Exhibit 4(c)
EXECUTION COPY
$100,000,000
MASTER CREDIT AGREEMENT
dated as of
April 6, 1994
among
CLARK EQUIPMENT COMPANY,
as Borrower
and
THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY HERETO,
as Lenders
and
CHEMICAL BANK,
as Agent
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MASTER CREDIT AGREEMENT
This MASTER CREDIT AGREEMENT, dated as of April 6, 1994, (this
"Agreement") is entered into among CLARK EQUIPMENT COMPANY, a Delaware
corporation, (the "Borrower"), the LENDERS listed on the signature pages
hereof or which may hereafter become a party hereto pursuant to Section
8.01 hereof (individually, a "Lender" and collectively, the "Lenders") and
CHEMICAL BANK, a New York banking corporation, as agent for the Lenders (in
such capacity, the "Agent").
The Borrower has requested the Lenders to extend credit to the
Borrower to enable the Borrower, on the terms and subject to the conditions
set forth in this Agreement, to borrow on a revolving basis, at any time
and from time to time from and including the Closing Date, an aggregate
principal amount at any time outstanding not in excess of the Aggregate
Commitments hereunder.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein,
have the following meanings:
"ABR Borrowing" means a Borrowing comprised of ABR Loans.
"ABR Loan" means a Loan as to which the Alternate Base Rate
applies.
"Adjusted CD Rate" means, with respect to any CD Loan, a rate per
annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the
sum of (a) the product of (i) the Fixed Certificate of Deposit Rate in
effect for the Interest Period applicable to such Loan and (ii) Statutory
Reserves and (b) the Assessment Rate. "Fixed Certificate of Deposit Rate"
means the arithmetic average (rounded upwards to the next 1/100 of 1% if
such average is not such a multiple) of the prevailing rates per annum bid
on or about 10:00 a.m., New York City time, to the Agent on the first
Business Day of the Interest Period applicable to such CD Loan by three New
York City negotiable certificate of deposit dealers of recognized standing
selected by the Agent for the purchase at face value of negotiable
certificates of deposit of major United States money center banks in an
amount approximately equal to the principal amount of the Agent's portion
of the Borrowing of which such CD Loan is a part, and with a maturity
comparable to such Interest Period.
"Administrative Questionnaire" means an Administrative
Questionnaire in the form of Exhibit D hereto.
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"Aggregate Commitments" means the aggregate amount of the
Commitments of all Lenders, which on the Closing Date is $100,000,000 and
which may be reduced from time to time pursuant to Section 2.09.
"Alternate Base Rate" means, for any day, a rate per annum
(rounded upwards if necessary, to the next 1/100 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. "Prime Rate" means the rate of interest
per annum publicly announced from time to time by the Agent as its prime
rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective on the date such change is publicly
announced. "Base CD Rate" means, for any day, the sum of (a) the product
of (i) the Three-Month Secondary CD Rate and (ii) Statutory Reserves and
(b) the Assessment Rate. "Three-Month Secondary CD Rate" means, for any
day, the secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Federal Reserve Board
through the public information telephone line of the Federal Reserve Bank
of New York, to be published in Federal Reserve Statistical Release H.15
(519) during the week following such day or, if such rate shall not be so
reported on such day or on such next preceding Business Day, the average of
the secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately 10:00
a.m., New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the Agent from three
New York City negotiable certificate of deposit dealers of recognized
standing selected by it. "Federal Funds Effective Rate" means, for any
day, the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for the day of such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it. If for any reason the Agent shall have
determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the Federal Funds
Effective Rate or both for any reason, including the inability or failure
of the Agent to obtain sufficient bids in accordance with the terms hereof,
the Alternate Base Rate shall be determined without regard to clause (b) or
(c), or both, of the first sentence of this definition, as appropriate,
until the circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively. The Agent shall promptly notify the Borrower and the Lenders
if at any time the Alternate Base Rate is being determined pursuant to
clause (b) or (c) of the first sentence of this definition.
"Applicable CD Margin" means: (a) at any time that the Credit
Rating by Moody's is lower than Baa3 and the Credit Rating by S&P is lower
than BBB-, a rate per annum equal to 0.6875%; (b) at any time that the
Credit Rating by Moody's is Baa3 and the Credit Rating by S&P is BBB-, a
rate per annum equal to 0.50%; (c) at any time that the Credit Rating by
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Moody's is Baa2 and the Credit Rating by S&P is BBB, a rate per annum equal
to 0.425%; and (d) at any time that the Credit Rating by Moody's is Baa1 or
higher and the Credit Rating by S&P is BBB+ or higher, a rate per annum
equal to 0.375%. If at any time the Borrower has a Credit Rating split
between those set forth in clauses (a) - (d) above, then the Applicable CD
Margin shall be the rate per annum that would be applicable if the highest
of the applicable Credit Ratings is used. If at any time the Borrower has
a Credit Rating from only one of S&P and Moody's, then the Applicable CD
Margin shall be the rate per annum that would be applicable for such Credit
Rating. If at any time the Borrower does not have a Credit Rating from
either Moody's or S&P, then the Applicable CD Margin shall be the rate per
annum that would be applicable if the lowest of the Credit Ratings is used.
In this event, the Borrower shall diligently attempt to obtain from either
of the Rating Agencies a private letter rating of the Notes, which rating
shall then determine the meaning of "Applicable CD Margin" as if it were a
Credit Rating. Any change in the Applicable CD Margin shall be effective
as of the date on which any of the Rating Agencies announces a change in
the Borrower's Credit Rating (if applicable), the date on which the
Borrower has no Credit Rating or the date on which the Borrower obtains a
private letter rating of the Notes from any of the Rating Agencies.
"Applicable LIBOR Margin" means: (a) at any time that the Credit
Rating by Moody's is lower than Baa3 and the Credit Rating by S&P is lower
than BBB-, a rate per annum equal to 0.5625%; (b) at any time that the
Credit Rating by Moody's is Baa3 and the Credit Rating by S&P is BBB-, a
rate per annum equal to 0.375%; (c) at any time that the Credit Rating by
Moody's is Baa2 and the Credit Rating by S&P is BBB, a rate per annum equal
to 0.30%; and (d) at any time that the Credit Rating by Moody's is Baa1 or
higher and the Credit Rating by S&P is BBB+ or higher, a rate per annum
equal to 0.25%. If at any time the Borrower has a Credit Rating split
between those set forth in clauses (a) - (d) above, then the Applicable
LIBOR Margin shall be the rate per annum that would be applicable if the
highest of the applicable Credit Ratings is used. If at any time the
Borrower has a Credit Rating from only one of S&P and Moody's, then the
Applicable LIBOR Margin shall be the rate per annum that would be
applicable for such Credit Rating. If at any time the Borrower does not
have a Credit Rating from either Moody's or S&P, then the Applicable LIBOR
Margin shall be the rate per annum that would be applicable if the lowest
of the Credit Ratings is used. In this event, the Borrower shall
diligently attempt to obtain from either of the Rating Agencies a private
letter rating of the Notes, which rating shall then determine the meaning
of "Applicable LIBOR Margin" as if it were a Credit Rating. Any change in
the Applicable LIBOR Margin shall be effective as of the date on which any
of the Rating Agencies announces a change in the Borrower's Credit Rating
(if applicable), the date on which the Borrower has no Credit Rating or the
date on which the Borrower obtains a private letter rating of the Notes
from any of the Rating Agencies.
"Assessment Rate" means the net annual assessment rate (rounded
upwards, if necessary, to the next higher 1/100 of 1%) determined by the
Agent to be payable to the Federal Deposit Insurance Corporation or any
successor ("FDIC") for the insuring by the FDIC of time deposits made in
the United States as of the day two Business Days prior to the date of
determination.
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"Borrower's 1993 Form 10-K" means the Borrower's annual report on
Form 10-K for 1993, as filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934.
"Borrowing" means one or more Loans of the same Type made by the
Lenders on a single date and as to which a single Interest Period is in
effect (or with respect to Competitive Loans, by each of the Lenders whose
offer to make Competitive Loans as part of such borrowing has been accepted
by the Borrower pursuant to Section 2.05).
"Borrowing Date" means any Business Day specified in a Notice of
Borrowing as a date on which the Borrower requests that either a Borrowing
of Syndicated Loans or a Borrowing of Competitive Loans be made hereunder.
"Business Day" means any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks
are open for business in Chicago and New York City; provided, however,
that, when used in connection with a LIBOR Loan, the term "Business Day"
shall also exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.
"CD Borrowing" means a Borrowing comprised of CD Loans.
"CD Loan" means a Loan as to which the Adjusted CD Rate applies.
"Closing Date" means April 6, 1994.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, with respect to each Lender, the amount set
forth opposite the name of such Lender on the signature pages hereof as the
same may be reduced from time to time pursuant to Section 2.09.
"Commitment Period" means the period from and including the
Closing Date to but not including the Termination Date or such earlier date
on which the Lenders' obligations to make Loans under this Agreement shall
terminate as provided herein.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan pursuant to Section 2.05.
"Competitive Bid Rate" means, as to any Competitive Bid made by a
Lender pursuant to Section 2.05(b), (i) in the case of a LIBOR Competitive
Loan, the Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate
of interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower made
pursuant to Section 2.05 in the form of Exhibit A-1 hereto.
"Competitive Loan" means a Loan from a Lender pursuant to the
bidding procedure described in Section 2.05.
"Competitive Notes" means promissory notes of the Borrower in the
form of Exhibit B hereto, evidencing the obligations of the Borrower to
repay the Competitive Loans.
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"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries plus
the FASB 106 Adjustment minus the FASB 109 Adjustment plus the Terex
Adjustment plus the Non-Cash Benefit Plan Adjustment.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Borrower in its consolidated financial statements as of such date.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower, are treated as a
single employer under Section 414(b) or 414(c) of the Code.
"Credit Rating" means the publicly announced rating on public
senior unsecured long-term debt of the Borrower given by a Rating Agency.
