EXHIBIT 10.5
AMENDMENT NO. 4 TO LOAN AGREEMENT
THIS AMENDMENT NO. 4 TO LOAN AGREEMENT dated as of July 21, 1997 between
AGSCO, INC., a North Dakota corporation (the "Borrower") and First American
Bank, National Association, a national banking association, formerly known as
First American Bank Valley, a North Dakota banking corporation, First National
Bank of North Dakota, a national banking association and Norwest Bank North
Dakota, N.A., a national banking association (hereafter individually referred to
as "Bank" and collectively referred to as "Banks").
RECITALS:
A. The Borrower and the Banks are parties to that certain Loan Agreement
dated as of June 14, 1996, as amended by that certain Amendment No. 1 to Loan
Agreement dated February 28, 1997, that certain Amendment No. 2 to Loan
Agreement dated March 31, 1997, and that certain Amendment No. 3 to Loan
Agreement dated April 15, 1997 (as amended, the "Loan Agreement");
B. The Borrower has requested additional credit and an extension of
existing credit from the Banks;
C. The Banks are willing to agree to Borrower's requests on the condition
that the Loan Agreement be amended as provided herein; and
NOW, THEREFORE, in consideration of the above premises and for other good
and valuable consideration, the receipt of which is hereby acknowledged by each
of the parties hereto, the Loan Agreement is hereby amended as follows:
1. DEFINITIONS.
(a) All capitalized terms used herein shall have the meaning ascribed
to them in the Loan Agreement unless otherwise specifically defined herein;
(b) The following new definition is hereby added to Section 1 of the
Loan Agreement:
"AMENDMENT NO. 4 TO LOAN AGREEMENT" shall mean that certain
Amendment No. 4 to Loan Agreement dated July 21, 1997 executed by the
Borrower and the Banks.
Ex. 10.5 - 1
(c) The definition of "Total Revolving Credit Commitment Amount" is
hereby amended to mean the sum of $12,000,000.00 for the period from and
after the date hereof through September 23, 1997, and thereafter the sum of
$10,300,000.00.
2. AMENDMENTS.
(a) Section 2.1 of the Loan Agreement is hereby amended as follows:
"2.1 COMMITMENTS. Subject to the terms and conditions of this
Agreement, each Bank for itself alone agrees (such agreement as to
each Bank, called its "Commitment") that it will, from time to time on
any Business Day occurring during the period from the date hereof
through the date which is the earlier of ("Termination Date") April 1,
1998, or the date of termination of the Commitments pursuant to
Section 2.5, make Loans to Borrower pursuant to Section 2.2, equal to
the percentage for the periods specified (as to each Bank, called its
"Percentage" and specified opposite the name of such Bank on the
signature page on Amendment No. 4 to Loan Agreement) of the aggregate
amount of Loans requested by Borrower from all Banks on such Business
Day; PROVIDED, HOWEVER, that no Bank shall be required or permitted on
any date to make any Loan if after giving effect thereto the sum of
the aggregate outstanding principal amount of all Loans would exceed
the Maximum Available Loans, or the sum of the aggregate outstanding
principal amount of all Loans made by such Bank would exceed its
Percentage of the Maximum Available Loans. Subject to the terms and
conditions of this Agreement, Borrower may from time to time borrow,
repay and reborrow amounts pursuant to the Commitments."
(b) Section 2.3 of the Loan Agreement is hereby amended as follows:
"2.3 NOTES. All Loans made by any Bank shall be evidenced by a
Third Amended and Restated Note of Borrower, dated July 21, 1997
(herein, together with all promissory notes, if any, accepted in
substitution or replacement therefor, called individually a "Note" and
collectively the "Notes"), payable to the order of such Bank in a
principal amount equal to its Percentage of the Total Revolving Credit
Commitment Amount. The aggregate unpaid amount of Loans set forth on
the records of a Bank shall be rebuttable presumptive evidence of the
principal amount owing and unpaid on the Note of such Bank. Each of
the Notes shall be in the form of EXHIBIT A attached to Amendment No.
4 to Loan Agreement.
