ENTIRETY PRIOR TO SIGNING
AND FULLY AGREES TO EACH, ALL AND EVERY PROVISION HEREOF; AND (III) IT HAS
RECEIVED A COPY HEREOF.
[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
---------------------------------
Name: Robert J. Vold
----------------------------
Title: Treasurer
---------------------------
U.S. BANK NATIONAL ASSOCIATION,
as a Bank and as Agent
By /s/ David C. Larsen
---------------------------------
Name: David C. Larsen
----------------------------
Title: Vice President
---------------------------
HARRIS TRUST AND SAVINGS BANK
By /s/ Diana Williams
---------------------------------
Name: Diana Williams
----------------------------
Title: Senior VP
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[Signature Page to Eleventh Amendment to Credit Agreement]
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M&I MARSHALL & ILSLEY BANK
By /s/ Robert A. Nielsen
---------------------------------
Name: Robert A. Nielsen
----------------------------
Title: Vice President
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By /s/ Mark A. Hogan
---------------------------------
Name: Mark A. Hogan
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Title: Senior Vice President
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WELLS FARGO BANK MINNESOTA, N.A.
FORMERLY KNOWN AS
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By /s/ Douglas A. Gibson
---------------------------------
Name: Douglas A. Gibson
----------------------------
Title: Vice President
---------------------------
[Signature Page to Eleventh Amendment to Credit Agreement]
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EXHIBIT A TO ELEVENTH
AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 1.1A TO
CREDIT AGREEMENT
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<CAPTION>
REVOLVING COMMITMENT AMOUNTS AND SUBLIMITS
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BANK REVOLVING REVOLVING REVOLVING
COMMITMENT COMMITMENT PERCENTAGE
AMOUNT AMOUNT ON AND
THROUGH AFTER 7/31/00
7/30/00
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<S> <C> <C> <C>
U.S. Bank National $32,384,851.71 $31,200,000 40%
Association
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Harris Trust and $16,192,425.86 $15,600,000 20%
Savings Bank
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M&I Marshall & Ilsley $16,192,425.86 $15,600,000 20%
Bank
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Norwest Bank $16,192,425.86 $15,600,000 20%
Minnesota, National
Association
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Totals $80,962,129.29 $78,000,000 100%
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</TABLE>
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EXHIBIT B TO
ELEVENTH AMENDMENT TO
CREDIT AGREEMENT
CONSENT AND AGREEMENT OF GUARANTORS
Each of the undersigned Guarantors (each a "Guarantor") hereby
acknowledges and consents to that certain Eleventh Amendment to Credit Agreement
dated as of July 28, 2000 (the "Amendment") among Norstan, Inc., a Minnesota
corporation (the "Borrower"), the Banks which are signatories thereto (the
"Banks") and U.S. Bank National Association as Agent for the Banks. Each
Guarantor further acknowledges and agrees as follows:
(a) Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed thereto in the Credit Agreement dated as of July 23, 1996,
as heretofore amended (the "Credit Agreement") among the Borrower, the Banks and
the Agent.
(b) All references to the "Credit Agreement" contained in the Guaranty,
the Security Agreement and the Pledge Agreement (if any) executed by such
Guarantor in favor of the Agent for the benefit of the Agent and the Banks shall
hereafter mean and refer to the Credit Agreement as further amended by the
Amendment and as the same may hereafter be further amended, supplemented,
restated, extended or renewed from time to time.
(c) Such Guaranty, such Security Agreement and such Pledge Agreement
(if any) shall each remain in full force and effect with respect to the
Obligations, including, without limitation, Obligations arising under the Credit
Agreement and the Borrower Loan Documents, as any of said documents may
hereafter be amended, modified, supplemented, restated, extended or renewed from
time to time.
(d) This Consent 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. This Consent shall be
binding upon each Guarantor signatory hereto, irrespective of whether this
Consent is signed by any other Guarantor.
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Dated: July 28, 2000
GUARANTORS:
NORSTAN FINANCIAL SERVICES, INC.,
a Minnesota corporation
By /s/ Robert J. Vold
-----------------------------------
Name: Robert J. Vold
----------------------------
Title: Treasurer
---------------------------
NORSTAN COMMUNICATIONS, INC.,
a Minnesota corporation
By /s/ Robert J. Vold
-----------------------------------
Name: Robert J. Vold
----------------------------
Title: Treasurer
---------------------------
NORSTAN NETWORK SERVICES, INC.,
a Minnesota corporation
By /s/ Robert J. Vold
-----------------------------------
Name: Robert J. Vold
----------------------------
Title: Treasurer
---------------------------
NORSTAN INTERNATIONAL, INC.,
a Minnesota corporation
By /s/ Robert J. Vold
-----------------------------------
Name: Robert J. Vold
----------------------------
Title: Treasurer
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NORSTAN-UK LIMITED,
a corporation incorporated in London,
England
By /s/ Robert J. Vold
-----------------------------------
Name: Robert J. Vold
----------------------------
Title: Treasurer
---------------------------
NORSTAN CONSULTING HOLDING
COMPANY, a Minnesota corporation,
By /s/ Robert J. Vold
-----------------------------------
Name: Robert J. Vold
----------------------------
Title: Treasurer
---------------------------
NORSTAN CONSULTING, INC., a Minnesota
corporation,
By /s/ Robert J. Vold
-----------------------------------
Name: Robert J. Vold
----------------------------
Title: Treasurer
---------------------------
NORSTAN CANADA, LTD., a Canadian
corporation,
By /s/ Robert J. Vold
-----------------------------------
Name: Robert J. Vold
----------------------------
Title: Treasurer
---------------------------
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