"Debt" of any Person means at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all obligations of such
Person as lessee under capital leases, (v) all debt described in items (i)-(iv)
above of others secured by a Lien on any asset of such Person, whether
or not such debt described in items (i)-(iv) above is assumed by such
Person, and (vi) all debt described in items (i)-(iv) above of others
Guaranteed by such Person; provided, however, that "Debt" shall not include
(a) any obligation of such Person to reimburse commercial banks for
payments under letters of credit opened by such banks in connection with
transactions arising in the ordinary course of such Person's business, if
such obligation shall have been paid when due by such Person, (b) debt
described in items (i)-(iv) above fully collateralized by cash, (c)
Guarantees consisting of obligations of the Borrower or its Subsidiaries,
incurred in the ordinary course of business, to repurchase inventory from
its dealers and distributors pursuant to the terms of its dealer and
distributor agreements, or (d) Guarantees consisting of obligations of the
Borrower and its Subsidiaries, incurred in the ordinary course of business,
to repurchase inventory from banks or other financial institutions in the
event of the repossession of such inventory by the bank or financial
institution from the dealer for whom the inventory was financed by the bank
or financial institution.
"Default" means any condition or event the occurrence of which
would, with the lapse of time or the giving of notice, or both, constitute
an Event of Default.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, including all regulations from time to time promulgated
thereunder.
"Event of Default" has the meaning set forth in Section 7.01.
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"Facility Fee Percentage" means: (a) at any time that the Credit
Rating by Moody's is lower than Baa3 and the Credit Rating by S&P is lower
than BBB-, a rate per annum equal to 0.3125%; (b) at any time that the
Credit Rating by Moody's is Baa3 and the Credit Rating by S&P is BBB-, a
rate per annum equal to 0.225%; (c) at any time that the Credit Rating by
Moody's is Baa2 and the Credit Rating by S&P is BBB, a rate per annum equal
to 0.20%; and (d) at any time that the Credit Rating by Moody's is Baa1 or
higher and the Credit Rating by S&P is BBB+ or higher, a rate per annum
equal to 0.1875%. If at any time the Borrower has a Credit Rating split
between those set forth in clauses (a) - (d) above, then the Facility Fee
Percentage shall be the rate per annum that would be applicable if the
highest of the applicable Credit Ratings is used. If at any time the
Borrower has a Credit Rating from only one of S&P and Moody's, then the
Facility Fee Percentage shall be the rate per annum that would be
applicable for such Credit Rating. If at any time the Borrower does not
have a Credit Rating from either Moody's or S&P, then the Facility Fee
Percentage shall be the rate per annum that would be applicable if the
lowest of the Credit Ratings is used. In this event, the Borrower shall
diligently attempt to obtain from either of the Rating Agencies a private
letter rating of the Notes, which rating shall then determine the meaning
of "Facility Fee Percentage" as if it were a Credit Rating. Any change in
the Facility Fee Percentage shall be effective as of the date on which any
of the Rating Agencies announces a change in the Borrower's Credit Rating
(if applicable), the date on which the Borrower has no Credit Rating or the
date on which the Borrower obtains a private letter rating of the Notes
from any of the Rating Agencies.
"FASB 106 Adjustment" means the sum of the current and long-term
portions of the Borrower's liability resulting from the Borrower's
adoption, and subsequent application, of Financial Accounting Standards
Board Statement 106, as shown from time to time in the Borrower's balance
sheet under the captions "Accrued Postretirement Benefits" and "Current
Liabilities: Accrued Postretirement Benefits".
"FASB 109 Adjustment" means the amount of tax benefit resulting
from time to time from the application of Financial Accounting Standards
Board Statement 109 to the FASB 106 Adjustment, as calculated by the
Borrower in accordance with generally accepted accounting principles.
"Fixed Rate Loan" means any Competitive Loan offered by a Lender
pursuant to Section 2.05 accruing interest at an absolute percentage rate
per annum, not necessarily related to the Alternate Base Rate, the Adjusted
CD Rate or the LIBOR Rate, selected by such Lender and expressed as a
decimal (to no more than four decimal places), which the Borrower shall
have elected to accept.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or
other obligation of any other Person and, without limiting the generality
of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
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(ii) entered into for the purpose of assuring in any other manner the
obligee of such Debt or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part),
provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.
"Interest Period" means: (a) with respect to any Syndicated Loan:
(i) initially, the period commencing on the Borrowing Date with
respect to such Syndicated Loan and ending, with respect to LIBOR
Syndicated Loans, one, two, three or six months thereafter as selected
by the Borrower in its Notice of Borrowing as provided in Section
2.03; or, with respect to CD Loans, 30, 60, 90 or 180 days thereafter
as selected by the Borrower in its Notice of Borrowing as provided in
Section 2.03; or, with respect to ABR Loans, within ninety days
thereafter as selected by the Borrower in its Notice of Borrowing as
provided in Section 2.03; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Syndicated Loan and
ending, with respect to LIBOR Syndicated Loans, one, two, three or six
months thereafter as selected by the Borrower no later than 11:00 a.m.
(New York City time) three Business Days prior to the last day of the
then current Interest Period with respect to such LIBOR Syndicated
Loan; or, with respect to CD Loans, 30, 60, 90 or 180 days thereafter
as selected by the Borrower no later than 11:00 a.m. (New York City
time) two Business Days prior to the last day of the then current
Interest Period with respect to such CD Loan; or, with respect to ABR
Loans, within ninety days thereafter as selected by the Borrower no
later than 10:30 a.m. (New York City time) on the same Business Day as
the last day of the then current Interest Period with respect to such
ABR Loan; and
(b) with respect to any Competitive Loan:
(i) as to any LIBOR Competitive Loan, the period commencing on
the date of such LIBOR Competitive Loan and ending one, two, three or
six months thereafter, as the Borrower may elect; and
(ii) as to any Fixed Rate Loan, the period (not to be less than
seven days nor to exceed 360 days) commencing on the date of such
Competitive Loan and ending on the date specified in the Competitive
Bid Request pursuant to which the offer to make the Fixed Rate Loan
was extended;
provided, that all of the foregoing provisions relating to Interest Periods
are subject to the following:
(A) if any Interest Period would otherwise end on a day which is
not a Business Day, that Interest Period shall be extended to the next
succeeding Business Day unless, with respect to LIBOR Loans only, the
result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
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(B) with respect to Syndicated Loans only, if the Borrower shall
fail to give notice as provided above with respect to a LIBOR
Syndicated Loan or a CD Loan, the Borrower shall be deemed to have
selected an ABR Loan to replace the affected LIBOR Syndicated Loan or
CD Loan;
(C) with respect to Syndicated Loans only, if the Borrower fails
to specify the Interest Period applicable to a LIBOR Syndicated Loan,
an Interest Period of a one month duration shall apply, and if the
Borrower fails to specify the Interest Period applicable to a CD Loan,
an Interest Period of a 30 day duration shall apply;
(D) no Interest Period shall extend beyond the Termination Date;
and
(E) with respect to Syndicated Loans only, the Borrower shall
make no more than five Interest Period selections in any calendar
month and shall select Interest Periods in such a manner that all
Interest Periods at any one time outstanding hereunder shall end on no
more than five different dates in any calendar month.
"Joint Venture Company" means VME Group N.V., a Netherlands
corporation which is fifty percent-owned by the Borrower.
"LIBOR Borrowing" means a Borrowing comprised of LIBOR Syndicated
Loans or LIBOR Competitive Loans.
"LIBOR Competitive Loan" means any Competitive Loan bearing
interest at a rate determined by reference to the LIBOR Rate in accordance
with the provisions of Article II.
"LIBOR Loan" means collectively a LIBOR Competitive Loan and a
LIBOR Syndicated Loan.
"LIBOR Rate" means, with respect to any LIBOR Borrowing for any
Interest Period, an interest rate per annum determined by the Agent to be
the arithmetic average of the rates designated as "LIBO" on Telerate screen
number 3750 USD-LIBOR-BBA (rounded upwards if necessary, to the next
one-sixteenth of one percent) for deposits with a maturity comparable to
such Interest Period offered in immediately available funds in the London
interbank market at approximately 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period; provided, however, that
if such screen is cancelled or becomes otherwise unavailable, the "LIBOR
Rate" shall be determined by some other reference to be agreed upon by the
Borrower and the Agent.
"LIBOR Syndicated Loan" means any Syndicated Loan bearing
interest at a rate determined by reference to the LIBOR Rate in accordance
with the provisions of Article II.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset. For the purposes of this Agreement, the Borrower or any
Subsidiary shall be deemed to own subject to a Lien any asset which it has
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acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means a Syndicated Loan or a Competitive Loan.
"Margin" means as to any Competitive Bid made by a Lender
pursuant to Section 2.05(b), the margin (expressed as a percentage rate per
annum in the form of a decimal to no more than four decimal places) to be
added to or subtracted from the LIBOR Rate in order to determine the
interest rate acceptable to such Lender with respect to the Competitive
Loan to which such bid relates. As used in this Agreement, the phrase "the
sum of" any Margin and the LIBOR Rate, or similar phrase, shall require an
addition (if this definition requires an addition of such Margin to such
rate) or a subtraction (if this definition requires a subtraction of such
Margin from such rate).
"Material Subsidiary" means (i) any Subsidiary of the Borrower
with revenues during the fiscal year of the Borrower most recently ended
equal to or greater than 10% of the total revenues of the Borrower and its
Consolidated Subsidiaries during such year or (ii) any Subsidiary of the
Borrower with assets as of the last day of the Borrower's most recently
ended fiscal year equal to or greater than 10% of the total assets of the
Borrower and its Consolidated Subsidiaries at such date; provided, however,
that intercompany accounts shall be excluded from the determination of
total assets for purposes of clause (ii) above.
"Moody's" means Moody's Investor Services, Inc.
"Non-Cash Benefit Plan Adjustment" means the non-cash impact on
consolidated stockholders' equity resulting from time to time from the
application of Financial Accounting Standards Board Statement 87 to the
Borrower's Retirement Program for Salaried Employees - Plan 23, including,
but not limited to, any such impact that results from the termination of
the Borrower's leveraged employee stock ownership plan.
"Notes" means the Competitive Notes and the Syndicated Notes, and
"Note" means any Competitive Note or Syndicated Note.
