Exhibit 10.20
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("Amendment") is made
effective as of January 31, 2001, among RDO FINANCIAL SERVICES CO., ("Borrower")
a North Dakota corporation whose address is 1500 Radisson Tower, 000 -0xx Xxxxxx
Xxxxx, Xxxxx, Xxxxx Xxxxxx 00000, XXXXX FARGO BANK NORTH DAKOTA, N.A., F/K/A
NORWEST BANK NORTH DAKOTA, NATIONAL ASSOCIATION ("Norwest") a national banking
association with offices located in Fargo, North Dakota and AG CAPITAL COMPANY,
a Delaware corporation whose address is 1500 Radisson Tower, 000 - 0xx Xxxxxx
Xxxxx, Xxxxx, Xxxxx Xxxxxx 00000, as a lender hereunder and as agent for all the
lenders hereunder (the "Agent"). (Norwest and Agent are sometimes hereinafter
individually referred to as a "Lender" and collectively referred to as
"Lenders".)
RECITALS
A. The Borrower and the Lenders entered into a Credit Agreement dated
as of June 1, 2000 ("Credit Agreement").
B. Pursuant to Section 6.6(b) of the Credit Agreement, upon thirty (30)
Business Days prior notice to the Borrower, Norwest has the right to
unilaterally amend the definition of Receivable Borrowing Base. (Capitalized
terms used herein shall have the respective meanings ascribed thereto in the
Agreement unless herein defined or the context shall otherwise require.)
C. Norwest has advised the Borrower that it desires to amend the
advance rates set forth in the Receivable Borrowing Base.
D. The Borrower has requested Norwest to refrain from modifying the
advance rates.
E. The Lenders are willing to forego modifying the advance rates, for
now, upon the terms and conditions set forth in this Amendment.
NOW, THEREFORE, upon the full and complete satisfaction of the
conditions precedent to the effectiveness of this Amendment set forth in Section
3 hereof, and in consideration of good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the Borrower and the Lenders do
hereby agree as follows:
SECTION 1. AMENDMENTS
1.1 Section 1.1 of the Credit Agreement shall be and is hereby amended
to add the following terms:
"Guarantor(s)" shall mean individually and collectively RDOE,
RDO Agriculture Equipment Co. and RDO Construction Equipment
Co.
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"Guaranties" means the absolute and unconditional guaranty of
the obligations of the Borrower owing the Lenders under this
Credit Agreement and the Receivable Notes by the Guarantors.
1.2 The definition of the term "Receivable Borrowing Base" set forth in
Section 1 of the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
"Receivable Borrowing Base" means at any time the lesser of
(a) $15,000,000 or (b) the sum of (i) ninety percent (90%) of
the Borrower's Eligible Retail Receivables; (ii) eighty-five
percent (85%) of the Borrower's Eligible Store Receivables;
(iii) seventy-five percent (75%) of the Borrower's Eligible
Foreign Receivables; and (iv) the lesser of (A) seventy-five
percent (75%) of the Borrower' Eligible Repossessed Inventory
or (B) the sum of $500,000.
1.3 The definition of the term "Receivable Commitment" set forth in
Section 1 of the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
"Receivable Commitment" means the maximum principal amount
each Lender is obligated to extend as part of the Advances
which in the case of Norwest shall be the amount of
$11,250,000 and in the case of the Agent shall be $3,750,000.
1.4 The definition of the term "Receivable Note(s)" set forth in
Section 1 of the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
"Receivable Note(s)" means, individually or collectively, the
Receivable Note(s), dated June 1, 2000, made by the Borrower
payable to the order of each of the Lenders, the aggregate
original principal amount of which is Fifteen Million Dollars
($15,000,000), and the individual original principal amount of
which is the Receivable Commitment of the applicable Lender,
together with all extensions, renewals, modifications,
substitutions and changes in form thereof effected by written
agreement between the Borrower and all of the Lenders.
1.5 The definition of the term "Security Agreement" set forth in
Section 1 of the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
"Security Agreement" means the Security Agreement, dated June
1, 2000, executed by the Borrower in favor of the Lenders, and
such other previously executed security agreements, as
originally executed and as may be amended, modified or
supplemented from time to time by written agreement between
the Borrower and the Lenders.
