Exhibit
10.10(5)


 


Execution Copy


 


SIXTH AMENDMENT TO CREDIT AGREEMENT


 


This SIXTH AMENDMENT TO CREDIT AGREEMENT (this
“Amendment”), made and entered into as of October 30, 2003, is by and
among Community First Bankshares, Inc., a Delaware corporation (the “Borrower”),
U.S. Bank National Association, a national banking association, as agent (in
such capacity, the “Agent”) for certain banks (the “Banks”) party to the Credit
Agreement (as defined below), and the Banks.


 


RECITALS


 


1.                                       The Borrower,
the Agent and the Banks entered into a Credit Agreement dated as of
October 30, 1998 as amended by a First Amendment dated as of
October 27, 1999, a Second Amendment dated as of November 21, 2000, a
Third Amendment dated as of October 26, 2001, a Fourth Amendment dated as
of April 23, 2002 and Fifth Amendment dated as of November 25, 2002
(as amended, the “Credit Agreement”); and


 


2.                                       The Borrower
desires to amend certain provisions of the Credit Agreement, and the Agent and
the Banks have agreed to make such amendments, subject to the terms and
conditions set forth in 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.


 


2.1                               The
definition of “Revolving Commitment Ending Date”
contained in Section 1.1 of the Credit Agreement is hereby amended in its
entirety to read as follows:


 


“Revolving Commitment Ending Date”: 
October 26, 2004.


 


2.2                               Schedule 4.19
to the Credit Agreement is hereby amended to read in its entirety as Exhibit A
to this Amendment, which is made a part of the Credit Agreement as
Schedule 4.19 thereto.


 


Section 3.                                          Effectiveness of
Amendments.  The
amendments contained in this Amendment shall become effective as of
October 26, 2003 upon delivery by the Borrower of, and compliance by the
Borrower with, the following:


 

















 


3.1                               This
Amendment, duly executed by the Borrower.


 


3.2                               A
copy of the resolutions of the Board of Directors of the Borrower authorizing
the execution, delivery and performance of this Amendment 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 Articles of Incorporation or Bylaws of the Borrower since true
and accurate copies of the same were delivered to the Agent with a certificate
of the Secretary of the Borrower dated October 30, 1998, and (ii)
identifying each officer of the Borrower authorized to execute this Amendment
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                               A
consent letter executed by Wells Fargo Bank, N.A., consenting to the delivery
and execution of this Amendment.


 


3.4                               Certified
copies of all documents evidencing any necessary corporate action, consent or
governmental or regulatory approval (if any) with respect to this Amendment.


 


3.5                               The
Borrower shall have satisfied such other conditions as specified by the Agent
and the Banks, including payment of all unpaid legal fees and expenses incurred
by the Agent 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 Borrower hereby represents 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 Agent and the Banks.


 


4.2                               Authority, No Conflict,
No Consent Required. The Borrower represents and warrants
that the Borrower has 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 Borrower 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 the Borrower is a party or a
signatory or a provision of the Borrower’s Articles of Incorporation, Bylaws or
any other agreement or requirement of law, or result in the


 


2

















 


imposition of any Lien on any of its property under any agreement
binding on or applicable to the Borrower or any of its property except, if any,
in favor of the Agent.  The Borrower
represents and warrants 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 Borrower of the Amendment Documents or other agreements and documents
executed and delivered by the Borrower in connection therewith or the
performance of obligations of the Borrower therein described, except for those
which the Borrower has obtained or provided and as to which the Borrower has
delivered certified copies of documents evidencing each such action to the
Agent.


 


4.3                               No Adverse Claim.  The Borrower warrants, acknowledges and
agrees that no events have taken place and no circumstances exist at the date
hereof which would give the Borrower a basis to assert a defense, offset or
counterclaim to any claim of the Agent or the Banks with respect to the
Obligations.


 


Section 5.                                          Affirmation of
Credit Agreement, Further References.  The Agent, the Banks and the Borrower 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.


 


Section 6.                                          Successors.  The Amendment Documents 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.


 


Section 7.                                          Legal Expenses.  As provided in Section 9.2 of the
Credit Agreement, the Borrower agrees to reimburse the Agent, upon execution of
this Amendment, for all reasonable out-of-pocket expenses (including attorney’
fees and legal expenses of Dorsey & Whitney LIP, counsel for the Agent)
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 Borrower under the
Amendment Documents, and to pay and save the Agent and the Banks 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 Borrower shall survive any termination of the Credit Agreement.


 


Section 8.                                          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.


 


3

















 


Section 9.                                          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.


 


Section 10.                                   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.


 


Section 11.                                   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 12.                                   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.


 


 


[THE REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY.]


 


4

















 


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first above written.


 


 


	
   

  	
  COMMUNITY FIRST BANKSHARES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas R. Anderson

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION,

  as Agent and a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  SVP

  
				



 


5

















 


 SCHEDULE 4.19 TO THE CREDIT AGREEMENT


AND EXHIBIT A TO THE SIXTH AMENDMENT TO THE CREDIT
AGREEMENT


 


COMMUNITY FIRST BANKSHARES, INC.

SUBSIDIARIES


 


	
  Subsidiary Bank:

  	
   

  	
  Location

  	
   

  	
  Ownership Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Community First
  National Bank

  	
   

  	
  Fargo, N.D.

  	
   

  	
  100.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Nonbank Subsidiaries

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Community
  First Financial, Inc.

  	
   

  	
  Fargo,
  ND

  	
   

  	
  100.00

  	
  %

  
	
  Community
  First Technologies, Inc.

  	
   

  	
  Fargo,
  ND

  	
   

  	
  100.00

  	
  %

  
	
  Community
  First Properties, Inc.

  	
   

  	
  Fargo,
  ND

  	
   

  	
  100.00

  	
  %

  
	
  CFB
  Capital III

  	
   

  	
  Fargo,
  ND

  	
   

  	
  100.00

  	
  %

  
	
  CFB
  Capital IV

  	
   

  	
  Fargo,
  ND

  	
   

  	
  100.00

  	
  %

  
	
  HBC
  Aviation, LLP

  	
   

  	
  Fargo,
  ND

  	
   

  	
  37.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Subsidiaries of Subsidiaries (100% Owned):

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Community
  First Insurance, Inc.

  	
   

  	
  Fargo,
  ND

  	
   

  	
  Subsidiary
  of Community First National Bank

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CFB
  Community Development Corporation

  	
   

  	
  Fargo,
  ND

  	
   

  	
  Subsidiary
  of Community First National Bank

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equity
  Lending, Inc.

  	
   

  	
  Fargo,
  ND

  	
   

  	
  Subsidiary
  of Community First National Bank

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Community First
  Holdings, Inc.

  	
   

  	
  Georgetown, British
  Cayman Islands

  	
   

  	
  Subsidiary of Community
  First National Bank

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Community
  First Home Mortgage, Inc.

  	
   

  	
  Fargo,
  ND

  	
   

  	
  Subsidiary
  of Community First National Bank

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Subsidiaries of Subsidiaries of Subsidiaries

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Community
  First Insurance, Inc. Wyoming

  	
   

  	
  Fargo,
  ND

  	
   

  	
  100%
  Subsidiary of Community First Insurance, Inc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CFIRE,
  Inc.

  	
   

  	
  Fargo,
  ND

  	
   

  	
  100%
  Subsidiary of Community First Holdings, Inc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Community
  First Mortgage, LLC

  	
   

  	
  Fargo,
  ND

  	
   

  	
  50%
  Subsidiary of Community First Home Mortgage, Inc.

  	
   

  



 


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