"Notice of Borrowing" has the meaning ascribed to it in Section
2.03 hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, a
trust or unincorporated organization, and a government or political
subdivision or an agency thereof.
"Plan" means at any time an employee pension benefit plan as
defined in Section 3(2) of ERISA and which is covered by Title IV of ERISA
or subject to the minimum funding standards under Section 412 of the Code
and is either (i) maintained by a member of the Controlled Group for
employees of a member of the Controlled Group or (ii) maintained pursuant
to a collective bargaining agreement or any other arrangement under which
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more than one employer makes contributions and to which a member of the
Controlled Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made
contributions.
"Rating Agency" means S&P or Moody's and "Rating Agencies" means
both S&P and Moody's.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System from time to time in effect and shall include
any successor or other regulation or official interpretation of said Board
of Governors relating to reserve requirements applicable to member banks of
the Federal Reserve System.
"Regulations G, U and X" means Regulations G, U and X of the
Board of Governors of the Federal Reserve System from time to time in
effect and shall include any successor or other regulation or official
interpretation of said Board of Governors relating to the extension of
credit by banks for the purpose of purchasing or carrying margin stocks
applicable to member banks of the Federal Reserve System.
"Required Lenders" means: (a) at any time prior to the
termination of the Commitments as provided hereunder, Lenders having
Commitments representing at least 51% of the Aggregate Commitments or (b)
for purposes of acceleration pursuant to Article VII or at any time
subsequent to the termination of Commitments as provided hereunder, Lenders
holding Loans representing at least 51% of the aggregate principal amount
of the Loans outstanding.
"Responsible Officer" means the President, Vice President and
Treasurer, Vice President and Controller or Assistant Treasurer of the
Borrower, or any person designated by the Vice President and Treasurer of
the Borrower.
"S&P" means Standard & Poor's Corporation.
"Statutory Reserves" means a fraction (expressed as a
percentage), the numerator of which is one and the denominator of which is
one minus a percentage (expressed as a decimal) which is in effect on the
date of determination as prescribed by the Board of Governors of the
Federal Reserve System (or any successor), for determining the reserve
requirement for a member bank of the Federal Reserve System in New York
City with deposits exceeding one billion dollars in respect of new
non-personal time deposits in dollars in New York City having a maturity of
three months and in an amount of $100,000 or more.
"Subsidiary" of a Person means any corporation or other entity of
which securities or other ownership interests having ordinary voting power
to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such
Person.
"Syndicated Loan" means a loan made by a Lender to the Borrower
pursuant to Section 2.01.
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"Syndicated Notes" means promissory notes of the Borrower in the
form of Exhibit C hereto, evidencing the obligations of the Borrower to
repay the Syndicated Loans.
"Terex Adjustment" means the impact on consolidated stockholder's
equity resulting from time to time from (i) the bankruptcy or insolvency of
Terex Corporation or Clark Material Handling Company or (ii) the failure of
Terex Corporation or Clark Material Handling Company to perform any of the
liabilities and obligations which they assumed in connection with the sale
of Clark Material Handling Company and its affiliates by the Borrower to
Terex Corporation; provided, however, that the amount of this adjustment
shall in no event exceed $37,000,000.00.
"Termination Date" means the date of termination of the Lenders'
obligations to make Loans hereunder to the Borrower, as provided in Section
11.01 hereof.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the interest rate by reference to which interest on such Loan or
on the Loans comprising such Borrowing is determined.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests
of which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared
in accordance with generally accepted accounting principles applied on a
basis consistent with the most recent audited consolidated financial
statements of the Borrower and its Consolidated Subsidiaries delivered to
the Lenders. The Borrower shall promptly notify the Agent of any material
change in or application of such generally accepted accounting principles
adopted by the Borrower and reflected or to be reflected in financial
statements of the Borrower, including, but not limited to, any such changes
or applications resulting from the Borrower's adoption of the principles
set forth in the Exposure Draft entitled "Accounting for the Impairment of
Long-Lived Assets", and the Borrower and Lenders agree that, in the event
of any such change, they shall discuss in good faith adjustment to the
covenants contained in Sections 6.01, 6.02, 6.03 and 6.04 hereof.
ARTICLE II
LOANS
SECTION 2.01. Syndicated Loans. Each Lender severally, and not
jointly, agrees, on the terms and conditions set forth in this Agreement,
to make revolving credit loans (individually, a "Syndicated Loan";
collectively, the "Syndicated Loans") to the Borrower from time to time
during the Commitment Period in a principal amount outstanding at any time
not exceeding the amount of such Lender's Commitment, subject to reduction
as provided in Section 2.09, subject, however, to the conditions that (i)
at no time shall the outstanding aggregate principal amount of all
12
Syndicated Loans and all Competitive Loans made by the Lenders exceed the
Aggregate Commitments and (ii) at no time shall (A) the sum of (x) the
outstanding aggregate principal amount of all Syndicated Loans made by any
Lender and (y) the portion of such Lender's Commitment deemed (pursuant to
Section 2.06(a)) used by such Lender with respect to Competitive Loans
exceed (B) the Commitment of such Lender. The Borrower may borrow, repay
the Syndicated Loans in whole or in part and reborrow, all in accordance
with the terms and conditions hereof. All Syndicated Loans shall be due
and payable at the end of the Interest Period applicable thereto, and all
amounts outstanding shall be due and payable on the Termination Date. Each
Borrowing of Syndicated Loans shall be made by the Lenders simultaneously
and proportionately to the amount of each Lender's Commitment, it being
understood that no Lender shall be responsible for any default by any other
Lender in that other Lender's obligation to make a Syndicated Loan
hereunder nor shall any Lender's Commitment be increased or decreased as a
result of the default by any other Lender in that other Lender's obligation
to make a Syndicated Loan hereunder.
Section 2.02. Syndicated Notes. The Borrower shall execute and
deliver to the Agent, for each Lender, on or before the Closing Date, a
Syndicated Note in the form of Exhibit C attached hereto and made a part
hereof to evidence that Lender's Syndicated Loans, in the principal amount
of such Lender's Commitment and with other appropriate insertions (a
"Syndicated Note"). Each Lender is hereby authorized to record the amount
and type of each Syndicated Loan made by such Lender, the date and the
amount of each payment or prepayment of principal thereof, the length of
the Interest Period with respect thereto, the LIBOR Rate applicable to each
LIBOR Syndicated Loan, the Alternate Base Rate applicable to each ABR Loan,
and the Adjusted CD Rate applicable to each CD Loan, on its books or
records or on the schedule annexed to and constituting a part of its
Syndicated Note, and any such recordation shall, in the absence of manifest
error, constitute prima facie evidence of the accuracy of the information
so recorded, provided, however, that failure by a Lender to make any such
recordation on its books or records or on its Syndicated Note shall not
affect any of the obligations of the Borrower under such Syndicated Note or
this Agreement.
2.03. Notice of Borrowing. Whenever the Borrower desires to
borrow under Section 2.01 hereof, it shall deliver to the Agent a written
Syndicated Loan Notice of Borrowing, a form of which is attached hereto as
Exhibit A-5, (each a "Notice of Borrowing") no later than (a) 11:00 a.m.
(New York City time) on the third Business Day prior to the proposed
Borrowing Date, in the case of a requested LIBOR Syndicated Loan, (b) 11:00
a.m. (New York City time) on the second Business Day prior to the proposed
Borrowing Date, in the case of a requested CD Loan, or (c) 10:30 a.m. (New
York City time) on the proposed Borrowing Date, in the case of a requested
ABR Loan. The Notice of Borrowing shall specify (i) the proposed Borrowing
Date (which shall be a Business Day), (ii) the amount of the proposed
Borrowing, (iii) whether such Borrowing is to consist of LIBOR Syndicated
Loans, CD Loans or ABR Loans, provided that any Syndicated Loan made while
a Default is continuing may be made only as an ABR Loan, and (iv) the
Interest Period for such Borrowing. Each Notice of Borrowing which shall
fail to state an Interest Period applicable to a LIBOR Borrowing shall be
deemed to be a request for an Interest Period of a one month duration, and
each Notice of Borrowing which shall fail to state an Interest Period
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applicable to a CD Borrowing shall be deemed to be a request for an
Interest Period of a thirty day duration. LIBOR Borrowings and CD
Borrowings shall be in minimum amounts of $8,000,000 and integral multiples
of $1,000,000 in excess of that amount. ABR Borrowings shall be in a
minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess
of that amount. In lieu of delivering a Notice of Borrowing, the Borrower
may give the Agent telephonic notice by the required time and specifying
the required information of any proposed Borrowing under Section 2.01;
provided that such telephonic notice shall be promptly confirmed in writing
by delivery by telecopier or telex of a Notice of Borrowing to the Agent on
the same Business Day Agent receives telephonic notice. If the Borrower
fails to specify whether a Borrowing is to be a LIBOR Borrowing, a CD
Borrowing or an ABR Borrowing, such Borrowing shall be an ABR Borrowing.
In the case of LIBOR Borrowings, the Agent shall notify the Borrower two
Business Days prior to the Borrowing Date of the LIBOR Rate applicable to
the proposed LIBOR Borrowing for the Interest Period specified for such
LIBOR Borrowing. In the case of CD Borrowings, the Agent shall notify the
Borrower on the Borrowing Date of the Adjusted CD Rate applicable to the
proposed CD Borrowing for the Interest Period specified for such CD
Borrowing.
Neither the Agent nor any Lender shall incur any liability to the
Borrower in acting upon any telephonic notice referred to above that the
Agent believes in good faith to have been given by a duly authorized
officer or other person authorized to borrow on behalf of the Borrower or
for otherwise acting in good faith under this Section and upon funding of
the Syndicated Loans by the Lenders in accordance with this Agreement.