(c) Section 2.13 of the Loan Agreement is hereby amended as follows:
"Section 2.13. MANDATORY PREPAYMENT. After July 21, 1997, and
at least once prior to the maturity of the Notes, reduce the
outstanding balance of principal and interest on the Notes to zero for
a period of thirty (30) consecutive days."
Ex. 10.5 - 2
(d) A new section 5.3(h) is hereby added to the Loan Agreement to
state as follows:
"(h) At least annually, and more frequently at Agent's request,
a budget projecting the Borrower's operations for the upcoming fiscal
year of Borrower."
(e) Section 5.13 of the Loan Agreement is hereby amended to delete
the reference to "October 31, 1996" and replace therefor with reference to
"October 31, 1997".
(f) Exhibit I to the Loan Agreement is hereby replaced with Exhibit I
attached to this Amendment No. 4 to Loan Agreement.
(g) The reference to "Amendment No. 4" in the first line of the
preamble to Amendment No. 3 to the Loan Agreement is hereby deleted and
replaced with the reference "Amendment No. 3".
3. EFFECTIVE DATE. The amendment provided for herein shall be effective
as of the date hereof, except as specifically provided for herein.
4. NO DEFAULTS. After giving effect to this Amendment No. 4, the
Borrower hereby represents and warrants to the Banks that no Default or Event of
Default has occurred or is continuing under the Loan Agreement, as amended
hereby, and no event has occurred which with the passage of time or giving of
notice would mature into a Default or an Event of Default.
5. REFERENCES. All references in the Notes and all other Loan Documents
to the Loan Agreement shall mean the Loan Agreement as amended by this Amendment
No. 4.
6. REPRESENTATIONS AND WARRANTIES. The Borrower hereby restates and
reaffirms to the Banks all the representations and warranties contained in the
Loan Agreement the same as if made on the date hereof and fully set forth
herein.
7. NO OTHER AMENDMENTS. Except as specifically amended herein, all of
the terms, covenants and conditions of the Loan Agreement remain in full force
and effect.
8. RECITALS. The above recitals are true and correct as of the date
hereof and constitute a part of this Agreement.
9. COUNTERPARTS. This Amendment No. 4 to Loan Agreement may be executed
in a number of counterparts, each of which shall be deemed an original and all
of which shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 4
as of the date and year first written above.
Ex. 10.5 - 3
AGSCO, INC.
By:
--------------------------------
Xxxxx Xxxxx
Its President
First American Bank, National Association,
f/k/a First American Bank Valley
By
----------------------------------
Its
---------------------------------
Commitment Term Note Term Note
---------- --------- ---------
Period Percentage of Bank Percentage to Bank
------ ---------- ------- ---------- -------
Date hereof
through
9/23/97 44.17% $5,300,000.00 50% $787,500.00
From and after
9/24/97 48.54% $5,000,00.00 50% $787,500.00
Ex. 10.5 - 4
First National Bank North Dakota
By
----------------------------------
Its
---------------------------------
Commitment Term Note Term Note
---------- --------- ---------
Period Percentage of Bank Percentage to Bank
------ ---------- ------- ---------- -------
Date hereof
through 9/23/97 28.33% $3,400,000.00 50% $787,500.00
From and after
9/24/97 29.13% $3,000,00.00 50% $787,500.00
Ex. 10.5 - 5
Norwest Bank North Dakota, N.A.
By
----------------------------------
Its
---------------------------------
Period Percentage Commitment of Bank
------ ---------- ------------------
Date hereof
through 9/23/97 27.50% $3,300,000.00
From and after
9/24/97 22.33% $2,300,00.00
Ex. 10.5 - 6
EXHIBIT A
THIRD AMENDED AND RESTATED NOTE
As evidence of its obligations to , as ,
under that certain Second Amended and Restated Note dated March 31, 1997 in the
original principal amount of $ and to evidence an additional extension
of credit, the undersigned delivers this Third Amended and Restated Note in
substitution for, but not in payment of, such Note and to evidence such
additional credit.
