EXHIBIT 10.1
AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT is entered into as of January 31, 1998 by and between
Spectrum Bancorporation, Inc., a Delaware corporation (the "Borrower"), and
First Bank National Association (the "Bank"). In consideration of the mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties, the
Borrower and the Bank agree as follows:
1. Upon the execution of this Amendment:
a. The Bank shall lend the Borrower the sum of $1,805,000.00 (the
"New Loan"); and
b. The Borrower shall use all proceeds of the New Loan solely to
acquire all of the shares of stock of First Savings & Loan Association of South
Dakota, Inc. (the "Association") that are not already owned by the Borrower,
such acquisition to be made through a reverse subsidiary merger of Transitory
Subsidiary, Inc. into the Association pursuant to an Agreement and Plan of
Merger dated as of November 19, 1997; and
c. The Borrower shall cause the Association to be merged into F&M
Bank, Watertown, South Dakota ("F&M Bank") pursuant to an Agreement and Plan of
Merger dated as of November 24, 1997; and
d. The Borrower shall pledge and deliver to the Bank all of the
certificates for all shares of stock of F&M Bank thereby acquired by the
Borrower and executed stock powers for such certificates, all in form and
substance acceptable to the Bank, pursuant to the Borrower's Pledge Agreement
dated October 17, 1997 in favor of the Bank; and
e. The Borrower shall deliver to the Bank the executed Amended and
Restated Term Note (as defined herein), and the executed Consent and Agreement
of Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, as Trustee, Rushmore Financial Services,
Inc., Spectrum Financial Services, Inc., Xxxxxx X. Xxxxxx, Xxxxxx Xxxxxx, and
Xxxxx X. Xxxxxxxxx, all in form and substance acceptable to the Bank; and
f. The Borrower shall pay the Bank a loan fee of $4,500.00 for the
New Loan; and
g. The Borrower shall deliver to the Bank an executed legal opinion
in form and substance acceptable to the Bank.
2. The Bank consents to such acquisition and mergers, provided that the
Borrower takes all actions required by Section 1.
3. The Borrower's obligation to repay the New Loan and to pay interest
and other charges, fees and expenses thereon, and to pay the unpaid balance of
the Borrower's $650,000.00 Term Note dated October 17, 1997 in favor of the
Bank, as amended, is evidenced by the Borrower's $2,455,000.00 Amended and
Restated Term Note dated the date hereof in favor of the Bank (the "Amended and
Restated Term Note"), which supersedes and replaces such amended Term Note. The
Amended and Restated Term Note is guaranteed by the Guaranty of Xxxxx X. Xxxxxx,
and is secured by the Pledge Agreement of the Borrower, the Third Party Pledge
Agreement of Xxxxx X. Xxxxxx, the Third Party Pledge Agreement of Xxxxx X.
Xxxxxx, Trustee of the Xxx Xxxx Trusts for the Children of Xxxxx X. Xxxxxx, the
Third Party Pledge Agreement of Rushmore Financial Services, Inc., and the Third
Party Pledge Agreement of Spectrum Financial Services, Inc., all dated
October 17, 1997 in favor of the Bank, and by assignments of life insurance
previously executed by Xxxxxx X. Xxxxxx, Xxxxxx Xxxxxx and Xxxxx X. Xxxxxxxxx in
favor of the Bank.
4. The Borrower represents and warrants to the Bank that:
a. All required regulatory approvals of the New Loan and such
pledge, consent and agreement, acquisition, and mergers have been obtained, and
the Borrower, the Association, F&M Bank and Transitory Subsidiary, Inc. have all
requisite power and authority to enter into such transactions; and
b. This Amendment, the Amended and Restated Term Note, such stock
powers, and such consent and agreement (collectively called the "Amendment
Documents"), when executed and delivered, will constitute the legal, valid and
binding obligations of the parties executing the same (other than the Bank),
subject to bankruptcy, insolvency and similar laws, statutes of limitation and
principles of equity;
c. All of the Borrower's representations and warranties to the
Bank stated in Section 3 of the Credit Agreement (as defined herein), as amended
herein, are true as of the date of this Amendment.
5. The Credit Agreement dated October 17, 1997 between the Borrower and
the Bank (the "Credit Agreement") is amended as follows:
a. The reference to $650,000.00 is changed to $2,455,000.00 in the
first paragraph of the Credit Agreement.
b. Section 1.1 of the Credit Agreement is amended to read as
follows:
1.1 TERM NOTE. The Borrower's $2,455,000.00 Amended and Restated
Term Note dated January 31, 1998 in favor of First Bank (together with any
extensions, renewals, substitutions, modifications and changes thereof, the
"Term Note") appropriately completed and duly
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executed by the Borrower.
c. Section 1.9 of the Credit Agreement is amended to read as
follows:
1.9 LOAN FEE. A loan fee in the amount of $6,125.00.
d. The last sentence in Section 3.1 of the Credit Agreement is
amended to read as follows:
F&M Bank is a state bank duly organized and chartered and validly
existing and in good standing under the laws of the State of South
Dakota.
e. All references to the Association are changed to F&M Bank in
Sections 3.3, 3.4, 3.5, 3.6, 3.8, 4.1(b), 4.1(c), 4.2, 4.3, 4.4, 4.5, 4.6, 4.7,
5, 5.2, 5.3, 5.5, 6.1(f), 6.1(g), and 7.7 of the Credit Agreement.
f. Section 6.1(h) of the Credit Agreement is amended to read as
follows:
(h) STOCK OWNERSHIP. The Borrower shall at any time own less
than 97% of the issued and outstanding shares of any class of stock of
F&M Bank.
6. Except as amended herein or herewith, all provisions of the Credit
Agreement and all acknowledgments of the parties remain in fill force and
effect. No provision of this Amendment can be amended, modified, waived or
terminated, except by a writing executed by the Borrower and the Bank. The
Borrower shall pay to the Bank on demand all of the Banks costs and expenses,
including but not limited to reasonable attorneys' fees and legal expenses, in
connection with this Amendment, the writings executed herewith, and the
transactions described herein and therein. This Amendment shall bind and
benefit the parties and their respective successors and assigns; provided, the
Borrower shall not assign any of its rights or obligations under the Credit
Agreement or this Amendment without the prior written consent of the Bank, and
any assignment in violation of this sentence shall be null and void. This
Amendment shall be governed by and construed in accordance with the internal
laws of the State of Minnesota (excluding conflict of law rules).
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Executed as of the date first above written.
SPECTRUM BANCORPORATION, INC.
By ______________________________
Title ___________________________
FIRST BANK NATIONAL ASSOCIATION
By ______________________________
Title ___________________________
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