Section 2.04. Disbursement of Funds. (a) The Agent shall give
each Lender notice of each Notice of Borrowing, or telephonic notice
thereof, and the contents thereof, promptly on the day of the Agent's
receipt thereof. Except as provided to the contrary in subsection (c)
below, each Lender shall make the amount of its Syndicated Loan available
to the Agent, in same day funds, at the office of the Agent located in New
York, New York, not later than 1:00 p.m. (New York time) on the Borrowing
Date, and the Agent shall make the proceeds of such Syndicated Loans
available to the Borrower by 3:00 p.m. (New York time) on such Borrowing
Date by causing an amount of same day funds equal to the proceeds of all
such Syndicated Loans received by the Agent to be credited to the account
of the Borrower at such office of the Agent. Each Lender may at its option
make any Syndicated Loan which is a LIBOR Syndicated Loan by causing a
foreign branch or affiliate of such Lender to make such Loan, but only if
any exercise of such option shall not subject the Borrower to any
additional or increased payment obligations pursuant to this Agreement.
(b) Unless the Agent shall have been notified by any Lender
prior to any Borrowing Date in respect of any Syndicated Loan that such
Lender does not intend to make available to the Agent such Lender's
Syndicated Loan on such Borrowing Date, the Agent may assume that such
Lender has made such amount available to the Agent on such Borrowing Date,
and the Agent in its sole discretion may, but shall not be obligated to,
make available to the Borrower a corresponding amount on such Borrowing
Date. If the Agent does determine to make available to the Borrower such
corresponding amount, the Agent shall promptly notify the Borrower of such
determination. If such corresponding amount is not in fact made available
14
to the Agent by such Lender, the Agent shall promptly notify such Lender of
such fact, and shall be entitled to recover such corresponding amount on
demand from such Lender together with interest thereon, for each day from
the date on which the Agent notified such Lender that such corresponding
amount was not received by the Agent until the date such amount is paid to
the Agent, at the customary rate set by the Agent for the correction of
errors among banks for two Business Days and thereafter at the ABR Rate.
If such Lender does not pay such corresponding amount forthwith upon the
Agent's demand therefor, the Agent shall promptly notify the Borrower, and
the Borrower shall immediately pay such corresponding amount to the Agent.
Nothing in this Section shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment hereunder or to prejudice any rights
that the Borrower may have against any Lender as a result of any default by
such Lender hereunder.
(c) Each Borrowing of Syndicated Loans which does not increase
the aggregate outstanding principal amount of Syndicated Loans owing to
Lenders over the aggregate principal amount of Syndicated Loans outstanding
immediately prior to the making of such Syndicated Loans shall be effected
by the Lenders by applying the proceeds of the new Borrowing of Syndicated
Loans (or portion thereof) to the Syndicated Loans (or portion thereof) due
and payable on such date, and accrued interest on the Syndicated Loan (or
portion thereof) due and payable on such date shall be paid by the Borrower
at the time of such new Borrowing of Syndicated Loans.
Section 2.05. Competitive Bid Procedure. (a) In order to
request Competitive Bids, the Borrower shall hand deliver or telex or
telecopy to the Agent a duly completed Competitive Bid Request in the form
of Exhibit A-1 hereto (each a "Competitive Bid Request"), signed by a
Responsible Officer of the Borrower, to be received by the Agent (i) in the
case of Borrowings of LIBOR Competitive Loans, not later than 10:00 a.m.
New York City time four Business Days before a proposed Borrowing of LIBOR
Competitive Loans, and (ii) in the case of Borrowings of Fixed Rate Loans,
not later than 10:00 a.m. New York City time one Business Day before a
proposed Borrowing of Fixed Rate Loans. No CD Loan or ABR Loan shall be
requested in or made pursuant to a Competitive Bid Request. Competitive
Bid Requests that do not conform substantially to the format of Exhibit A-1
may be rejected in the Agent's sole discretion, and the Agent shall notify
the Borrower of such rejection by telex or telecopier not later than noon,
New York City time on the date of receipt. Such Competitive Bid Request
shall in each case refer to this Agreement and specify (w) whether the
Loans then being requested are to be LIBOR Competitive Loans or Fixed Rate
Loans, (x) the date of such Loans (which shall be a Business Day), (y) the
aggregate principal amount thereof (which shall not be greater than the
aggregate amount of the then unused Commitments of all the Lenders, shall
not be less than $5,000,000 and shall be an integral multiple of
$1,000,000), and (z) the Interest Period with respect thereto. The
maturity date for repayment for each Competitive Loan to be made as a part
of each Borrowing shall be the last day of the Interest Period relating
thereto. Promptly on the date of receipt by the Agent of such Competitive
Bid Request, the Agent shall invite by telex or telecopier (in the form set
forth in Exhibit A-2 hereto) the Lenders to make Competitive Bids pursuant
to such Competitive Bid Request in accordance with the terms and conditions
of this Agreement.
15
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to such Competitive Bid
Request. Each Competitive Bid by a Lender must be received by the Agent
via telex or telecopier, in the form of Exhibit A-3 hereto, (i) in the case
of LIBOR Competitive Loans, not later than 9:30 a.m. New York City time,
three Business Days before a proposed Borrowing of LIBOR Competitive Loans,
and (ii) in the case of Fixed Rate Loans, not later than 9:30 a.m. New York
City time, on the Business Day of a proposed Borrowing of Fixed Rate Loans.
Multiple bids will be accepted by the Agent. Any Competitive Bid of any
Lender that does not conform precisely to the format of Exhibit A-3 may be
rejected by the Agent upon consultation with the Borrower and the Agent
shall notify such Lender of such rejection by telex or telecopier as soon
as practicable after consultation with the Borrower. Each Competitive Bid
of any Lender shall refer to this Agreement and specify (x) the maximum
principal amount (which may be up to the full amount of the requested
Borrowing regardless of the Commitment of such Lender and which shall be in
a minimum amount of $5,000,000 and in an integral multiple of $1,000,000)
of the Competitive Loan that such Lender is willing to make to the
Borrower, (y) the Competitive Bid Rate at which such Lender is prepared to
make the Competitive Loan and (z) the Interest Period and last date
thereof. If any Lender shall elect not to make a Competitive Bid, such
Lender shall so notify the Agent via telex or telecopier (i) in the case of
LIBOR Competitive Loans, not later than 9:30 a.m. New York City time, three
Business Days before a proposed Borrowing of LIBOR Competitive Loans, and
(ii) in the case of Fixed Rate Loans, not later than 9:30 a.m. New York
City time, the same Business Day of a proposed Borrowing of Fixed Rate
Loans; provided, however, that failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any Competitive Loan.
A Competitive Bid submitted by a Lender pursuant to this paragraph (b)
shall be irrevocable.
(c) The Agent shall promptly notify the Borrower by telex or
telecopier (i) in the case of LIBOR Competitive Loans, not later than 10:00
a.m. New York City time, three Business Days before a proposed Borrowing of
LIBOR Competitive Loans, and (ii) in the case of Fixed Rate Loans, not
later than 10:00 a.m. New York City time the same Business Day of a
proposed Borrowing of Fixed Rate Loans, of the number of Competitive Bids
made, the Competitive Bid Rate and the maximum principal amount of each
Competitive Loan in respect of which a Competitive Bid was made and the
identity of the Lender making such Competitive Bid. The Agent shall send a
copy of all Competitive Bids to the Borrower as soon as practicable after
receipt thereof.
(d) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The Borrower shall
notify the Agent by telephone, confirmed by telex or telecopier in the form
of a Competitive Bid Accept/Reject Letter, a copy of which is attached as
Exhibit A-4 hereto, whether and to what extent it has decided to accept or
reject any of or all the bids referred to in paragraph (c) above, (x) in
the case of a LIBOR Competitive Loan, not later than 10:30 a.m., New York
City time, three Business Days before a proposed Borrowing of LIBOR
Competitive Loans, and (y) in the case of a Fixed Rate Loan, not later than
10:30 a.m., New York City time, on the day of a proposed Borrowing of Fixed
Rate Loans; provided, however, that (i) the failure by the Borrower to give
16
such notice shall be deemed to be a rejection of all the bids referred to
in paragraph (c) above, (ii) the Borrower shall not accept a bid made at a
particular Competitive Bid Rate if the Borrower has decided to reject a bid
made at a lower Competitive Bid Rate, (iii) the aggregate amount of the
Competitive Bids accepted by the Borrower shall not exceed the principal
amount specified in the Competitive Bid Request, (iv) if the Borrower shall
accept a bid or bids made at a particular Competitive Bid Rate but the
amount of such bid or bids shall cause the total amount of bids to be
accepted by the Borrower to exceed the amount specified in the Competitive
Bid Request, then the Borrower shall accept a portion of such bid or bids
in an amount equal to the amount specified in the Competitive Bid Request
less the amount of all other Competitive Bids accepted with respect to such
Competitive Bid Request, which acceptance, in the case of multiple bids at
such Competitive Bid Rate, shall be made pro rata in accordance with the
amount of each such bid at such Competitive Bid Rate, and (v) except
pursuant to clause (iv) above, no bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum principal amount of
$5,000,000 and an integral multiple of $1,000,000; provided further,
however, that if a Competitive Loan must be in an amount less than
$5,000,000 because of the provisions of clause (iv) above, such Competitive
Loan may be for a minimum of $1,000,000 or any integral multiple thereof,
and in calculating the pro rata allocation of acceptances of portions of
multiple bids at a particular Competitive Bid Rate pursuant to clause (iv)
the amounts shall be rounded to integral multiples of $1,000,000 in a
manner which shall be in the discretion of the Borrower. A notice given by
the Borrower pursuant to this paragraph (d) shall be irrevocable.
(e) The Agent shall promptly notify the Lenders whether or not
their Competitive Bids have been accepted (and if so, in what amount) by
telex or telecopier sent by the Agent. Each successful bidder will
thereupon become bound, subject to the other applicable conditions hereof,
to make the Competitive Loan in respect of which its Competitive Bid has
been accepted.
(f) No Competitive Bid Request shall be issued by the Borrower
within five Business Days of the date of any other Competitive Bid Request.
(g) If the Agent in its capacity as a Lender shall elect to
submit a Competitive Bid, it shall submit such bid to the Borrower
one-quarter hour earlier than the latest time at which the other Lenders
are required to submit their bids to the Agent pursuant to Section 2.05(b).
(h) All notices required by this Section 2.05 shall be made in
accordance with Section 11.04.