$ Grand Forks, North Dakota
Due: April 1, 1998 July 21, 1997
FOR VALUE RECEIVED, the undersigned, AGSCO, INC., a North Dakota
corporation, promises to pay to the order of , a
(the "Bank"), at the office of its agent bank, First American Bank,
National Association, at such agents office in Grand Forks, North Dakota, the
sum of AND NO/100THS DOLLARS ($ ), or such
lesser sum as may actually be owing under borrowings made pursuant to that
certain Loan Agreement (the "Loan Agreement") dated June 14, 1996, as amended by
that certain Amendment No. 1 to Loan Agreement dated February 28, 1997, that
certain Amendment No. 2 to Loan Agreement dated March 31, 1997, that certain
Amendment No. 3 to Loan Agreement dated April 15, 1997, and that certain
Amendment No. 4 to Loan Agreement dated July 21, 1997, between the undersigned
and the Bank, with interest on the principal balance from the date hereof
calculated at a rate per annum at all times equal to the Reference Rate
(computed on the basis of actual days elapsed in a year of 360 days).
The term "Reference Rate" shall be that rate of interest published in the
WALL STREET JOURNAL as the lowest New York Prime Rate. All changes in the rate
of interest due hereon are effective automatically on the same day the Reference
Rate change takes effect.
From and after the date hereof this Note shall be payable as follows:
(a) interest accrued hereon shall be payable on the first day of each
month commencing August 1, 1997; and
(b) all unpaid principal and interest accrued thereon shall be due
and payable in full on April 1, 1998.
All payments under this Note shall be applied initially against accrued
interest and thereafter in reduction of principal.
Ex. 10.5 - 7
THIRD AMENDED AND RESTATED NOTE
PAGE TWO
$ Grand Forks, North Dakota
Due: April 1, 1998 July 21, 1997
The undersigned agrees to pay a late payment service charge in an amount
equal to five percent (5.0%) of any installment of principal or interest
(including any final installment) not received by the Bank within ten (10) days
of the due date.
This Note may be prepaid at any time without premium or penalty.
This Note is issued in connection with the Loan Agreement. The holder
hereof shall have all the advantages of the Loan Agreement and reference to the
Loan Agreement is hereby made for a statement of the terms and conditions under
which the indebtedness evidenced hereby was incurred, under which borrowings
hereunder may be limited and under which the amounts outstanding hereunder may
be accelerated.
So long as no Event of Default (as defined in the Loan Agreement) and no
event which would be an Event of Default on the giving of notice, lapse of time
or both, has occurred and is continuing and subject to compliance with all the
terms and conditions of this Note and the Loan Agreement, the undersigned may
borrow, repay and reborrow regardless of the cumulative amount of advances
hereunder up to the Bank's Percentage of the Maximum Available Loans specified
in the Loan Agreement.
Presentment and demand for payment, notice of dishonor, protest and notice
of protest are hereby waived. In the Event of Default, as set forth above, the
undersigned agrees to pay costs of collection and reasonable attorneys' fees.
The undersigned hereby submits itself to the jurisdiction of the courts of
the State of North Dakota and the Federal courts of the United States located in
such state in respect of all actions arising out of or in connection with the
interpretation or enforcement of this Note, waives any argument that venue in
such forums is not convenient and agrees that any action instituted by it shall
be venued in such forums.
AGSCO, INC.
By:
-----------------------------------------
Xxxxx Xxxxx
Its President
Ex. 10.5 - 8
EXHIBIT I
BORROWING BASE AND COMPLIANCE CERTIFICATE
First American Bank, National Association
000 Xxxxx Xxxxxx Xxxxx
P.O. Box 13118
Grand Forks, North Dakota 58208-3118
Attention: Xxxx X. Xxxxxxxx
First National Bank North Dakota
4th and XxXxxx Xxxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxx Xxxxxxxxxxx
Norwest Bank North Dakota, N.A.
X.X. Xxx 000
Xxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Xxxx Xxxxxx
Re: Loan Agreement between AGSCO, INC., a North Dakota corporation
("Borrower") and First American Bank, National Association, a national
association, formerly known as First American Bank Valley, a North
Dakota banking corporation, First National Bank North Dakota, a
national banking association and Norwest Bank North Dakota, N.A., a
national banking association, formerly known as American Bank
Moorhead, a Minnesota banking corporation (collectively, the "Banks")
dated June 14, 1996, as amended by that certain Amendment No. 1 to
Loan Agreement dated February 28, 1997, that certain Amendment No. 2
to Loan Agreement dated March 31, 1997, that certain Amendment No. 3
to Loan Agreement dated April 15, 1997, and that certain Amendment No.
