EXHIBIT 10.27
FIRST ADDENDUM TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
This First Addendum to Third Amended and Restated Loan Agreement (the "First
Addendum") is entered into as of the ___ day of January, 2003, by and between
Xxxx Deere Construction & Forestry Company ("JDCFC"), Deere Credit, Inc. ("Deere
Credit"), and Xxxx Deere Company, a division of Deere & Company ("Deere &
Company") (JDCFC, Deere Credit and Deere & Company are hereinafter collectively
referred to as the "Lender") and RDO Agriculture Equipment Co. ("RDO
Agriculture"), RDO Construction Equipment Co. ("RDO Construction"), RDO
Financial Services Co. ("RDO Financial Services"), and RDO Material Handling Co.
("RDO Material Handling") (RDO Agriculture, RDO Construction, RDO Financial
Services and RDO Material Handling are hereinafter collectively referred to as
the "Borrower").
RECITALS
WHEREAS, Lender and Borrower entered into that certain Third Amended and
Restated Loan Agreement dated as of December 16, 2002 (the "Loan Agreement");
and
WHEREAS, Lender and Borrower wish to amend the Loan Agreement to further clarify
certain provisions in the Loan Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained in this First
Addendum, and other good and valuable consideration, the receipt and sufficiency
of which is expressly acknowledged, the parties hereto agree as follows:
1. Capitalized terms not defined in this First Addendum shall have the
meaning provided to them in the Loan Agreement.
2. All references to the term "Credit Line Certificate" are hereby amended
to read "Borrowing Base and Credit Line Certificate".
3. All references to the term "Eligible Receivables" are hereby amended to
read "Eligible Trade Receivables".
4. The definition of "Eligible Affiliate Receivables" is hereby amended to
read in its entirety as follows:
"Eligible Affiliate Receivables" shall mean receivables arising from the
bona fide sale or lease of Eligible Inventory to Affiliates in an amount
equal to the lesser of (i) seventy percent (70%) of the total amount of
Eligible Affiliate Receivables, or (ii) Two Million Dollars ($2,000,000).
5. The definition of "Eligible Government Receivables" is hereby amended to
read in its entirety as follows:
"Eligible Government Receivables" shall mean receivables arising from the
bona fide sale or lease of Eligible Inventory with acceptable account
debtors who are either municipal, county or state government entities with
accounts that are less than ninety days old, other than unpaid settlements
(commonly known as Code 3 shortages) in an amount equal to the lesser of
(i) seventy percent (70%) of the total amount of Eligible Government
Receivables, or (ii) Five Million Dollars ($5,000,000).
FIRST ADDENDUM TO
THIRD AMENDED AND RESTATED LOAN AGREEMENT
6. The definition of "Eligible Material Handling Inventory" is hereby
amended to read in its entirety as follows:
"Eligible Material Handling Inventory" means machinery and equipment held
for sale by the RDO Material Handling under valid manufacturer's dealer
licenses in an amount equal to the lesser of (i) ninety five percent (95%)
of Eligible Material Handling Inventory, or (ii) Two Million Dollars
($2,000,000).
7. The first paragraph in Section 2 of the Loan Agreement entitled
"Advances; Letter of Credit Advances" is hereby amended to read in its entirety
as follows:
Assuming no Event of Default has occurred and is continuing, Lender shall,
until the Termination Date, make Advances to Borrower, up to an amount
which when combined with all other outstanding Advances does not exceed the
Maximum Borrowing Amount. Each Advance made under this Line of Credit shall
be for an amount that shall not be less than One Hundred Thousand Dollars
($100,000).
Requests for Advances (each, an "Advance Request") may be made to Lender by
means of a document substantially in the form attached hereto as Exhibit
B-1. In order to eliminate paperwork and facilitate the efficient
processing of Advance Requests, Borrower and Lender further acknowledge and
agree that: (a) Any communication intended to initiate an Advance Request,
whether in writing, by telephone, by electronic data interchange ("EDI"),
online services, electronic mail, the Internet, or by any other means,
shall be treated as a request to Lender to advance the requested amount to
Borrower; (b) Any Advance Request may be prepared, signed and/or stored in
electronic form acceptable to Lender or converted by Lender from paper form
to accurate electronic images for storage or reproduction, and such
electronic documents shall be the controlling copy of that document for all
legal purposes; (c) Borrower shall not object to the validity,
admissibility or enforceability of documents because they were prepared,
signed, stored or reproduced by electronic means; (d) Borrower may, from
time to time, submit Advance Requests by sending an e-mail message to
Lender at the following e-mail address: xxxxxxx00000x@XxxxXxxxx.xxx (the
"E-Mail Address"); (e) Lender may rely upon any Advance Request received at
the E-Mail Address and any such Advance Request received by Lender shall be
binding on Borrower; and (f) Lender will accept Advance Requests, at the
E-Mail Address, from those employees of Borrower that (a) are listed on the
authorized signature form on file with Lender, and (b) have a unique e-mail
address, separate from the general e-mail address of Borrower.
8. Except as expressly amended by this First Addendum, the terms and
conditions of the Loan Agreement remain in full force and effect. This First
Addendum constitutes the complete understanding of the parties hereto and
supersedes all prior understandings of the parties relating to the matters
discussed herein. This First Addendum may only be amended or modified by the
terms of a written instrument signed by all parties hereto. This First Addendum
shall be governed by and construed in accordance with the laws of the State of
Iowa.
IN WITNESS WHEREOF, the parties hereto have executed this First Addendum
effective as of the date first above written.
2
LENDER: BORROWER:
XXXX DEERE CONSTRUCTION RDO AGRICULTURE EQUIPMENT CO.
& FORESTRY COMPANY
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------- ------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
--------------------------- ------------------------------
Title: Div. Fin. Mgr. Title: Treasurer
--------------------------- ------------------------------
XXXX DEERE COMPANY, A DIVISION OF RDO CONSTRUCTION EQUIPMENT CO.
DEERE & COMPANY
By: /s/ J.R. Spear By: /s/ Xxxxxx X. Xxxxx
--------------------------- ------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
--------------------------- ------------------------------
Title: Mgr. Ag Fin Title: Treasurer
--------------------------- ------------------------------
DEERE CREDIT, INC. RDO FINANCIAL SERVICES CO.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------- ------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
--------------------------- ------------------------------
Title: Div. Fin. Mgr. Title: Treasurer
--------------------------- ------------------------------
RDO MATERIAL HANDLING CO.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
------------------------------
Title: Treasurer
------------------------------
3