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1.6 The form of the "Receivable Notes" set forth in Section 1 of the
Credit Agreement are hereby amended and restated in their entirety to read as
set forth on Exhibit "A" attached hereto.
1.7 The form of Exhibit "B" to the Credit Agreement, the monthly
borrowing base certificate, is hereby amended and restated in its entirety to
read as set forth in Exhibit "B" attached hereto.
1.8 The form of Exhibit "C" to the Credit Agreement, the weekly
borrowing base certificate, is hereby amended and restated in its entirety to
read as set forth in Exhibit "C" attached hereto.
1.9 Section 6.1(c) of the Credit Agreement shall be and is hereby
amended and restated in its entirety to read as follows:
(c) As soon as available, but in any event within thirty
(30) days after the last day of each monthly fiscal
period (i) unaudited financial statements of the
Borrower and its Subsidiaries consisting of a balance
sheet and the related statements of income, retained
earnings and cash flows prepared on a consolidated
basis dated as of the last Business Day of such
monthly fiscal period in form and detail as
reasonably required by the Majority Lenders certified
by the chief financial officer of the Borrower to
have been prepared from the records of the Borrower
on the basis of accounting principles consistently
applied by the Borrower; (ii) a credit operations
report prepared by the Borrower that includes, but is
not limited to, portfolio delinquency trends and
analysis, repossessed assets and inventory,
delinquency roll-ups and charge back information;
(iii) a report detailing the top 50 Succe$$Link
preferred accounts and the top 100 Succe$$Link
balance forward accounts indicating the percentage as
a number of total accounts and the percentage of
total outstanding dollars; (iv) a report detailing
the top 50 Persons having more than one account with
the Borrower indicating the percentages or number of
total accounts and the percentage of total
outstanding dollars; (v)a report detailing the
Eligible Receivables and Eligible Foreign Receivables
originated by RDO Agriculture Equipment Co. and RDO
Construction Equipment Co.; and (vi) a portfolio
delinquency report to include a separate schedule of
the categories of notes, loans, leases and
receivables pledged to the Lenders which report shall
include, but not be limited to, a breakdown of 30, 60
and 90 day delinquencies.
1.10 Section 6.1(h) of the Credit Agreement shall be and is hereby
amended and restated in its entirety to read as follows:
(h) Such other information concerning the business,
operations and condition (financial or otherwise) of
the Borrower or any of the Guarantors as any Lender
may reasonably request.
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1.11 Section 6.1 of the Credit Agreement shall be and is hereby amended
to add the following additional subparagraph (i) which shall provide as follows:
(i) As soon as available, but in any event within
forty-five (45) days after the last day of each
fiscal quarter of the Guarantors, unaudited financial
statements of the Guarantors consisting of a balance
sheet and the related statements of income, retained
earnings and cash flows prepared on a consolidated
basis dated as of the last Business Day of such
fiscal quarter in form and detail as reasonably
required by the Majority Lenders certified by the
chief financial officer of each Guarantor to have
been prepared from the records of each Guarantor on
the basis of accounting principles consistently
applied by such Guarantor.