4 to Loan Agreement dated July 21, 1997 ("Loan Agreement").
Ladies and Gentlemen:
Pursuant to that certain Loan Agreement, and any amendments thereto and
extensions thereof, the Borrower hereby:
A. repeats and reaffirms to the Banks each and all of the representations
and warranties made by the Borrower in the Loan Agreement and the agreements
related thereto, and certifies to the Banks that each and all of said warranties
and representations are true and correct as of the date hereof; and
Ex. 10.5 - 9
B. represents, warrants and certifies that the Borrower owns, subject
only to the security interest granted to the Banks, the following properties:
1. Accounts
(a) Accounts Receivable
as of , 199 $
----------
(b) Accrued Rebates Receivable
(Limited to 4.5% of commodity sales) $
----------
(c) Invoiced Rebates Receivable $
----------
(d) Total Accounts Receivable $
----------
(e) Less: Ineligible Accounts Receivable
(i) Over 90 days $
---------
(ii) 10% over 90 days $
---------
(iii) bankruptcy of $
---------
account debtor $
---------
(iv) accounts receivable from
related parties $
---------
(v) accrued rebates receivable
in excess of 4.5% of
commodity sales $
---------
(vi) other accounts deemed
ineligible by Bank $
---------
Total Ineligibles $
----------
(f) Eligible Accounts Receivable
(Line 1(d) minus Line 1(e)) $
----------
(g) Loan Value of Accounts Receivable
(Line 1(f) times 70%) $
----------
2. Inventory
(a) Total Inventory as of , 19 $
----------
(b) Work in Process $
----------
(c) Eligible Inventory
(Line 2(a) plus Line 2(b)) $
----------
(d) Loan Value of Inventory
(Line 2(c) times 60%) $
----------
3. Outstanding Balance of Revolving Notes $
----------
4. Margin (Deficit)
(Line 1d plus 2b minus Line 3) $
----------
Ex. 10.5 - 10
C. represents, warrants and certifies that there has not been (except as
may be otherwise indicated below) any change since the computation dates
specified above to the date hereof which would materially reduce the amounts
shown above if such amounts were computed as of the date of this Certificate.
D. The undersigned, the senior accountant officer of the Borrower, hereby
certifies as of ____________, 199__ that the following computations of
financial covenants and tests contained in the Loan Agreement and related
documents are as follows:
Tangible Net Worth:
a) Net Worth ---------------------
b) Intangible Assets ---------------------
c) Tangible Net Worth (a-b) ---------------------
Required: Greater than or equal to $5,750,000.00 (Section 5.10)
Debt to Tangible Net Worth:
a) Indebtedness ---------------------
b) Tangible Net Worth ---------------------
c) Debt to Tangible Net
Worth (a divided by b) ---------------------
Required: Less than or equal to 2.5 to 1 for each fiscal year end
(Section 5.12)
Current Ratio:
a) Current Assets ---------------------
b) Current Liability ---------------------
c) Current Ratio
(a divided by b) ---------------------
Required: Greater than or equal to 1.2 to 1 at each fiscal year end and
greater than or equal to 1.1 to 1 at the end of each calendar
month (Section 5.11)
Cash Flow Coverage Ratio:
a) Consolidated Net Income $
--------------------
b) Interest $
--------------------
c) Depreciation $
--------------------
d) Total Cash Available
(lines a + b + c) $
--------------------
e) Mandatory Debt Retirement $
--------------------
Ex. 10.5 - 11
f) Interest $
--------------------
g) Dividends $
--------------------
h) Net Capital Purchase $
--------------------
(i) Capital Expenditures $
--------------------
(ii) Aggregate Term
Note Advances $
--------------------
(iii) Total
(Line h(i) less h(ii)) $
--------------------
i) Total Cash Requirements
(lines e + f + g + h(iii)) $
--------------------
(j) Cash Flow Coverage Ratio
(line (d) divided by line (i)) $
--------------------
Required: Not less than 1.20 as of October 31, 1996 (Section 5.13)
Advances to Stockholders
a) Outstanding to date
--------------------
Required: Less than or equal to $50,000.00 (Section 6.6)
All capitalized terms not defined herein shall have the meaning ascribed to
them in the Loan Agreement.
