LOAN AGREEMENT

 

Borrower, and receivables and other amounts due from any other related or affiliated Person of the Borrower.

 

“Current Liabilities” shall mean the aggregate amount of the Borrower’s liabilities properly shown as current liabilities on its balance sheet, determined in accordance with GAAP.

 

“Debt” shall mean the aggregate amount of the Borrower’s items properly shown as liabilities on its balance sheet, determined in accordance with GAAP, less any liabilities that constitute Subordinated Debt.

 

“Eligible Equipment” means the dollar value of all equipment (including vehicles) of the Borrower accounted for at the lower of net book value as determined in accordance with GAAP or the appraised value of such equipment as determined by Steffes Auction Company or such other auction company selected by the Bank pursuant to an appraisal on terms and conditions satisfactory to the Bank.  Without limiting the discretion of the Bank to consider any item of equipment not to be Eligible Equipment, and by way of example only of types of equipment that the Bank will consider not to be Eligible Equipment, notwithstanding any earlier classification of eligibility, the following shall not be considered Eligible Equipment (i) any equipment which is not located on the Premises of the Borrower; (ii) any equipment which is obsolete or not useable in the normal course of the Borrower’s operations; and (iii) any equipment in which the Bank does not have a perfected security interest constituting a first lien.

 

“Eligible Equipment Inventory” means the dollar value of New Equipment Inventory and Used Equipment Inventory of the Borrower in which the Bank holds a first perfected security interest accounted for at the lower of cost or fair market value computed on a first-in-first-out basis in accordance with GAAP, which New Equipment Inventory and Used Equipment Inventory has been paid for by the Borrower in full and provided, further, that Eligible Equipment Inventory, shall not, in any event, include:

 

(a)                                   inventory which is (i) in-transit; or (ii) not located on the Borrower’s Premises or in another location approved by the Bank in writing; or (iii) not subject to an effective financing statement filed by the Bank to perfect a first security interest in such inventory; or (iv) on consignment to or from any other Person or subject to any bailment; or (v) subject to any lien in favor of any Person other than the Bank;

 

(b)                                  raw materials and work in process;

 

(c)                                   supplies, packaging and parts inventory;

 

(d)                                  inventory that is damaged, obsolete or not currently saleable in the normal course of the Borrower’s operations;

 

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(e)                                   inventory that the Borrower has returned, has attempted to return, is in the process of returning or intends to return to the vendor thereof; and

 

(f)                                     inventory otherwise deemed ineligible by the Bank in its sole discretion.

 

“Eligible Parts Inventory” means the dollar value of the parts inventory of the Borrower in which the Bank holds a perfected first security interest accounted for at the lower of cost or fair market value computed on a first-in-first–out basis in accordance with GAAP.  Without limiting the discretion of the Bank to consider any parts not to be Eligible Parts Inventory, and by way of example only, Eligible Parts Inventory shall not, in any event, include:

 

(a)                                   parts inventory which are (i) in-transit; or (ii) not located on the Borrower’s Premises or in another location approved by the Bank in writing; or (iii) not subject to an effective financing statement filed by the Bank to perfect a security interest in such inventory; or (iv) on consignment to or from any other Person or subject to any bailment.

 

(b)                                  parts inventory that is damaged, obsolete or not currently saleable in the normal course of the Borrower’s operations;

 

(c)                                   parts inventory that the Borrower has returned, has attempted to return, is in the process of returning or intends to return to the vendor thereof; and

 

(d)                                  parts inventory otherwise deemed ineligible by the Bank in its sole discretion.