1.12 Section 8.1 of the Credit Agreement shall be and is hereby amended
and restated in its entirety to read as follows:
8.1. Events of Default. The term "Event of Default" shall mean any of
the following events:
(a) The Borrower shall default in the payment when due, or if
payable on demand, upon demand, of any principal or interest
on any of the Subject Notes; or
(b) The Borrower shall default (other than a default in payment
under subsection (a) above) in the due performance and
observance of any of the covenants contained in any of the
Loan Documents and such default (other than a default of the
covenants in Section 7.8 or 7.9, as to which no notice or
additional time shall be required to constitute an Event of
Default) shall continue unremedied for a period of thirty (30)
days after notice from the Majority Lenders to the Borrower
thereof; or
(c) An event has occurred which would, at such time or with the
passage of time, constitute an "event of default" (however
legally styled) under any other loan obligation, lease, bond,
debenture, security agreement, note, or instrument or
agreement of the Borrower or any Guarantor evidencing Debt and
any applicable grace period specified in such agreement or
evidence of Debt has expired; or
(d) The Borrower or any Guarantor shall become insolvent or
generally fail to pay or admit in writing its inability to pay
its debts as they become due; or the Borrower or any Guarantor
shall apply for, consent to, or acquiesce in the appointment
of a trustee, receiver or other custodian for itself or any of
its property, or make a general assignment for the benefit of
its creditors; or a trustee, receiver or other custodian shall
otherwise be appointed for the Borrower or any Guarantor or
any of its assets; or any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any bankruptcy
or insolvency law, or any dissolution or liquidation
proceeding shall be commenced by or against the Borrower or
any Guarantor; or the Borrower or any Guarantor shall take any
action to authorize, or in furtherance of, any of the
foregoing; or
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(e) Any representation or warranty set forth in this Credit
Agreement or any other Loan Document shall be untrue in any
material respect on the date as of which the facts set forth
are stated or certified; or
(f) The occurrence of any Material Adverse Occurrence; or
(g) A Reportable Event (as defined under ERISA) shall have
occurred; or
(h) The rendering against the Borrower or any Guarantor of a final
judgment, decree or order for the payment of money in excess
of $500,000 (unless the payment of such judgment in the amount
of such excess is insured), and the continuance of such
judgment, decree or order unsatisfied for any 30 consecutive
day period without a stay of execution; or
(i) The occurrence of a Change of Control; or
(j) The Majority Lenders shall in good xxxxx xxxx themselves
insecure; or
(k) If the Guaranty of any Guarantor shall, at any time after its
execution and delivery and for any reason, cease to be in full
force and effect or shall be declared null and void, with the
validity or enforceability thereof shall be contested by any
Person, or any Guarantor shall deny any further liability
under its Guaranty or shall fail to perform its obligations
under its Guaranty or revoke its Guaranty; or
(l) In the event any Guarantor shall cease to be a validly
existing corporation in good standing under the laws of the
state of its incorporation or shall otherwise dissolve or
cease to exist.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE BORROWER
2.1 To induce the Lenders to execute and deliver this Amendment (which
representations shall survive the execution and delivery of this Amendment), the
Borrower represents and warrants to the Lenders that:
(a) this Amendment, and the documents to be executed in connection
with this Amendment, have been duly authorized, executed and
delivered and constitute the legal, valid and binding
obligations, contracts and agreements of the Borrower
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors' rights
generally;
(b) the Credit Agreement, as amended by this Amendment,
constitutes the legal, valid and binding obligation, contract
and agreement of the Borrower enforceable against it in
accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws or equitable principles relating to or
limiting creditors' rights generally;
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(c) the execution, delivery and performance by the Borrower of
this Amendment, (i) has been duly authorized by all requisite
corporate action of the Borrower and, if required, shareholder
action, (ii) does not require the consent or approval of any
governmental or regulatory body or agency, and (iii) will not
(A) violate (1) any provision of law, statute, rule or the
Borrower's articles of incorporation or bylaws, (2) any order
of any court or any rule, regulation or order of any other
agency or government binding upon it, or (3) any provision of
any material indenture, agreement or other instrument to which
it is a party or by which its properties or assets are or may
be bound, or (B) result in a breach of or constitute (alone or
with due notice or lapse of time or both) a default under any
indenture, agreement or other instrument referred to in clause
(iii)(A)(3) of this Section 2.1(c);
(d) as of the date hereof and after giving effect to this
Amendment, no Event of Default has occurred which is
continuing; and
(e) all the representations and warranties contained in Article 5
of the Credit Agreement are true and correct in all material
respects with the same force and effect as if made by the
Borrower on and as of the date hereof.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT
3.1 This Amendment shall not become effective until, and shall become
effective when, each and every one of the following conditions shall have been
satisfied on terms and conditions satisfactory to the Lenders in their
discretion:
(a) receipt by the Lenders of the Guaranties of the Guarantors;
(b) replacement Receivable Notes dated as of June 1, 2000, duly
executed by the Borrower shall have been delivered to the
Lenders;
(c) a certified copy of the resolutions of the Borrower
authorizing the execution, delivery and performance of this
Amendment, the replacement Receivable Notes and other matters
contemplated hereby;
(d) a certified copy of the resolutions of each Guarantor
authorizing the execution, delivery and performance of each
Guarantor's respective Guaranty;
(e) the representations and warranties of the Borrower set forth
in Section 2 hereof are true and correct on and with respect
to the date hereof; and
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(f) any and all other agreements, documents, instruments and
powers as the Lenders may require or deem necessary to carry
into effect the purposes of the documents described in this
Section 3 and this Amendment.