Section 2.06. Competitive Loans. (a) Competitive Loans made by
the Borrower on any date shall be in an integral multiple of $1,000,000 and
in a minimum aggregate principal amount of $5,000,000. Competitive Loans
shall be made to the extent Competitive Bids are accepted by the Borrower
in accordance with Section 2.05(d). At no time shall the aggregate
outstanding principal amount of all Competitive Loans exceed an amount
equal to the Aggregate Commitments minus the aggregate then outstanding
principal amount of all Syndicated Loans. The Aggregate Commitments shall
be deemed used from time to time to the extent of the aggregate amount of
the Competitive Loans then outstanding, pro rata in accordance with the
Lenders' respective Commitments.
17
(b) Each Competitive Loan shall be a LIBOR Competitive Loan or a
Fixed Rate Loan, as the Borrower may request subject to and in accordance
with Section 2.05. Each Lender may at its option make any LIBOR
Competitive Loan by causing a foreign branch or affiliate of such Lender to
make such Loan but only if any exercise of such option shall not subject
the Borrower to any additional or increased payment obligations pursuant to
this Agreement. Any exercise of such option in accordance with the terms
hereof shall not affect the obligation of the Borrower to repay such Loan
in accordance with the terms of the applicable Competitive Note.
Competitive Loans of more than one interest rate option may be outstanding
at the same time.
(c) Each Lender shall make its Competitive Loan on the proposed
date thereof by paying the amount required to the Agent, in immediately
available funds not later than 1:00 p.m., New York City time, and the Agent
shall by 3:00 p.m., New York City time, credit the amounts so received to
the general deposit account of the Borrower with the Agent or, if
Competitive Loans are not made on such date because any condition precedent
to a Borrowing herein specified shall not have been met, return the amounts
so received to the respective Lenders as soon as practicable.
Section 2.07. Competitive Notes. The Borrower shall execute and
deliver to each Lender (or to the Agent on behalf of each Lender) a
Competitive Note substantially in the form of Exhibit B attached hereto.
The Competitive Note issued to each Lender shall (i) be payable to the
order of such Lender and be dated the Closing Date, (ii) be in a stated
principal amount equal to the Aggregate Commitments and be payable in the
outstanding principal amount of Competitive Loans evidenced thereby from
time to time, (iii) mature with respect to each Competitive Loan evidenced
thereby on the last day of the Interest Period applicable thereto, (iv)
bear interest as provided in Section 3.01 in respect of LIBOR Competitive
Loans or Fixed Rate Loans, as the case may be, evidenced thereby, and (v)
be entitled to the benefits of this Agreement and the other loan documents.
Each Competitive Note shall bear interest from the date of the first
Borrowing evidenced by such Note on the outstanding principal balance
thereof as set forth in Section 3.01. Each Lender shall, and is hereby
authorized by the Borrower to, endorse on the schedule attached to each
Competitive Note of such Lender (or on a continuation of such schedule
attached to each such Note and made a part thereof) an appropriate notation
evidencing the date, amount and interest rate of each Competitive Loan of
such Lender, each payment or prepayment of principal of any Competitive
Loan and the other information provided for on such schedule; provided,
however, that the failure of any Lender to make such a notation or any
error therein shall not in any manner affect the obligation of the Borrower
to repay the Competitive Loans made by such Lender in accordance with the
terms of such Competitive Note.
Section 2.08. Use of Proceeds. The proceeds of the Loans shall
be used solely for general corporate purposes of the Borrower, including,
but not limited to, acquisitions and commercial paper support.
Section 2.09. Optional Reduction of Commitments. The Borrower
shall have the right, from time to time, upon not less than three Business
Days' prior notice to the Agent, to terminate the Commitments or reduce the
amount of the Aggregate Commitments, provided that (a) any such reduction
18
shall be in an amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof and shall permanently reduce the Aggregate Commitments then
in effect, (b) no such reduction may reduce the amount of the Aggregate
Commitments to an amount less than the aggregate outstanding principal
amount of Competitive Loans, (c) to the extent, if any, that the amount of
the Loans then outstanding exceeds the amount of the Aggregate Commitments
as then reduced, the Borrower shall, on the date of such reduction, prepay
the Syndicated Loans in an amount not less than such excess, together with
accrued interest on the amount so prepaid to the date of such prepayment
and any amounts owing by the Borrower pursuant to Section 11.02(b) hereof
as a result of such prepayment, and (d) the Borrower shall, on the date of
such reduction, pay accrued facility fees pursuant to Section 3.06 hereof
on the amount of such reduction to the date of such reduction. Upon any
such reduction of the Aggregate Commitments, the Commitment of each Lender
shall be reduced pro rata. Each notice of reduction of the Aggregate
Commitments shall be irrevocable once given.
Section 2.10. Optional Prepayment of Loans. (a) The Borrower
may at any time and from time to time prepay Syndicated Loans, in whole or
in part, without premium or penalty, upon at least one Business Day's
notice to the Agent, in the case of prepayment of ABR Loans, and upon at
least three Business Days' notice to the Agent, in the case of prepayment
of LIBOR Syndicated Loans or CD Loans, specifying the date and amount of
prepayment and the Loans and the type of Syndicated Loans being prepaid.
Upon receipt of such notice the Agent shall promptly notify each Lender
thereof. If such notice is given by the Borrower, the Borrower shall make
such prepayment, and the payment amount specified in such notice shall be
due and payable on the date specified therein, together with accrued
interest to such date on the amount prepaid and any amounts owing by the
Borrower pursuant to Section 11.02(b) hereof as a result of such
prepayment. Partial payments pursuant to this Section shall be in an
aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000
in excess thereof.
(b) Competitive Loans may not be prepaid by the Borrower, except
upon acceleration pursuant to Article VII hereof.
ARTICLE III
INTEREST RATE PROVISIONS, FEES AND PAYMENTS
Section 3.01. Interest Rate and Payments. (a) Each LIBOR Loan
shall bear interest on the unpaid principal amount at a rate per annum
equal to the LIBOR Rate plus (i) if such Loan is a LIBOR Competitive Loan,
the Margin specified by the Lender making such Loan in its Competitive Bid
with respect to such Loan and (ii) if such Loan is a LIBOR Syndicated Loan,
the Applicable LIBOR Margin. Each CD Loan shall bear interest on the
unpaid principal amount at a rate per annum equal to the Adjusted CD Rate
plus the Applicable CD Margin. The ABR Loans shall bear interest on the
unpaid principal amount at a rate per annum equal to the Alternate Base
Rate. Each Fixed Rate Loan shall bear interest at a rate per annum equal
to the fixed rate of interest offered by the Lender making such Loan and
accepted by the Borrower pursuant to Section 2.05.
19
(b) Interest on each LIBOR Loan, each CD Loan and each Fixed
Rate Loan shall be due and payable in arrears at the end of the Interest
Period applicable thereto and also, in the case of a LIBOR Loan with an
Interest Period in excess of three months, upon the expiration of three
months following the commencement of the Interest Period, in the case of a
CD Loan with an Interest Period in excess of 90 days, upon the expiration
of 90 days following the commencement of the Interest Period, and in the
case of a Fixed Rate Loan with an Interest Period in excess of 90 days, at
the end of each calendar quarter, unless, as of the end of such calendar
quarter, no more than 90 days remain in the Interest Period. Interest on
each ABR Loan shall be due and payable in arrears at the end of the
Interest Period applicable thereto and on the last Business Day of each
calendar quarter. Interest on principal prepaid on Loans shall also be due
and payable in arrears upon such prepayment and accrued and unpaid interest
on all Loans shall also be due and payable in arrears upon any acceleration
of principal pursuant to Article VII and on the Termination Date.
(c) The Agent shall notify the Lenders, in accordance with the
Agent's customary procedures, of the LIBOR Rate applicable to each LIBOR
Loan and the Adjusted CD Rate applicable to each CD Loan, and shall notify
the Lenders from time to time, in accordance with the Agent's customary
procedures, of the ABR Rate.
Section 3.02. Late Principal Payment. Any principal payments on
the Loans not paid when due, whether at stated maturity, by notice of
prepayment, by acceleration or otherwise, shall, to the extent permitted by
applicable law, thereafter bear interest (compounded monthly and payable
upon demand) at a rate which is 2% per annum in excess of the rate of
interest otherwise payable under this Agreement in respect of such
principal amount until such unpaid amount has been paid in full (whether
before or after judgment).
Section 3.03. General Provisions as to Payments. The Borrower
shall make each payment of interest on the Loans and each payment of fees
pursuant to Section 3.06 and Section 3.07 hereof not later than 1:00 p.m.
(New York City time) on the date when due, in funds immediately available
in New York City, to the Agent, for the account of the Lenders, at its
address referred to in Section 11.04 of this Agreement. Payments of
principal, whether at the stated repayment date, on the Termination Date,
by acceleration or by prepayment, shall be made in the same manner as
prescribed for payments of interest. If the date for any payment of
principal is extended by operation of law or otherwise, interest thereon
shall be payable for such extended time.
Section 3.04. Pro Rata Treatment and Payments. Each Borrowing
of Syndicated Loans by the Borrower hereunder, each payment (including each
prepayment) by the Borrower on account of principal or interest with
respect to Syndicated Loans or on account of fees hereunder, and any
reduction of the Aggregate Commitments hereunder shall be made pro rata
among the Lenders, in accordance with their respective Commitments. Each
payment (including each prepayment) by the Borrower on account of principal
or interest with respect to Competitive Loans shall be made pro rata among
the Lenders in accordance with the respective principal amounts of the
Competitive Loans extended by each Lender comprising a part of the
Borrowing as to which such payment is made. All payments (including
20
prepayments) to be made by the Borrower on account of principal, interest
and fees shall be made without set-off or counterclaim to the Agent, for
the account of the Lenders, at the Agent's office located in New York, New
York, in dollars and in immediately available funds. The Agent shall
distribute such payments to each Lender promptly on the day of the Agent's
receipt thereof by causing such Lender's portion of such payment to be
deposited in such account as may be designated by such Lender. If the
Agent does not distribute any Lender's portion of such payment by such
time, such Lender shall promptly notify the Agent of such fact, and shall
be entitled to recover such portion on demand from the Agent together with
interest thereon, for each day from the date on which such Lender notified
the Agent that such portion was not received by the Lender until the date
such portion is paid to such Lender, at the customary rate set by the Agent
for the correction of errors among banks.