 

“Eligible Receivables”  means only such accounts receivable of the Borrower as the Bank, in its sole discretion, shall deem eligible.  Without limiting the discretion of the Bank to consider any account receivable not to be an Eligible Receivable, and by way of example only of types of accounts receivable that the Bank will consider not to be Eligible Receivables, notwithstanding any earlier classification of eligibility, the following accounts receivable shall not be considered Eligible Receivables: (i) any account receivable which is not paid in full within 90 days after it is created; (ii) any account receivable as to which any warranty is breached; (iii) any account receivable as to which the account debtor or other obligor disputes liability or makes any claim; (iv) any account receivable owed by any officer, director or shareholder of the Borrower or any of their relatives or any Person wholly or partly owned or controlled directly or indirectly by any of them or any of their relatives; (v) any account receivable owed by any Person as to whom a petition in bankruptcy or other application for relief is filed under any bankruptcy, reorganization, receivership, moratorium, insolvency or similar law; (vi) any account receivable owed by any Person who makes an assignment for the benefit of creditors, becomes insolvent, fails, suspends business, or goes out of business; (vii) any account receivable owed by the United States government or any agency of the United States government or any account owned by a Native American Sovereign Nation; (viii) any account receivable owed by any Person if 10% or more in amount of accounts receivable owed by such Person to the Borrower are considered ineligible; (ix) consignment receivables; (x) bonded

 

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receivables; (xi) any account receivable constituting a retainage; (xii) any account receivable for goods which have not been shipped or work which has not been fully performed; (xiii) any account receivable owed by any Person outside the United States of America; (xiv) any account receivable owed by any Person with whose creditworthiness the Bank becomes dissatisfied; (xv) any intercompany account receivable; and (xvi) any account receivable in which the Bank does not have a perfected security interest constituting a first lien.

 

In the event the Borrower owes any amount to any Person that owes an account receivable to the Borrower, such amount owed by the Borrower shall be deducted from that portion of the account receivable which would otherwise qualify as an Eligible Receivable and only the difference thereof shall be considered an Eligible Receivable.  No account receivable which does not qualify as an Eligible Receivable shall be considered an Eligible Receivable unless the Bank, upon the written request of the Borrower, states in writing that such account receivable is to be considered an Eligible Receivable.

 

“Environmental Laws” means all federal, state, local and foreign laws, statutes, codes, ordinances, regulations, requirements, rules and common law relating in any way to any hazardous or toxic materials or the protection of the environment.

 

“Event of Default” has the meaning specified in Section 7.1.

 

“GAAP” means the generally accepted accounting principles in the United States in effect from time to time including, but not limited to, Financial Accounting Standards Board (FASB) Standards and Interpretations, Accounting Principals Board (APB) Opinions and Interpretations, and certain other accounting principles which have substantial authoritative support.

 

“Letter of Credit” means any one or more irrevocable letters of credit which may be issued by the Bank for the account of the Borrower.  (Nothing in this Agreement shall be construed as a commitment by the Bank to issue any letters of credit for the account of the Borrower.)

 

“Letter of Credit Amount” means the sum of (i) the aggregate amount available for drawing under any issued and outstanding Letter of Credit, and (ii) amounts drawn under any Letter of Credit for which the Bank has not been reimbursed.

 

“L/C Application” means an application and agreement for letters of credit in the Bank’s then current standard form.

 

“Net Worth” shall mean the aggregate amount of the Borrower’s items properly shown as assets on its balance sheet minus the aggregate amount of the Borrower’s items properly shown as liabilities on its balance sheet, determined in accordance with GAAP, plus Subordinated Debt.

 

“New Equipment Inventory” means new whole goods inventory held for sale by the Borrower in the ordinary course of the Borrower’s business which new equipment inventory (i) is ready for sale

 

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to customers of the Borrower; (ii) meets all standards imposed by any governmental agency; (iii) is located on the Premises of the Borrower; (iv) is not obsolete; (v) is not on consignment to or from any other Person or been sold or otherwise delivered, transferred or conveyed to any other Person or is subject to any bailment or lease; (vi) is subject to a perfected security interest constituting a first lien in favor of the Bank; (vii) does not have more than fifty (50) hours of use; and (viii) is not Used Equipment Inventory.

