**Exhibit10.10(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 andamong Community First Bankshares, Inc., a Delaware corporation (the “Borrower”),U.S. Bank National Association, a national banking association, as agent (insuch capacity, the “Agent”) for certain banks (the “Banks”) party to the CreditAgreement (as defined below), and the Banks.

 

**RECITALS**

 

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

 

2.                                       The Borrowerdesires to amend certain provisions of the Credit Agreement, and the Agent andthe Banks have agreed to make such amendments, subject to the terms andconditions set forth in this Amendment.

 

**AGREEMENT**

 

**NOW, THEREFORE**, for good and valuableconsideration, the receipt and adequacy of which are hereby acknowledged, theparties hereto hereby covenant and agree to be bound as follows:

 

# **Section 1.****                                          **Capitalized Terms****.  Capitalized terms used herein and nototherwise defined herein shall have the meanings assigned to them in the CreditAgreement, unless the context shall otherwise require.

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# **Section 2.****                                          **Amendments****.

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## **2.1****                              **Thedefinition of “Revolving Commitment Ending Date”contained in Section 1.1 of the Credit Agreement is hereby amended in itsentirety to read as follows:

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

 

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

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# **Section 3.****                                          **Effectiveness ofAmendments****.  Theamendments contained in this Amendment shall become effective as ofOctober 26, 2003 upon delivery by the Borrower of, and compliance by theBorrower with, the following:

 

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## **3.1****                              **ThisAmendment, duly executed by the Borrower.

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## **3.2****                              **Acopy of the resolutions of the Board of Directors of the Borrower authorizingthe execution, delivery and performance of this Amendment certified as true andaccurate by its Secretary or Assistant Secretary, along with a certification bysuch Secretary or Assistant Secretary (i) certifying that there has been noamendment to the Articles of Incorporation or Bylaws of the Borrower since trueand accurate copies of the same were delivered to the Agent with a certificateof the Secretary of the Borrower dated October 30, 1998, and (ii)identifying each officer of the Borrower authorized to execute this Amendmentand any other instrument or agreement executed by the Borrower in connectionwith this Amendment (collectively, the “Amendment Documents”), and certifyingas to specimens of such officer’s signature and such officer’s incumbency insuch offices as such officer holds.

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## **3.3****                              **Aconsent letter executed by Wells Fargo Bank, N.A., consenting to the deliveryand execution of this Amendment.

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## **3.4****                              **Certifiedcopies of all documents evidencing any necessary corporate action, consent orgovernmental or regulatory approval (if any) with respect to this Amendment.

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## **3.5****                              **TheBorrower shall have satisfied such other conditions as specified by the Agentand the Banks, including payment of all unpaid legal fees and expenses incurredby the Agent through the date of this Amendment in connection with the CreditAgreement and the Amendment Documents.

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# **Section 4.****                                          **Representations,Warranties. Authority, No Adverse Claim****.

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## **4.1****                               **Reassertion ofRepresentations and Warranties, No Default****.****  The Borrower hereby represents that on andas of the date hereof and after giving effect to this Amendment (a) all of therepresentations and warranties contained in the Credit Agreement are true,correct and complete in all respects as of the date hereof as though made onand as of such date, except for changes permitted by the terms of the CreditAgreement, and (b) there will exist no Default or Event of Default under theCredit Agreement as amended by this Amendment on such date which has not beenwaived by the Agent and the Banks.

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## **4.2****                               **Authority, No Conflict,No Consent Required****. The Borrower represents and warrantsthat the Borrower has the power and legal right and authority to enter into theAmendment Documents and has duly authorized as appropriate the execution anddelivery of the Amendment Documents and other agreements and documents executedand delivered by the Borrower in connection herewith or therewith by propercorporate action, and none of the Amendment Documents nor the agreementscontained herein or therein contravenes or constitutes a default under anyagreement, instrument or indenture to which the Borrower is a party or asignatory or a provision of the Borrower’s Articles of Incorporation, Bylaws orany other agreement or requirement of law, or result in the

 

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## imposition of any Lien on any of its property under any agreementbinding on or applicable to the Borrower or any of its property except, if any,in favor of the Agent.  The Borrowerrepresents and warrants that no consent, approval or authorization of orregistration or declaration with any Person, including but not limited to anygovernmental authority, is required in connection with the execution anddelivery by the Borrower of the Amendment Documents or other agreements and documentsexecuted and delivered by the Borrower in connection therewith or theperformance of obligations of the Borrower therein described, except for thosewhich the Borrower has obtained or provided and as to which the Borrower hasdelivered certified copies of documents evidencing each such action to theAgent.