Section 3.05. Computation of Interest. Interest on LIBOR Loans,
CD Loans and Fixed Rate Loans, and interest on ABR Loans based on the Base
CD Rate or the Federal Funds Effective Rate, shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed,
calculated as to each Loan from and including the first day thereof to the
date of payment thereof. Interest on ABR Loans based on the Prime Rate
shall be computed on the basis of a 365/366 day year and paid for the
actual number of days elapsed, calculated as to each Loan from and
including the first day thereof to the date of payment thereof.
Section 3.06. Facility Fee. The Borrower agrees to pay to the
Agent, for the account of each Lender, above and beyond and in addition to
interest as provided elsewhere in this Agreement, a facility fee in an
amount equal to the Facility Fee Percentage on such Lender's Commitment,
from the date of this Agreement to but not including the Termination Date,
payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing June 30, 1994, and computed on the basis
of a 365/366 day year on the actual number of days elapsed.
Section 3.07. Agent's Fees. The Borrower agrees to pay to the
Agent the fees according to the terms of the letter agreement dated March
10, 1994.
ARTICLE IV
CONDITIONS TO LOANS
Section 4.01. Conditions to Initial Loans. The obligation of
each Lender to make Loans on the date of the initial Borrowing(s) is
subject to the satisfaction of the following conditions:
(a) prior to and immediately after such Loans have been made, no
Default or Event of Default shall have occurred and be continuing;
(b) the representations and warranties of the Borrower contained
in this Agreement shall be true in all material respects on and as of
such date such Loans are made;
21
(c) receipt by the Agent, on behalf of each Lender, of a duly
executed Syndicated Note, in the principal amount of such Lender's
Commitment, each dated the Closing Date;
(d) receipt by the Agent, on behalf of each Lender, of a duly
executed Competitive Note, in a principal amount equal to the
Aggregate Commitments, each dated the Closing Date;
(e) receipt by the Agent, with sufficient copies for each
Lender, of a written opinion letter of John J. Moran, Assistant
Secretary and Senior Counsel of the Borrower, substantially in the
form of Exhibit E hereto, dated the Closing Date and covering such
additional matters relating to the transactions contemplated hereby as
the Required Lenders may reasonably request;
(f) receipt by the Agent, with sufficient copies for each
Lender, of a certificate signed by the chief accounting officer or
Treasurer of the Borrower and dated the Closing Date, to the effect
set forth in clauses (a) and (b) of this Article IV; and
(g) receipt by the Agent, with sufficient copies for each
Lender, of all documents as the Required Lenders may reasonably
request relating to the existence of the Borrower, the authority for
and the validity and enforceability of this Agreement and the Notes,
and any other matters relevant hereto, all in form and substance
satisfactory to the Required Lenders.
Section 4.02. Conditions to All Loans. The obligation of each
Lender to make Loans hereunder shall be subject to the following conditions
precedent. On the date of each Borrowing hereunder:
(a) The Agent shall have received a notice of such Borrowing as
required by Section 2.05(d) or Section 2.03, as applicable;
(b) in the case of a Borrowing of Competitive Loans, or a
Borrowing of Syndicated Loans which would increase the aggregate
principal amount of Syndicated Loans owing to the Lenders over the
aggregate principal amount of Syndicated Loans outstanding immediately
prior to the making of such Syndicated Loans, the representations and
warranties of Borrower contained herein shall be true and correct in
all material respects with the same effect as though made on and as of
such date; and in the case of a Borrowing of Syndicated Loans which
would not increase the aggregate principal amount of Syndicated Loans
owing to the Lenders over the aggregate principal amount of Syndicated
Loans outstanding immediately prior to the making of such Syndicated
Loans, the representations and warranties of Borrower contained
herein, other than those set forth in Section 5.04(b) and Section
5.05, shall be true and correct in all material respects with the same
effect as though made on and as of such date; and
(c) in the case of a Borrowing of Competitive Loans, or a
Borrowing of Syndicated Loans which would increase the aggregate
principal amount of Syndicated Loans owing to the Lenders over the
aggregate principal amount of Syndicated Loans outstanding immediately
prior to the making of such Syndicated Loans, the Borrower shall be in
22
compliance with all the terms and provisions contained herein on its
part to be observed or performed, and both at the time of and
immediately after such Borrowing no Default or Event of Default shall
have occurred and be continuing; and in the case of a Borrowing of
Syndicated Loans which would not increase the aggregate principal
amount of Syndicated Loans owing to the Lenders over the aggregate
principal amount of Syndicated Loans outstanding immediately prior to
the making of such Syndicated Loans, the Borrower shall be in
compliance with all the terms and provisions contained herein on its
part to be observed or performed, and both at the time of and
immediately after such Borrowing no Event of Default shall have
occurred and be continuing.
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the applicable
matters specified in paragraphs (b) and (c) of this Section 4.02. The
Agent and Lenders agree that for purposes of determining satisfaction of
the conditions precedent specified in paragraphs (b) and (c) above with
respect to Section 5.04(b) hereof, the Agent shall make such reasonable
determination in good faith.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
Section 5.01. Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under
the laws of Delaware, is duly licensed and duly qualified as a foreign
corporation in good standing in all the jurisdictions in which the
character of the property owned or leased or the nature of the business
conducted by it requires such licensing or qualification and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
Section 5.02. Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by the Borrower of
this Agreement and the Notes are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental body, agency
or official and do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of
incorporation or by-laws of the Borrower or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Borrower or
any of its property or result in the creation or imposition of any Lien on
any asset of the Borrower or any of its Subsidiaries.
Section 5.03. Binding Effect. This Agreement constitutes, and
each of the Notes, when executed and delivered in accordance with this
Agreement, will constitute, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and except
as enforceability thereof may be limited by equitable principles.
23
Section 5.04. Financial Information. (a) The consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of
December 31, 1993 and the related consolidated statement of income and
statement of changes in financial position for the fiscal year then ended,
reported on by Price Waterhouse and set forth in the Borrower's 1993 Annual
Report, which is incorporated by reference in the Borrower's 1993 Form
10-K, copies of which have been delivered to the Lenders, fairly present,
in conformity with generally accepted accounting principles, the
consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of operations
and changes in financial position for such period.
(b) Since December 31, 1993 there has been no material adverse
change in the business, financial position or results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
Section 5.05. Litigation. There is no action, suit or
proceeding pending against, or to the knowledge of the Borrower threatened
against or affecting, the Borrower or any of its Subsidiaries before any
court or arbitrator or any governmental body, agency or official in which
there is a reasonable possibility of an adverse decision where the damages
would exceed an amount in excess of fifteen percent (15%) of the
consolidated current assets of the Borrower and its Consolidated
Subsidiaries or which in any manner draws into question the validity or
enforceability of this Agreement or the Notes.
Section 5.06. Compliance with ERISA. Each member of the
Controlled Group has substantially fulfilled its obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan
and is in compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and has not incurred any liability to the
PBGC or a Plan under Title IV of ERISA which could reasonably be expected
to materially adversely affect the business, consolidated financial
position or consolidated results of operations of the Borrower and its
Consolidated Subsidiaries.
Section 5.07. Taxes. The United States Federal income tax
returns of the Borrower and its Subsidiaries have been examined and closed
through the fiscal year ended December 31, 1991. The Borrower and its
Subsidiaries have filed all United States Federal income tax returns and
all other material tax returns which are required to be filed by them and
have paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower or any Subsidiary, except for taxes and
assessments being contested in good faith by Borrower or any Subsidiary.
The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
Section 5.08. Subsidiaries. Each of the Borrower's corporate
Material Subsidiaries is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation,
is duly licensed and duly qualified as a foreign corporation in good
standing in all of the jurisdictions in which the character of the property
owned or leased or the nature of the business conducted by it requires such
licensing or qualification except in such jurisdictions where failure to be
24
so licensed or qualified could not materially adversely affect the
business, consolidated financial position or consolidated results of
operations of the Borrower and its Consolidated Subsidiaries, taken as a
whole, and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted. As of the date hereof, the Borrower has no Material
Subsidiaries other than as set forth in Exhibit F attached hereto and made
a part hereof.
Section 5.09. Not an Investment Company. The Borrower is not
(a) an "investment company" within the meaning of the Investment Company
Act of 1940, as amended, or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of
1935.
Section 5.10. Contractual Obligations. To the best knowledge of
the Borrower, neither the Borrower nor any of its Subsidiaries is subject
to or bound by any contractual obligations which could have a material
adverse effect on the financial condition or operations of the Borrower and
its Subsidiaries, taken as a whole.
Section 5.11. No Default. To the best knowledge of the
Borrower, no event has occurred and is continuing which constitutes (a) a
Default or an Event of Default under this Agreement, or (b) a default under
any other instrument for borrowed money in an aggregate principal amount in
excess of $10,000,000 binding upon the Borrower or any of its Subsidiaries
or under any material contract, agreement, instrument, judgment, decree,
order, statute, rule or regulation binding upon or affecting the Borrower
or any of its Subsidiaries or the assets of the Borrower or any of its
Subsidiaries.
Section 5.12. Compliance with Laws. To the best knowledge of
the Borrower, except to the extent that failure to comply could not
reasonably be expected to materially interfere with the conduct of the
business of the Borrower and its Subsidiaries, taken as a whole, the
Borrower and each of its Subsidiaries has complied with all applicable laws
with respect to: (i) any restrictions, specifications or other requirements
pertaining to its business and operations; (ii) the conduct of its
business; and (iii) the use, maintenance, and operation of the real and
personal properties owned or leased by it in the conduct of its business.