The undersigned further confirms that each representation and warranty
contained in the Loan Agreement and related documents is true and accurate as
the date hereof.
The undersigned further confirms that no Event of Default has occurred or
is continuing and no event which with the giving notice or the passage of time
or both would mature into an Event of Default has occurred or is continuing.
Sincerely,
AGSCO, INC.
By
--------------------------------
Its
--------------------------------
Ex. 10.5 - 12
THIRD AMENDED AND RESTATED NOTE
As evidence of its obligations to First American Bank, National
Association, a national banking association, formerly known as First American
Bank Valley, a North Dakota banking corporation, under that certain Second
Amended and Restated Note dated March 31, 1997 in the original principal amount
of $5,000,000.00 and to evidence an additional extension of credit, the
undersigned delivers this Third Amended and Restated Note in substitution for,
but not in payment of, such Note and to evidence such additional credit.
$5,300,000.00 Grand Forks, North Dakota
Due: April 1, 1998 July 21, 1997
FOR VALUE RECEIVED, the undersigned, AGSCO, INC., a North Dakota
corporation, promises to pay to the order of FIRST AMERICAN BANK, NATIONAL
ASSOCIATION, a national banking association, formerly known as First American
Bank Valley, a North Dakota banking corporation (the "Bank"), at Grand Forks,
North Dakota, the sum of FIVE MILLION THREE HUNDRED THOUSAND AND NO/100THS
DOLLARS ($5,300,000.00), or such lesser sum as may actually be owing under
borrowings made pursuant to that certain Loan Agreement (the "Loan Agreement")
dated June 14, 1996, as amended by that certain Amendment No. 1 to Loan
Agreement dated February 28, 1997, that certain Amendment No. 2 to Loan
Agreement dated March 31, 1997, that certain Amendment No. 3 to Loan Agreement
dated April 15, 1997, and that certain Amendment No. 4 to Loan Agreement dated
July 21, 1997, between the undersigned and the Bank, with interest on the
principal balance from the date hereof calculated at a rate per annum at all
times equal to the Reference Rate (computed on the basis of actual days elapsed
in a year of 360 days).
The term "Reference Rate" shall be that rate of interest published in the
WALL STREET JOURNAL as the lowest New York Prime Rate. All changes in the rate
of interest due hereon are effective automatically on the same day the Reference
Rate change takes effect.
From and after the date hereof this Note shall be payable as follows:
(a) interest accrued hereon shall be payable on the first day of
each month commencing August 1, 1997; and
(b) all unpaid principal and interest accrued thereon shall be due
and payable in full on April 1, 1998.
All payments under this Note shall be applied initially against accrued
interest and thereafter in reduction of principal.
Ex. 10.5 - 13
THIRD AMENDED AND RESTATED NOTE
PAGE TWO
$5,300,000.00 Grand Forks, North Dakota
Due: April 1, 1998 July 21, 1997
The undersigned agrees to pay a late payment service charge in an amount
equal to five percent (5.0%) of any installment of principal or interest
(including any final installment) not received by the Bank within ten (10) days
of the due date.
This Note may be prepaid at any time without premium or penalty.
This Note is issued in connection with the Loan Agreement. The holder
hereof shall have all the advantages of the Loan Agreement and reference to the
Loan Agreement is hereby made for a statement of the terms and conditions under
which the indebtedness evidenced hereby was incurred, under which borrowings
hereunder may be limited and under which the amounts outstanding hereunder may
be accelerated.
So long as no Event of Default (as defined in the Loan Agreement) and no
event which would be an Event of Default on the giving of notice, lapse of time
or both, has occurred and is continuing and subject to compliance with all the
terms and conditions of this Note and the Loan Agreement, the undersigned may
borrow, repay and reborrow regardless of the cumulative amount of advances
hereunder up to the Bank's Percentage of the Maximum Available Loans specified
in the Loan Agreement.
Presentment and demand for payment, notice of dishonor, protest and notice
of protest are hereby waived. In the Event of Default, as set forth above, the
undersigned agrees to pay costs of collection and reasonable attorneys' fees.