 

“Note” means the promissory note described in Section 2.1, together with any subsequent renewals, modifications, extensions and substitutions thereof.

 

“Obligations” means each and every debt, liability and obligation of every type and description which the Borrower may now or at any time hereafter owe to the Bank including, without limitation, the indebtedness arising under this Agreement, the Note and the L/C Applications.

 

“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, cooperative or other business entity, unincorporated organization, or government or any agency or political subdivision thereof.

 

“Premises” means the equipment dealerships operated by the Borrower in Lisbon, Lidgerwood, Kulm, Wishek, Jamestown, LaMoure, Wahpeton, Casselton, Bismarck, West Fargo, Mandan, Grand Forks and Fargo, North Dakota; Watertown, Aberdeen, Sioux Falls, Rapid City, Huron and Redfield, South Dakota; Pipestone, Graceville, Marshall, Fergus Falls, Elbow Lake, Roseau, Crookston, Ada and Moorhead, Minnesota; Waverly, Kingsley, Le Mars, Cherokee, Anthon, Dike, Des Moines, Blairstown, Cedar Rapids, Grundy Center, Davenport, Avoca, Greenfield, Clear Lake and Sioux City, Iowa; and Omaha and Lincoln, Nebraska.

 

“Subordinated Debt” shall mean Debt that is expressly subordinated to the Bank in a writing acceptable to the Bank.

 

“Tangible Net Worth” shall mean Net Worth minus the aggregate amount of the Borrower’s items properly shown as the following types of assets on its balance sheet determined in accordance with GAAP; (i) goodwill, patents, non-competes, copyrights, mailing lists, trade names, trademarks, servicing rights, organizational and franchise costs, bond underwriting costs, and other like assets properly classified as intangible; (ii) leasehold improvements; (iii) receivables, loans and other amount due from any shareholder, director, officer or employee of the Borrower, and receivables, loans and other amounts due from any other related or affiliated Person of the Borrower; and (iv) investments or other interests in non-public companies, cooperatives, entities or partnerships.

 

“Total Loan Value” means (i) seventy-five percent (75%) of the Borrower’s Eligible Receivables; plus (ii) fifty percent (50%) of the Borrower’s Eligible Equipment less an amount equal to the unpaid balance of any obligations owing any Person supplying or financing the purchase of or having a lien or security interest in any equipment, other than the Bank; plus (iii) fifty percent (50%) of the Borrower’s Eligible Equipment Inventory less an amount equal to the unpaid balance

 

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of any obligations owing the person supplying or financing the purchase of any equipment inventory or having a lien or security interest in any equipment inventory, other than the Bank; plus (iv) the Borrower’s Eligible Parts Inventory less an amount equal to the unpaid balance of any obligations owing any Person supplying or financing the purchase of any parts inventory or having a lien or security interest in any parts inventory, other than the Bank, all multiplied by fifty percent (50%); less (v) the Letter of Credit Amount all as determined by the Borrower in accordance with GAAP, consistently applied and as reflected by and determined in accordance with the Borrowing Base Certificate.

 

“Used Equipment Inventory” means all used whole goods inventory held for sale or rent by the Borrower in the ordinary course of the Borrower’s business which used equipment inventory (i) is ready for sale to customers of the Borrower; (ii) meets all standards imposed by any governmental agency; (iii) is located on the Premises of the Borrower; (iv) is not obsolete; (v) is not on consignment to or from any other Person or been sold or otherwise delivered, transferred or conveyed to any other Person or is subject to any bailment or lease; (vi) is subject to a perfected security interest constituting a first lien in favor of the Bank; and (vii) is not New Equipment Inventory.