SECTION 4. MISCELLANEOUS
4.1 This Amendment shall be construed in connection with and as part of
the Credit Agreement, and except as modified and expressly amended by this
Amendment, all terms, conditions and covenants contained in the Credit Agreement
are hereby ratified and shall be and remain in full force and effect. The
Borrower warrants and represents that the Credit Agreement and the Loan
Documents, as amended herein, are legally valid and binding obligations of the
Borrower subject to no defenses, set-offs or counterclaims and are in full force
and effect. By entering into this Amendment, the Lenders do not waive any right,
power or remedy to which they are entitled as the result of any Event of Default
which may exist.
4.2 Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this Amendment may
refer to the Credit Agreement without making specific reference to this
Amendment but nevertheless all such references shall include this Amendment
unless the context otherwise requires.
4.3 The descriptive headings of the various Sections or parts of this
Amendment are for convenience only and shall not affect the meaning on
construction of any of the provisions hereof.
4.4 This Amendment constitutes the entire agreement between the parties
and shall not in any way be modified, varied or amended unless in writing signed
the parties. This Amendment shall control with respect to any of its provisions
that conflict or are inconsistent with the Loan Documents and Guaranties and any
other such documents, but to the extent not conflicting or inconsistent, the
Loan Documents and Guaranties and any other such documents executed in
connection with the transaction contemplated by this Amendment and the Credit
Agreement shall be in full force and effect.
4.5 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, when taken together, shall constitute but one and the
same instrument. Facsimile signatures of this Amendment shall be treated as
originals until such time as the original signatures can be obtained.
4.6 The Borrower agrees to do such further acts and things and execute
and deliver, or cause to be executed and delivered, such agreements, powers and
instruments as the Lenders may reasonably require or deem necessary to carry
into effect the purposes of this Amendment.
4.7. This Amendment shall be governed by and construed in accordance
with the laws of the State of North Dakota.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
RDO FINANCIAL SERVICES CO.,
a North Dakota corporation
By: /s/ Xxxxxx X. Xxxxx
---------------------
Xxxxxx K, Espel
Its Assistant Secretary/Treasurer
AG CAPITAL COMPANY,
a Delaware corporation
Receivable Commitment = $3,750,000 By: /s/ Xxxx X. Xxxxx
---------------------
Xxxx X. Xxxxx
Its Loan Officer
XXXXX FARGO BANK NORTH DAKOTA,
N.A., F/K/A NORWEST BANK NORTH
DAKOTA, N.A., a national banking
association
Receivable Commitment = $11,250,000 By: /s/ Xxxxx X. Xxxxxxx
----------------------
Xxxxx X. Xxxxxxx
Its Vice President
ACKNOWLEDGED AND AGREED TO as of January 31, 2001.
RDO EQUIPMENT COMPANY
By /s/ Xxxxxx X. Xxxxx
---------------------
Xxxxxx X. Xxxxx
Its Assistant Secretary/Treasurer
RDO AGRICULTURE EQUIPMENT CO.
By /s/ Xxxxxx X. Xxxxx
---------------------
Xxxxxx X. Xxxxx
Its Assistant Secretary/Treasurer
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[Signatures continued] RDO CONSTRUCTION EQUIPMENT CO.
By /s/ Xxxxxx X. Xxxxx
---------------------
Xxxxxx X. Xxxxx
Its Assistant Secretary/Treasurer
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