The undersigned hereby submits itself to the jurisdiction of the courts of
the State of North Dakota and the Federal courts of the United States located in
such state in respect of all actions arising out of or in connection with the
interpretation or enforcement of this Note, waives any argument that venue in
such forums is not convenient and agrees that any action instituted by it shall
be venued in such forums.
AGSCO, INC.
By:
------------------------------------------
Xxxxx Xxxxx
Its President
Ex. 10.5 - 14
THIRD AMENDED AND RESTATED NOTE
As evidence of its obligations to First National Bank North Dakota, a
national banking association, under that certain Second Amended and Restated
Note dated March 31, 1997 in the original principal amount of $3,000,000.00 and
to evidence an additional extension of credit, the undersigned delivers this
Third Amended and Restated Note in substitution for, but not in payment of, such
Note and to evidence such additional credit.
$3,400,000.00 Grand Forks, North Dakota
Due: April 1, 1998 July 21, 1997
FOR VALUE RECEIVED, the undersigned, AGSCO, INC., a North Dakota
corporation, promises to pay to the order of FIRST NATIONAL BANK NORTH DAKOTA, a
national banking association (the "Bank"), at the office of its agent bank,
First American Bank Valley, at such agents office in Grand Forks, North Dakota,
the sum of THREE MILLION FOUR HUNDRED THOUSAND AND NO/100THS DOLLARS
($3,400,000.00), or such lesser sum as may actually be owing under borrowings
made pursuant to that certain Loan Agreement (the "Loan Agreement") dated June
14, 1996, as amended by that certain Amendment No. 1 to Loan Agreement dated
February 28, 1997, that certain Amendment No. 2 to Loan Agreement dated March
31, 1997, that certain Amendment No. 3 to Loan Agreement dated April 15, 1997,
and that certain Amendment No. 4 to Loan Agreement dated July 21, 1997, between
the undersigned and the Bank, with interest on the principal balance from the
date hereof calculated at a rate per annum at all times equal to the Reference
Rate (computed on the basis of actual days elapsed in a year of 360 days).
The term "Reference Rate" shall be that rate of interest published in the
WALL STREET JOURNAL as the lowest New York Prime Rate. All changes in the rate
of interest due hereon are effective automatically on the same day the Reference
Rate change takes effect.
From and after the date hereof this Note shall be payable as follows:
(a) interest accrued hereon shall be payable on the first day of
each month commencing August 1, 1997; and
(b) all unpaid principal and interest accrued thereon shall be due
and payable in full on April 1, 1998.
All payments under this Note shall be applied initially against accrued
interest and thereafter in reduction of principal.
The undersigned agrees to pay a late payment service charge in an amount
equal to five percent (5.0%) of any installment of principal or interest
(including any final installment) not received by the Bank within ten (10) days
of the due date.
Ex. 10.5 - 15
THIRD AMENDED AND RESTATED NOTE
PAGE TWO
$3,400,000.00 Grand Forks, North Dakota
Due: April 1, 1998 July 21, 1997
This Note may be prepaid at any time without premium or penalty.
This Note is issued in connection with the Loan Agreement. The holder
hereof shall have all the advantages of the Loan Agreement and reference to the
Loan Agreement is hereby made for a statement of the terms and conditions under
which the indebtedness evidenced hereby was incurred, under which borrowings
hereunder may be limited and under which the amounts outstanding hereunder may
be accelerated.
So long as no Event of Default (as defined in the Loan Agreement) and no
event which would be an Event of Default on the giving of notice, lapse of time
or both, has occurred and is continuing and subject to compliance with all the
terms and conditions of this Note and the Loan Agreement, the undersigned may
borrow, repay and reborrow regardless of the cumulative amount of advances
hereunder up to the Bank's Percentage of the Maximum Available Loans specified
in the Loan Agreement.
Presentment and demand for payment, notice of dishonor, protest and notice
of protest are hereby waived. In the Event of Default, as set forth above, the
undersigned agrees to pay costs of collection and reasonable attorneys' fees.
The undersigned hereby submits itself to the jurisdiction of the courts of
the State of North Dakota and the Federal courts of the United States located in
such state in respect of all actions arising out of or in connection with the
interpretation or enforcement of this Note, waives any argument that venue in
such forums is not convenient and agrees that any action instituted by it shall
be venued in such forums.