 

ARTICLE II - AMOUNT AND TERMS OF LOANS

 

Section 2.1  Revolving Loan .  Subject to the terms and conditions of this Agreement, the Bank may, in its discretion, make Advances to the Borrower under this Section from time to time from the date hereof in the aggregate amount not to exceed at any one time outstanding the sum of Twenty-five Million Dollars ($25,000,000).  Within the limits set forth in this Section, the Borrower may borrow, prepay and re-borrow under this Section.  The obligation to repay the Advances made pursuant to this Section shall be evidenced by a promissory note payable to the Bank and containing the terms relating to the repayment, interest rate and other matters as set forth in Schedule 2.1 attached to and made a part of this Agreement (“Note”).

 

Section 2.1.1 Purpose of Advances .  The purpose for the first Advance under Section 2.1 is to replace, but not satisfy, an existing obligation of the Borrower to the Bank dated August 7, 2007, in the original principal amount of $12,000,000.  Subsequent Advances under Section 2.1 shall be used solely for the short term working capital requirements of the Borrower.

 

Section 2.1.2  Making Advances .  Each Advance under the Note shall be made on written, oral, electronic or telephonic request from any Person purporting to be authorized to request Advances on behalf of the Borrower or in such other manner as the Bank and the Borrower may from time to time agree; which notice or request shall specify the date of the requested Advance and the amount thereof.  Upon the Borrower’s fulfillment of the applicable conditions set forth in Article III, the Bank may disburse the amount of the requested Advance by crediting the same to the Borrower’s demand deposit account maintained with the Bank or in such other manner as the Bank and the Borrower may from

 

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time to time agree.  Any request for an Advance, whether written, oral, electronic or telephonic, shall be deemed to be a representation that the statements set forth in Section 3.2 are correct.  Any Advance request pursuant to Section 2.1 shall be made at least one bank business day prior to the date of the desired Advance and shall be made by Kevin Harrison or David J. Meyer or Ted Christianson or Peter Christianson on behalf of the Borrower.  Notwithstanding the immediately foregoing sentence, in the absence of bad faith on the part of the Bank, the Borrower shall be obligated to repay all Advances notwithstanding the fact that the Person requesting the same was not in fact authorized to do so.

 

Section 2.1.3  Discretionary Advances .  The Borrower understands and agrees that notwithstanding that conditions to Advances and various covenants and Events of Default are set forth herein as would be common to a loan agreement in which the lender made a commitment to lend, the Bank may, in its sole discretion and for any reason whatsoever, refuse to make Advances pursuant to Section 2.1 even though the Borrower may be in perfect compliance with this Agreement.

 

Section 2.1.4  Loan Advance Formula .  The Borrower’s ability to request Advances pursuant to Section 2.1 shall be limited in the aggregate principal amount at any one time outstanding, to the lesser of : (a) $25,000,000; or (b) the Total Loan Value.  Notwithstanding anything to the contrary in this Agreement or under the terms of the Note, if at any time the aggregate principal amount outstanding under the Note exceeds the lesser of (a) $25,000,000 or (b) the Total Loan Value, the Borrower shall immediately repay to the Bank the amount of the excess which payment shall be applied to the Note.

 

Section 2.1.5 Clean Up .  Notwithstanding anything to the contrary contained in this Agreement or the Note, the Borrower agrees that for a period of fifteen (15) consecutive days during the term of the Note, there shall be no outstanding balance owing the Bank under the Note.

 

Section 2.1.6 Non-Usage Fee .  The Borrower shall pay the Bank a non-usage fee (“Non-Usage Fee”) at an annual rate equal to .50% applied to the average monthly unused amount of the Note, as determined by the Bank in its reasonable discretion, payable monthly on the 1 ^st day of each month, in arrears.  Any Non-Usage Fee remaining unpaid at the time the Note is due and payable in full shall be due and payable on that date.

