FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST
AMENDMENT
This
Amendment is entered into as of June 30, 2006 by and among MDU Resources Group,
Inc., a Delaware corporation (the “Borrower”); Xxxxx Fargo Bank, National
Association, a national banking association, as administrative agent under
the
Credit Agreement described below (in such capacity, the “Agent”); and the
undersigned Lenders (as defined in the Credit Agreement described
below).
The
Borrower, the Agent and the Lenders are parties to a Credit Agreement dated
as
of June 21, 2005 (together with all amendments, modifications and restatements
thereof, the “Credit Agreement”).
The
Borrower has asked the Agent and the Lenders to increase the amount available
for borrowing under the Credit Agreement and to extend the term of the Credit
Agreement, and the Agent and the Lenders are willing to do so on the terms
and
conditions set forth herein.
ACCORDINGLY,
in consideration of the premises and of the mutual covenants and agreements
herein contained, it is agreed as follows:
1. Definitions.
All
terms defined in the Credit Agreement that are not otherwise defined herein
shall have the meanings given them in the Credit Agreement.
2. Amendments
to Credit Agreement.
The
Credit Agreement is hereby amended as follows:
(a) The
phrase, “$100,000,000 Revolving Credit Facility”, on the cover page of the
Credit Agreement is hereby deleted, and the phrase, “$125,000,000 Revolving
Credit Facility”, is substituted therefor.
(b) The
definitions of “Aggregate Facility Amount”, “Maximum Aggregate Facility Amount”
and “Revolving Period Termination Date” in Section 1.1 of the Credit Agreement
are hereby amended, respectively, to read as follows:
“Aggregate
Facility Amount” means $125,000,000, as such amount may be reduced pursuant to
Section 2.8 or increased pursuant to Section 2.16.
“Maximum
Aggregate Facility Amount” means $150,000,000, unless said amount is reduced
pursuant to Section 2.8, in which event it means the amount to which said amount
is reduced.
“Revolving
Period Termination Date” means June 21, 2011.
(c) The
first
sentence of Section 4.5 of the Credit Agreement is hereby deleted, and the
following is substituted therefor:
As
of
June 22, 2006, the Borrower has furnished to the Lenders its audited
consolidated financial statement as of December 31, 2005, and its unaudited
interim financial statement as of March 31, 2006.
(d) The
amount, “$15,000,000”, in Section 4.13(d) of the Credit Agreement is hereby
deleted, and the amount, “$25,000,000”, is substituted therefor.
(e) Exhibit
A
to the Credit Agreement is hereby replaced in its entirety with Exhibit A to
this Amendment.
3. Replacement
Notes.
Concurrent with the execution of this Amendment, the Borrower shall execute
and
deliver to the Agent its promissory notes (the “Replacement Notes”) in the form
of Exhibit B to the Credit Agreement, dated the date hereof, payable to the
order of each Lender in an amount equal to that Lender’s Facility Amount, after
giving effect to the amendments set forth in Section 2 above. The Lenders shall
accept the Replacement Notes in substitution for, but not in payment of, the
Notes (as defined prior to giving effect to this Amendment). Each reference
in
the Credit Agreement to the “Notes” shall hereafter be deemed to be a reference
to the Replacement Notes.
4. Representations
and Warranties.
The
Borrower hereby represents and warrants to the Agent and the Lenders as
follows:
(a) The
Borrower has all requisite power and authority, corporate or otherwise, to
execute and deliver this Amendment, and to perform this Amendment and the Credit
Agreement as amended hereby, except as noted in Schedule 4.2 to the Credit
Agreement with respect to Borrowings made after December 31, 2006. This
Amendment has been duly and validly executed and delivered to the Agent and
the
Lenders by the Borrower, and this Amendment, and the Credit Agreement as amended
hereby, constitute the Borrower’s legal, valid and binding obligations
enforceable in accordance with their terms, except to the extent that such
enforcement may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors’ rights generally or by general equitable
principles.
(b) The
execution, delivery and performance by the Borrower of this Amendment, and
the
performance of the Credit Agreement as amended hereby, have been duly authorized
by all necessary corporate action and do not and will not (i) require any
authorization, consent or approval by any governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, except as noted
in Schedule 4.2 to the Credit Agreement with respect to Borrowings made after
December 31, 2006, (ii) violate the Borrower’s articles of incorporation or
bylaws or any provision of any law, rule, regulation or order presently in
effect having applicability to the Borrower, or (iii) result in a breach of
or constitute a default under any indenture or agreement to which the Borrower
is a party or by which the Borrower is bound.
(c) All
of
the representations and warranties contained in Article IV of the Credit
Agreement, as amended hereby, are correct on and as of the date hereof as though
made on and as of such date.
5. Conditions.
The
amendments set forth in paragraph 2 shall be effective only if the Agent has
received (or waived the receipt of) each of the following, in form and substance
satisfactory to the Agent, on or before the date hereof (or such later date
as
the Agent may agree to in writing):
(a) This
Amendment, duly executed by the Borrower and each of the Lenders
below.
(b) The
Replacement Notes, duly executed by the Borrower.
(c) A
certificate of an officer of the Borrower (i) certifying that the
execution, delivery and performance of this Amendment, and the performance
of
the Credit Agreement as amended hereby, have been duly approved by all necessary
action of the board of directors of the Borrower, and attaching true and correct
copies of the applicable resolutions granting such approval,
(ii) certifying that there have been no amendments to or restatements of
the articles of incorporation or bylaws of the Borrower as furnished to the
Agent in connection with the execution and delivery of the Credit Agreement,
other than those that may be attached to the certificate, and
(iii) certifying the names of the officers of the Borrower that are
authorized to sign this Amendment, together with the true signatures of such
officers.
(d) A
signed
copy of the opinion of Xxxx X. Xxxxxxxx, general counsel for the Borrower,
addressed to the Agent and the Lenders, in substantially the form of Exhibit
B
hereto.
(e) All
fees
agreed to between the Agent and the Borrower with respect to this
Amendment.
6. Miscellaneous.
Except
as amended by this Amendment, all of the terms and conditions of the Credit
Agreement shall remain in full force and effect. This Amendment may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which counterparts of this
Amendment, taken together, shall constitute but one and the same instrument.
This Amendment shall be governed by the substantive law of the State of New
York.
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the day
and
year first above written.
|
MDU
RESOURCES GROUP, INC.
By
/s/
XXXXX X. XXXXXXXX
Its
Vice President and Chief Accounting
Officer
|
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and as
a Lender
By
/s/
XXXX X. XXXXXXXXXX
Its
Vice President
|
|
ABN AMRO
BANK N.V.
By
/s/
XXXX X. XXXXXXXXX
Its
Senior Vice President
By
/s/ XXXX XXXX
Its
Director
|
|
U.S.
BANK NATIONAL ASSOCIATION
By
/s/
XXXXXXXXX XXXX
Its
Assistant Vice President
|
|
UNION
BANK OF CALIFORNIA, N.A.
By
/s/
XXXXX READ
Its
Vice President
|
