Exhibit 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT ("Amendment") is made
effective as of July 1, 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 which was amended by way of a First Amendment to Credit
Agreement dated as of January 31, 2001 (hereinafter collectively referred to as
the "Credit Agreement").
B. The Subject Notes subject to the Credit Agreement matured, by their
terms and conditions, on June 30, 2001. (Capitalized terms used herein shall
have the respective meanings ascribed thereto in the Credit Agreement unless
herein defined or to the context shall otherwise require.)
C. The Borrower has requested the Lenders to extend the maturity date
of the Subject Notes to July 31, 2001. The Lenders are willing to extend the
maturity date of the Subject Notes 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 The definition of "Maturity" set forth in Section 1 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
"Maturity" of the Subject Notes means the earlier of
(a) the date on which the Subject Notes become due
and payable upon the occurrence of an Event of
Default; or (b) July 31, 2001 unless extended in
writing by all of the parties hereto in their sole
discretion.
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1.2 The Subject Notes are, by way of this Amendment, modified such that
the maturity date of the Subject Notes is July 31, 2001.
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;
(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.
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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 Norwest of an extension fee in the amount
of $4,500;
(b) receipt by the Agent of an extension fee in the
amount of $7,500;
(c) a certified copy of the resolutions of the Borrower
authorizing the execution, delivery and performance
of this Amendment;
(d) 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
(e) 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
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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.
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 X. Xxxxx
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
[Signatures continued]
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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 July 1, 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
RDO CONSTRUCTION EQUIPMENT CO.
By /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Its Assistant Secretary/Treasurer
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