 

Section 2.2 Letters of Credit .  The Bank may in its sole discretion, issue for the Borrower’s account, from the date hereof to and including July 31, 2009 or until an Event of Default occurs, whichever occurs first, one or more irrevocable standby letters of credit (each a “Letter of Credit”) to be used to secure payment to supplier(s) of the Borrower in connection with the Borrower’s purchase of inventory from such suppliers.  The Bank shall have no obligation to issue any Letter of Credit to the extent its face amount would exceed, when combined with the face amount of other issued Letters of Credit, the sum of $1,000,000 or, when combined with Advances made under Section 2.1 would exceed the Total Loan Value.  Each Letter of Credit, if any, shall be issued

 

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pursuant to a separate L/C Application entered into by the Borrower and the Bank for the benefit of the issuer, completed in a manner satisfactory to the Bank.  The terms and conditions set forth in each such L/C Application shall supplement the terms and conditions hereof, but if the terms of any such L/C Application and the terms of this Agreement are inconsistent, the terms of this Agreement shall control.  No Letter of Credit shall be issued with an expiry date later than July 31, 2009.

 

Section 2.2.1 Payment of Amounts drawn under Letters of Credit; Obligation of Reimbursement .  The Borrower shall reimburse the Bank for all draws under any Letter of Credit in accordance with the applicable L/C Application as follows:

 

(a)                                  The Borrower hereby agrees to pay the Bank on the day a draft is honored under any Letter of Credit a sum equal to all amounts drawn under such Letter of Credit plus any and all reasonable charges and expenses that the Bank may pay or incur relative to such draw and the applicable L/C Application, plus interest on all such amounts, charges and expenses as set forth below (the Borrower’s obligation to pay all such amounts is herein referred to as the “Obligation of Reimbursement”).

 

(b)                                 Whenever a draft is submitted under a Letter of Credit, the Bank shall make an Advance under Section 2.1 in the amount of the Obligation of Reimbursement and shall apply the proceeds of such Advance thereto.  Such Advance shall be repayable in accordance with and be treated in all other respects as an Advance under Section 2.1.

 

(c)                                  If a draft is submitted under a Letter of Credit when the Borrower is unable, because an Event of Default then exists or for any other reason, to obtain an Advance to pay the Obligation of Reimbursement, the Borrower shall pay to the Bank on demand and in immediately available funds, the amount of the Obligation of Reimbursement together with interest, accrued from the date of the draft until payment in full.  Notwithstanding the Borrower’s inability to obtain an Advance for any reason, the Bank is irrevocably authorized, in its sole discretion, to make an Advance in an amount sufficient to discharge the Obligation of Reimbursement and all accrued but unpaid interest thereon.

 

(d)                                 The Borrower’s obligation to repay any Advance made under this Section 2.2, shall be evidenced by the Note.

 

Section 2.2.2  Discretionary Advances .  The Bank may at any time and for any reason refuse to make an Advance or to issue a Letter of Credit for the Borrower’s account whether the Borrower is or is not in compliance with this agreement.  The Bank need not show that an adverse change has occurred in the Borrower’s condition, financial or otherwise, in order to refuse to issue any Letter of Credit.

 

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Section 2.3  Payment .  All payments of principal and interest under this Agreement or the Note shall be made to the Bank in immediately available funds.  The Borrower agrees that the amount shown on the books and records of the Bank as being the aggregate amount of Advances outstanding under the Note shall be prima facie evidence of the principal amount of the Note then outstanding.  The Borrower hereby authorizes the Bank, if and to the extent payment is not promptly made pursuant hereto, to charge against the Borrower’s account with the Bank an amount equal to the accrued interest and principle from time to time due and payable to the Bank under the Note.

 

Section 2.4  Payment on Non-Business Days .  Whenever any payment to be made hereunder or under the Note shall be stated to be due on a Saturday, Sunday or a holiday for banks under the laws of the State of North Dakota, or the United States, such payment may be made on the next succeeding bank business day, and such extension of time shall in such case be included in the computation of payment of interest on the Note.