AGSCO, INC.
By:
-----------------------------------------
Xxxxx Xxxxx
Its President
Ex. 10.5 - 16
THIRD AMENDED AND RESTATED NOTE
As evidence of its obligations to Norwest Bank North Dakota, N.A., a
national banking association, under that certain Second Amended and Restated
Note dated March 31, 1997 in the original principal amount of $2,300,000.00 and
to evidence an additional extension of credit, the undersigned delivers this
Third Amended and Restated Note in substitution for, but not in payment of, such
Note and to evidence such additional credit.
$3,300,000.00 Grand Forks, North Dakota
Due: April 1, 1998 July 21, 1997
FOR VALUE RECEIVED, the undersigned, AGSCO, INC., a North Dakota
corporation, promises to pay to the order of NORWEST BANK NORTH DAKOTA, N.A., a
national banking association (the "Bank"), at the office of its agent bank,
First American Bank Valley, at such agents office in Grand Forks, North Dakota,
the sum of THREE MILLION THREE HUNDRED THOUSAND AND NO/100THS DOLLARS
($3,300,000.00), or such lesser sum as may actually be owing under borrowings
made pursuant to that certain Loan Agreement (the "Loan Agreement") dated June
14, 1996, as amended by that certain Amendment No. 1 to Loan Agreement dated
February 28, 1997, that certain Amendment No. 2 to Loan Agreement dated March
31, 1997, that certain Amendment No. 3 to Loan Agreement dated April 15, 1997,
and that certain Amendment No. 4 to Loan Agreement dated July 21, 1997, between
the undersigned and the Bank, with interest on the principal balance from the
date hereof calculated at a rate per annum at all times equal to the Reference
Rate (computed on the basis of actual days elapsed in a year of 360 days).
The term "Reference Rate" shall be that rate of interest published in the
WALL STREET JOURNAL as the lowest New York Prime Rate. All changes in the rate
of interest due hereon are effective automatically on the same day the Reference
Rate change takes effect.
From and after the date hereof this Note shall be payable as follows:
(a) interest accrued hereon shall be payable on the first day of
each month commencing August 1, 1997; and
(b) all unpaid principal and interest accrued thereon shall be due
and payable in full on April 1, 1998.
All payments under this Note shall be applied initially against accrued
interest and thereafter in reduction of principal.
The undersigned agrees to pay a late payment service charge in an amount
equal to five percent (5.0%) of any installment of principal or interest
(including any final installment) not received by the Bank within ten (10) days
of the due date.
Ex. 10.5 - 17
THIRD AMENDED AND RESTATED NOTE
PAGE TWO
$3,300,000.00 Grand Forks, North Dakota
Due: April 1, 1998 July 21, 1997
This Note may be prepaid at any time without premium or penalty.
This Note is issued in connection with the Loan Agreement. The holder
hereof shall have all the advantages of the Loan Agreement and reference to the
Loan Agreement is hereby made for a statement of the terms and conditions under
which the indebtedness evidenced hereby was incurred, under which borrowings
hereunder may be limited and under which the amounts outstanding hereunder may
be accelerated.
So long as no Event of Default (as defined in the Loan Agreement) and no
event which would be an Event of Default on the giving of notice, lapse of time
or both, has occurred and is continuing and subject to compliance with all the
terms and conditions of this Note and the Loan Agreement, the undersigned may
borrow, repay and reborrow regardless of the cumulative amount of advances
hereunder up to the Bank's Percentage of the Maximum Available Loans specified
in the Loan Agreement.
Presentment and demand for payment, notice of dishonor, protest and notice
of protest are hereby waived. In the Event of Default, as set forth above, the
undersigned agrees to pay costs of collection and reasonable attorneys' fees.
The undersigned hereby submits itself to the jurisdiction of the courts of
the State of North Dakota and the Federal courts of the United States located in
such state in respect of all actions arising out of or in connection with the
interpretation or enforcement of this Note, waives any argument that venue in
such forums is not convenient and agrees that any action instituted by it shall
be venued in such forums.
AGSCO, INC.
By:
-------------------------------------------
Xxxxx Xxxxx
Its President
Ex. 10.5 - 18