To the best knowledge of the Borrower, the Borrower and each of its
Subsidiaries is in compliance with all federal, state, local and foreign
environmental laws and regulations, including without limitation the
Federal Resource Conservation and Recovery Act, as amended, and the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended ("CERCLA"), their implementing regulations and all applicable state
and foreign hazardous waste laws and regulations, and has no liability,
whether fixed, unliquidated, absolute, contingent or otherwise, under any
such laws or regulations, including without limitation any liabilities for
any fines or penalties, or for investigation, removal or remedial expense
to effect compliance with or discharge any duty, obligation or claim under
any such laws or regulations, except where the failure to so comply or the
liability would not exceed an amount in excess of fifteen percent (15%) of
the consolidated current assets of the Borrower and its Consolidated
Subsidiaries; provided, however, in determining the amount of the
25
Borrower's liability under CERCLA, the Borrower's liability shall be
reduced by the amount which the Borrower reasonably determines will be paid
by other responsible parties who are jointly and severally liable with the
Borrower for such liability (such determination to take into consideration
the inability of such other responsible parties to pay the amount of such
reduction to the Borrower's liability as a result of such other responsible
parties' bankruptcy or insolvency).
Section 5.13. Title to Assets. To the best knowledge of the
Borrower, the Borrower and each of its Subsidiaries has good and marketable
title to all of its assets owned by it which are material to the operation
of its business, subject to no Lien or the claim of any third person except
for Liens permitted pursuant to Section 6.03 herein and excepting all
machinery, equipment and all other leasehold improvements by the Borrower
on the premises at the Borrower's Gwinner, North Dakota plant which are
located on real property leased from the Burlington Northern Railroad on a
lease terminable on thirty days prior notice by either party.
Section 5.14. Disclosure. No representation or warranty of the
Borrower contained in this Agreement or any other document, certificate or
written statement furnished to the Lenders pursuant hereto or in connection
herewith contains any untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements contained herein
or therein not misleading. There is no fact known to the Borrower which
materially adversely affects the business, operations, property, assets or
condition (financial or otherwise) of the Borrower and its Subsidiaries,
taken as a whole, which has not been disclosed herein or in such other
documents, certificates and statements furnished to the Lenders.
ARTICLE VI
COVENANTS
The Borrower agrees that, so long as any amount payable under any
Note remains unpaid, any Commitment exists hereunder, or any other amount
arising pursuant hereto remains unpaid:
Section 6.01. Minimum Consolidated Net Worth. The Borrower will
not permit its Consolidated Net Worth to at any time fall below an amount
equal to the sum of (a) $352,500,000, plus (b) twenty-five percent (25%) of
the consolidated net income of the Borrower and its Consolidated
Subsidiaries accrued subsequent to December 31, 1993, such Consolidated Net
Worth to be computed as of the end of each fiscal quarter of the Borrower.
In no event shall the amount of the Consolidated Net Worth required to be
maintained by the Borrower hereunder be reduced by the amount of any losses
incurred by the Borrower and its Consolidated Subsidiaries after December
31, 1993.
Section 6.02. Limitation on Consolidated Debt. The Borrower
will not, and will not permit any of its Consolidated Subsidiaries to,
incur any Debt if, after giving effect thereto, the ratio of the
consolidated Debt of the Borrower and its Consolidated Subsidiaries to the
sum of (i) the consolidated Debt of the Borrower and its Consolidated
Subsidiaries, plus (ii) the Consolidated Net Worth of the Borrower and its
Consolidated Subsidiaries, would exceed fifty-five percent (55%).
26
Section 6.03. Limitation on Liens. The Borrower shall not at
any time create or assume, and will not cause, suffer or permit a
Subsidiary to create or assume, any Debt secured by any Lien on the
property of the Borrower or any of its Subsidiaries; provided, however,
that the foregoing covenants shall not be applicable to the following:
(a) Liens in existence as of the Closing Date, as described in
Exhibit G attached hereto and made a part hereof;
(b) (i) any Lien on any property hereafter acquired or
constructed by the Borrower or a Subsidiary and created
contemporaneously with, or within 180 days after, such acquisition or
completion of construction and commencement of full operation of such
property, whichever is later, to secure or provide for the payment of
all or any part of the purchase price or construction cost of such
property; or (ii) the acquisition of property subject to any Lien upon
such property existing at the time of acquisition thereof, whether or
not assumed by the Borrower or such Subsidiary; or (iii) any Lien
existing on the property or on the outstanding shares or indebtedness
of a corporation at the time such corporation shall become a
Subsidiary; or (iv) Liens on the property of a corporation existing at
the time such corporation is merged into or consolidated with the
Borrower or a Subsidiary or at the time of a sale, lease or other
disposition of the properties of a corporation or firm as an entirety
or substantially as an entirety to the Borrower or a Subsidiary;
provided, however, that any such Lien does not apply to property owned
by the Borrower or such Subsidiary prior to such event or to property
thereafter acquired other than (x) additions to the property acquired
pursuant to such event or (y) other property which, together with the
property acquired pursuant to such event, is part of a single
construction or development program;
(c) Liens incurred to purchase equipment or make capital
expenditures in the ordinary course of business of the Borrower or a
Subsidiary;
(d) other Liens on property of the Borrower, provided that, at
the time of or prior to imposition of each Lien, the Borrower makes
effective provision whereby all obligations of the Borrower to the
Lenders pursuant to this Agreement and the Notes will be secured by
such Lien equally and ratably with any and all other Debt secured by
the same property or assets;
(e) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien
permitted by this Section; provided, however, that the principal
amount of Debt secured thereby shall not exceed the principal amount
outstanding immediately prior to the time of such extension, renewal
or replacement, and that such extension, renewal or replacement shall
be limited to the property (or property which, in the ordinary course
of business of the Borrower or such Subsidiary, replaces the original
property) which secured the Lien so extended, renewed or replaced and
additions to such property;
27
(f) Liens of the United States or a State to secure partial,
progress or other advance payments pursuant to a contract or statute;
provided, however, that the book value of all assets secured by all
such Liens does not at any time exceed $10,000,000; and
(g) other Liens that do not, in the aggregate outstanding at any
time, exceed 15% of the Borrower's Consolidated Net Worth.
Section 6.04. Restrictions on Sales, Mergers and Consolidations.
The Borrower will not, and will cause each of its Material Subsidiaries not
to, (a) in one transaction or in a series of transactions, consolidate or
merge with any other Person, or sell or otherwise dispose of all or
substantially all of its properties or business or any of its divisions or
businesses that, if incorporated separately, would constitute a Material
Subsidiary; (b) liquidate, wind up or dissolve (or suffer any liquidation
or dissolution); or (c) convey, sell or otherwise dispose of the capital
stock of any Material Subsidiary, except that: (i) the Borrower may
transfer assets to any of its Subsidiaries unless, after giving effect to
such transfer, the aggregate book value all of the Borrower's assets
transfered during the term of this Agreement to any of its Subsidiaries
would exceed 15% of the Borrower's assets; (ii) Material Subsidiaries of
the Borrower may merge with and into, or sell or transfer assets to, other
Subsidiaries of the Borrower, and Material Subsidiaries of the Borrower may
merge with and into the Borrower; and (iii) the Borrower may merge with any
other Person, or any Material Subsidiary of the Borrower may consolidate or
merge with any other Person; provided that, in the case of any merger of
the Borrower, the Borrower is the surviving corporation in such merger,
and, in the case of any merger or consolidation of a Material Subsidiary of
the Borrower, the surviving corporation in such merger or consolidation is
or becomes as a result thereof a Material Subsidiary of the Borrower, and
immediately following any such consolidation or merger, and after giving
effect thereto, the Borrower could incur an additional $1 of Debt and
remain in compliance with the provisions of the other Sections of this
Article VI; provided further that the foregoing restrictions contained in
this Section 6.04 shall not apply to the initial public offering of shares
of common stock of Clark Automotive Products Corporation, a Michigan
corporation.
Section 6.05. Information. The Borrower will deliver to the
Agent, with sufficient copies for each Lender:
(a) as soon as available and in any event within 120 days after
the end of each fiscal year of the Borrower, a copy of the Annual
Report on Form 10-K, other than the exhibits thereto (unless such
exhibits are specifically requested by the Agent), required to be
filed by the Borrower with the Securities and Exchange Commission
pursuant to, and meeting the requirements of, the Securities Exchange
Act of 1934, as amended, for the previous fiscal year, with the
financial statements of the Borrower and its Consolidated Subsidiaries
contained therein reported on in a manner acceptable to the Securities
and Exchange Commission by Price Waterhouse or other independent
public accountants of nationally recognized standing and with the
financial statements of the Joint Venture Company contained therein
reported on by independent public accountants of recognized standing
in accordance with generally accepted accounting principles applicable
in the jurisdiction in which the Joint Venture Company is organized or
28
in the jurisdiction in which the books and records of the Joint
Venture Company are maintained;
(b) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, a copy of the Quarterly Report on Form 10-Q, other than the
exhibits thereto (unless such exhibits are specifically requested by
the Agent), required to be filed by the Borrower with the Securities
and Exchange Commission pursuant to, and meeting the requirements of,
the Securities Exchange Act of 1934, as amended, for such quarter,
with the financial statements contained therein certified (subject to
normal year-end adjustments) as to fairness of presentation, generally
accepted accounting principals and consistency by the chief accounting
officer of the Borrower;
(c) forthwith upon the occurrence of any Default or Event of
Default, a certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth the details thereof
and the action which the Borrower is taking or proposes to take with
respect thereto;
(d) promptly upon the mailing thereof to the stockholders of the
Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(e) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and annual, quarterly or
other reports which the Borrower shall have filed with the Securities
and Exchange Commission;
(f) if and when any member of the Controlled Group (1) gives or
is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan (other than a
Plan which is a multiemployer plan as defined in Section 4001(a)(3) of
ERISA) has given or is required to give notice of any such reportable
event, or (2) receives from the plan administrator of any Plan which
is a multiemployer plan, as defined in Section 4001(a)(3) of ERISA,
notice of any such reportable event which the plan administrator has
given or is required to give of such reportable event to the PBGC, a
copy of the notice of such reportable event given or required to be
given to the PBGC;
(g) if at any time the value of all "margin stock" (as defined
in Regulation U of the Board of Governors of the Federal Reserve
System) owned by the Borrower or any Consolidated Subsidiary exceeds
25% of the value of the assets of the Borrower or such Consolidated
Subsidiary, as reasonably determined by the Borrower, prompt notice of
such fact and, promptly upon the request of any Lender, a duly
completed statement of purpose on Form U-1 for each Lender together
with such other information or documents as any Lender may be required
to obtain under said Regulation U in connection with this Agreement;
29
(h) within five days following the delivery of each set of
financial statements referred to in clauses (a) and (b) above, a
certificate of the chief financial officer or the chief accounting
officer of the Borrower setting forth in reasonable detail the
calculations required to establish whether the Borrower and its
Consolidated Subsidiaries were in compliance with the requirements of
Section 6.01 and Section 6.02 on the date of such financial
statements; and
(i) from time to time such additional information regarding the
financial position or business of the Borrower, any Subsidiary or the
Joint Venture Company as any Lender may reasonably request.