 

Section 2.5  Late Fees .  The Borrower agrees to pay to the Bank a late payment service charge in an amount equal to five percent (5%) of any installment of principal or interest (excluding any final installment) not received by the Bank with respect to the Note within ten (10) days of the date due but in no event shall such late payment service charge exceed the maximum amount allowed by law.  Acceptance by the Bank of any late fee shall not constitute a waiver of any Event of Default.

 

ARTICLE III - CONDITIONS OF LENDING

 

Section 3.1  Conditions Precedent to Initial Advance .  The willingness of the Bank to consider making the Advances under Article II (including the initial Advance) is subject to the condition precedent that the Bank shall have received on or before the day of such Advance all of the following, each dated (unless otherwise indicated) such day, in form and substance satisfactory to the Bank:

 

(a)                                   The Note duly executed.

 

(b)                                  A certified copy of the resolutions of the Borrower authorizing the execution, delivery and performance of this Agreement, the Note, Collateral Documents and other matters contemplated hereby.

 

(c)                                   Copies of the articles of incorporation and bylaws of the Borrower certified by its secretary as being true and correct.

 

(d)                                  Evidence that the Borrower is in good standing with the office of the Delaware Secretary of State, North Dakota Secretary of State, Minnesota Secretary of State, South Dakota Secretary of State, Nebraska Secretary of State and Iowa Secretary of State.

 

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(e)                                  Intercreditor agreements executed by Case LLC, Case Credit Corporation, New Holland Credit Company, LLC, New Holland North America, Inc., GE Commercial Distribution Finance Corporation and such other third party creditors of the Borrower as the Bank deems necessary, in form and content satisfactory to the Bank.

 

(f)                                    A security agreement duly executed and related financing statement, together with any such other documentation required by the Bank, whereby to secure the Obligations of the Borrower to the Bank, the Borrower grants the Bank a perfected security interest in all of the Borrower’s inventory, equipment, fixtures, contract rights, accounts and other rights to payment, deposit accounts and general intangibles whether now owned or hereafter acquired and wherever located and the products and proceeds thereof all as more specifically set forth in the security agreement.

 

(g)                                 Evidence that the security interest granted by the security agreement referred to in (f) above is subject only to the prior liens, if any, contemplated by the intercreditor agreements referred to in (e) above and the purchase money liens contemplated by Section 6.2 (f).

 

(h)                                 A certificate of insurance evidencing a policy or policies of insurance covering the Borrower’s operations and property as required by Section 5.7 of this Agreement, such policy to insure against all risks and names the Bank as mortgagee/lender loss payee on all property policies which insures the property of the Borrower subject to the Collateral Documents.

 

(i)                                     A signed copy of an opinion of counsel for the Borrower addressed to the Bank and its participants in form and substance acceptable to the Bank.

 

(j)                                     A completed Borrowing Base Certificate.

 

(k)                                  Copies of all leases of real property under which the Borrower is a tenant, together with a Landlord’s Disclaimer and Consent in favor of the Bank, in form and content acceptable to the Bank, from the landlord of each such lease properly executed on behalf of such landlord.

 

(l)                                      Any and all other agreements, documents, instruments and powers as the Bank may require or deem necessary, in its sole discretion, to carry into effect the purposes of the documents described in this Section 3.1 and this Agreement.

 

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Section 3.2  Conditions Precedent to Advance .  The willingness of the Bank to consider making each Advance (including the initial Advance) under Article II is subject to the further conditions precedent that on the date of such Advance.

 

(a)                                   The representations and warranties contained in Article IV are correct on and as of the date of such Advance as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date.

 

(b)                                  No event has occurred and is continuing, or would result from such Advance, which constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both.

 

ARTICLE IV - REPRESENTATIONS AND WARRANTIES

 

In order to induce the Bank to consider making the Advances described in this Agreement, the Borrower hereby represents, warrants and certifies to the Bank as follows:

 

Section 4.1  Existence and Power .  The Borrower is a Delaware corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and is duly licensed or qualified to transact business in all jurisdictions, where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.  The