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## **4.3****                               **No Adverse Claim****.  The Borrower warrants, acknowledges andagrees that no events have taken place and no circumstances exist at the datehereof which would give the Borrower a basis to assert a defense, offset orcounterclaim to any claim of the Agent or the Banks with respect to theObligations.

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# **Section 5.****                                          **Affirmation ofCredit Agreement, Further References****.  The Agent, the Banks and the Borrower eachacknowledge and affirm that the Credit Agreement, as hereby amended, is herebyratified and confirmed in all respects and all terms, conditions and provisionsof the Credit Agreement, except as amended by this Amendment, shall remainunmodified and in full force and effect. All references in any document or instrument to the Credit Agreement arehereby amended and shall refer to the Credit Agreement as amended by thisAmendment.

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# **Section 6.****                                          **Successors****.  The Amendment Documents shall be bindingupon the Borrower, the Agent and the Banks and their respective successors andassigns, and shall inure to the benefit of the Borrower, the Agent and theBanks and the successors and assigns of the Agent and the Banks.

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# **Section 7.****                                          **Legal Expenses****.  As provided in Section 9.2 of theCredit Agreement, the Borrower agrees to reimburse the Agent, upon execution ofthis 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 withthe negotiation, preparation and execution of the Amendment Documents and allother documents negotiated, prepared and executed in connection with theAmendment Documents, and in enforcing the obligations of the Borrower under theAmendment Documents, and to pay and save the Agent and the Banks harmless fromall liability for, any stamp or other taxes which may be payable with respectto the execution or delivery of the Amendment Documents, which obligations ofthe Borrower shall survive any termination of the Credit Agreement.

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# **Section 8.****                                          **Counterparts****.  The Amendment Documents may be executed inseveral counterparts as deemed necessary or convenient, each of which, when soexecuted, shall be deemed an original, provided that all such counterpartsshall be regarded as one and the same document, and either party to theAmendment Documents may execute any such agreement by executing a counterpartof such agreement.

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# **Section 9.****                                          **Governing Law****.  **THE AMENDMENT DOCUMENTSSHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUTGIVING EFFECT TO CONFLICT OF LAW PRINCIPLES THEREOF, BUT GIVING EFFECT TOFEDERAL LAWS APPLICABLE TO NATIONAL BANKS, THEIR HOLDING COMPANIES AND THEIRAFFILIATES.**

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# **Section 10.****                                   **Merger andIntegration, Superseding Effect****.  This Amendment, from and after the date hereof, embodies theentire agreement and understanding between the parties hereto and supersedesand has merged into this Amendment all prior oral and written agreements on thesame subjects by and between the parties hereto with the effect that thisAmendment, shall control with respect to the specific subjects hereof andthereof.

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# **Section 11.****                                   **Headings****.  The headings of various sections of thisAmendment have been inserted for reference only and shall not be deemed to be apart of this Amendment.

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# **Section 12.****                                   **Severability****.  Whenever possible, each provision of thisAmendment and the other Amendment Documents and any other statement, instrumentor transaction contemplated hereby or thereby or relating hereto or theretoshall be interpreted in such manner as to be effective, valid and enforceableunder the applicable law of any jurisdiction, but, if any provision of thisAmendment, the other Amendment Documents or any other statement, instrument ortransaction contemplated hereby or thereby or relating hereto or thereto shallbe held to be prohibited, invalid or unenforceable under the applicable law,such provision shall be ineffective in such jurisdiction only to the extent ofsuch prohibition, invalidity or unenforceability, without invalidating orrendering unenforceable the remainder of such provision or the remainingprovisions of this Amendment, the other Amendment Documents or any other statement,instrument or transaction contemplated hereby or thereby or relating hereto orthereto in such jurisdiction, or affecting the effectiveness, validity orenforceability of such provision in any other jurisdiction.

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to beexecuted 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 |
|        |                                                      |  |  |

 

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** SCHEDULE 4.19 TO THE CREDIT AGREEMENT**

**AND EXHIBIT A TO THE SIXTH AMENDMENT TO THE CREDITAGREEMENT**

 

**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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