FIFTH AMENDMENT TO
AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT (“Fifth Amendment”) is made as of
this ___ day of September, 2008, by and among BANK OF AMERICA,
N.A., a national banking association (“Bank of
America”) with an office at 135 South LaSalle Street, Floor,
Chicago, Illinois 60603, individually as a Lender and as Agent
(“Agent”) for itself and any other financial
institution which is or becomes a party hereto (each such financial
institution, including Bank of America, is referred to hereinafter
individually as a “Lender” and collectively as the
“Lenders”), the LENDERS and MFRI, INC. ,
a Delaware corporation (“MFRI”), MIDWESCO FILTER
RESOURCES, INC. , a Delaware corporation
(“Midwesco”), PERMA-PIPE, INC. , a Delaware
corporation (“Perma-Pipe”), THERMAL CARE, INC. ,
a Delaware corporation (“Thermal Care”), TDC FILTER
MANUFACTURING, INC. , a Delaware corporation
(“TDC”) and MIDWESCO MECHANICAL AND ENERGY, INC.
, a Delaware corporation (“Mechanical”). Capitalized
terms used in this Agreement have the meanings assigned to them in
Appendix A, General Definitions. Accounting terms not
otherwise specifically defined herein shall be construed in
accordance with GAAP consistently applied. MFRI, Midwesco,
Perma-Pipe, Thermal Care, TDC and Mechanical are sometimes
hereinafter referred to individually as a “Borrower”
and collectively as “Borrowers”.
WHEREAS, Borrowers (other than
Mechanical), Agent, and the Lender signatories thereto hereto
entered into that certain Amended and Restated Loan and Security
Agreement dated December 15, 2006, as amended by that First
Amendment to Amended and Restated Loan and Security Agreement dated
February 28, 2007 by and among Borrowers, Agent and Lenders , by
that certain Second Amendment to Amended and Restated Loan and
Security Agreement dated August 28, 2007 by and among Borrowers,
Agent and Lenders, by that certain Third Amendment to Amended and
Restated Loan and Security Agreement dated December 13, 2007
by and among Borrowers, Agent and Lenders and by that certain
Fourth Amendment to Amended and Restated Loan and Security
Agreement dated April 17, 2008 by and among Borrowers, Agent and
Lenders (said Amended and Restated Loan and Security Agreement, as
amended from time to time, the “Loan Agreement”);
and
WHEREAS, Borrowers, Agent and
Lenders desire to amend and restate the Loan Agreement as provided
herein;
NOW, THEREFORE, in consideration of
the