Section 6.06. Payment of Taxes and Claims. The Borrower will
pay, and will cause each of its Subsidiaries to pay, all material taxes,
assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its franchises, business,
income or property before any penalty or interest accrues thereon, and all
claims (including, without limitation, claims for labor, services,
materials and supplies) for sums which have become due and payable and
which by law have or may become a Lien, upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto, provided no such tax, assessment, charge or claim need be
paid if it is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted, and if the Borrower or such
Subsidiary shall provide a reserve or other appropriate provision, if any,
as shall be required in conformity with generally accepted accounting
principles.
Section 6.07. Maintenance of Corporate Existence; Properties;
Insurance. Except as permitted by Section 6.04 herein, the Borrower will,
and will cause each of the Material Subsidiaries to, keep in full force and
effect its legal existence. The Borrower will maintain, and will cause
each of its Subsidiaries to maintain, in good repair, working order and
condition all material properties used or useful in its business and from
time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof. The Borrower will maintain, and will
cause each of its Subsidiaries to maintain, insurance (including
self-insurance) of such types, in such amounts and covering such risks as
is consistent with prudent business practice, and the Borrower shall have
and maintain, and shall cause each of its Subsidiaries to have and
maintain, at all times fidelity bonds and all workers' compensation or
similar insurance as may be required by law. All expenses of insurance
shall be prepaid by the Borrower or its Subsidiaries, as the case may be,
or paid under installment plans provided by the broker or carriers. The
Borrower will promptly notify the Agent if any policy of insurance is
cancelled and is not immediately replaced with similar coverage, or if
self-insurance is substituted for any policy of insurance other than that
which may be placed with Celfor Bermuda.
Section 6.08. Inspection; Books and Records. The Borrower will
permit, and will cause each of its Subsidiaries to permit, any authorized
representatives designated by any Lender to visit and inspect any of the
properties of the Borrower or any of its Subsidiaries, including its
financial books and records, and to discuss its affairs, finances and
30
accounts with its officers and independent public accountants, all upon
reasonable notice and at such times during normal business hours and as
often as may be reasonably requested. Each Lender hereby agrees that it
will keep confidential any financial reports and other information
previously or from time to time supplied to it by the Borrower hereunder,
to the extent that such information is not and does not become publicly
available, and will use such financial reports and other information only
in connection with the transactions contemplated by this Agreement and for
no other purpose, provided that nothing herein shall affect the disclosure
of any such information (i) by any Lender to any other Lender, (ii) to the
extent required by law (including statute, rule, regulation or judicial
process), (iii) to counsel for any Lender or to their respective
accountants, each of whom shall also be bound by the confidentiality
obligations set forth herein, (iv) to bank examiners and auditors and
appropriate government examining authorities, (v) to the extent necessary
or appropriate in connection with any litigation to which any Lender is a
party, or (vi) subject to the provisions of Sections 8.01, 8.04 and 8.05
hereof, by any Lender to any actual or prospective participant or assignee
of any part of such Lender's Commitment or any Loan owing to or Note held
by such Lender, a determination by a Lender as to the application of the
circumstances described in the foregoing clauses (i)-(v) being conclusive
if made in good faith. Each Lender hereby agrees that it shall give the
Borrower notice prior to disclosure of any such information pursuant to
clause (ii) and clause (v) hereof, to the extent permitted under applicable
law. The Borrower will, and will cause each of its Subsidiaries to, at all
times maintain adequate financial books and records in accordance with
generally accepted accounting principles, as in effect from time to time,
consistently applied.
Section 6.09. Compliance with Laws. The Borrower will comply,
and will cause each of its Subsidiaries to comply, with the requirements of
all applicable laws, rules, regulations and orders of any governmental
authority, including without limitation all federal, state, local and
foreign environmental laws and regulations, noncompliance with which could
materially adversely affect the business, properties, assets, operations or
condition (financial or otherwise) of the Borrower and its Subsidiaries,
taken as a whole, except for those which are being contested in good faith
by appropriate proceedings promptly instituted and diligently conducted and
for which such reserve or other appropriate provision, if any, as shall be
required in conformity with generally accepted accounting principles shall
have been made.
Section 6.10. Margin Stock. Except to the extent the Loans are
exempted pursuant to Section 221.6 of Regulation U, none of the proceeds of
the Loans will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of purchasing or carrying any "margin
stock" within the meaning of Regulation U.
ARTICLE VII
DEFAULTS
Section 7.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be
continuing:
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(a) the Borrower shall fail to pay principal on any Note within
5 days of when due or interest on any Note or any other amount payable
hereunder within 10 days of when due;
(b) the Borrower shall fail to observe or perform any covenant
contained in Section 6.01, Section 6.03, or Section 6.04;
(c) the Borrower shall fail to observe or perform its covenant
contained in Section 6.02 hereof for 10 days after the later of the
commencement of such failure or notice to the Borrower thereof;
(d) the Borrower shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those covered by
clauses (a), (b) or (c) above) for 30 days after the later of the
commencement of such failure or notice to the Borrower thereof;
(e) any representation, warranty, certification or statement
made or deemed to be made pursuant to Section 4.02 hereof by the
Borrower in this Agreement or in any certificate, financial statement
or other document delivered pursuant to this Agreement shall prove to
have been incorrect when made in any material respect;
(f) the Borrower or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it for such
purpose, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become
due, or shall take any corporate action to authorize any of the
foregoing;
(g) an involuntary case or other proceeding shall be commenced
against the Borrower or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property for such purpose, and such involuntary case or other
proceeding shall have been neither dismissed nor stayed for a period
of 60 days; or an order for relief shall be entered against the
Borrower or any Material Subsidiary under the Federal bankruptcy laws
as now or hereafter in effect;
(h) any event or condition shall occur which could result in the
acceleration of the maturity of any Debt of the Borrower or any
Material Subsidiary (other than the Notes) in an aggregate outstanding
principal amount in excess of $10,000,000;
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(i)(1) A "reportable event" (as defined in Section 4043 of
ERISA, other than a "reportable event" with respect to which the PBGC
has waived the 30-day notice requirement) shall have occurred with
respect to any Plan and, on the basis of such reportable event, there
are reasonable grounds under Section 4042(a)(1), (2) or (3) of ERISA
for the termination of such Plan by the PBGC or for the appointment by
the appropriate United States District Court of a trustee to
administer such Plan; (2) a trustee shall be appointed by a United
States district court to administer any Plan; or (3) the PBGC shall
institute proceedings to terminate any Plan; and the occurrence of any
of the events described in clauses (1), (2) or (3) could reasonably be
expected to result in a liability to the Borrower or any member of the
Controlled Group which could reasonably be expected to materially
adversely affect the business, consolidated financial position or
consolidated results of operations of the Borrower and its
Consolidated Subsidiaries;
(j) a Change in Control Default, as defined in Section 7.02
below, shall have occurred; or
(k) judgments or orders for the payment of money in an aggregate
amount in excess of $10,000,000 shall be rendered against the Borrower
and continue unsatisfied for a period of 30 days, excluding judgments
or decrees which have been vacated, discharged, stayed or bonded
pending appeal within 30 days from the date of entry thereof and
judgments to the extent covered by insurance;
then, and in every such event, the Agent may, and at the direction of the
Required Lenders will, by notice to the Borrower, terminate the Commitments
and the Commitments shall thereupon automatically terminate, and the Agent
may, and at the direction of the Required Lenders will, by notice to the
Borrower, declare the Notes (together with accrued interest thereon and all
other amounts owing pursuant hereto) to be, and the Notes and all such
other amounts shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; provided, that in the case of any of the
Events of Default specified in clauses (f) or (g) above with respect to the
Borrower or a Material Subsidiary, without any notice to the Borrower or
any other act by the Agent or any Lender, the Commitments shall
automatically terminate and the Notes (together with accrued interest
thereon and all other amounts owing pursuant hereto) shall become
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.
If at any time after acceleration of the maturity of the Notes
and all other amounts owing pursuant hereto as provided above, the Borrower
shall pay all arrears of interest and all payments on account of principal
of the Loans which shall have become due otherwise than by acceleration
(with interest on principal and, to the extent permitted by law, on overdue
interest, at the rates specified in this Agreement) and all Events of
Default and Defaults (other than nonpayment of principal of and accrued
interest on the Notes, and other obligations due and payable solely by
virtue of acceleration) shall be remedied or waived pursuant to Section
11.08, then by written notice to the Borrower, the Required Lenders may
elect, in the sole discretion of such Required Lenders, to rescind and
33
annul the acceleration and its consequences; but such action shall not
affect any subsequent Default or Event of Default or impair any right or
remedy consequent thereon. The provisions of the preceding sentence are
intended merely to bind the Lenders to a decision which may be made at the
election of the Required Lenders; they are not intended to benefit the
Borrower and do not give the Borrower the right to require the Lenders to
rescind or annul any acceleration hereunder, even if the conditions set
forth herein are met.
Section 7.02. Change in Control Default. (a) For purposes of
Section 7.01(j) hereof, a "Change in Control Default" shall occur on any
date following a Change of Control of the Borrower on which any of the
following shall occur: (i) Moody's rates public senior unsecured long-term
debt of the Borrower at Ba2 or lower or S&P rates public senior unsecured
long-term debt of the Borrower at BB or lower; (ii) in response to a
request by the Borrower in accordance with the provisions of subsection (b)
of this Section 7.02, Moody's has issued a private letter rating of the
Notes at Ba2 or lower or S&P has issued a private letter rating of the
Notes at BB or lower; or (iii) 60 days after the date on which Required
Lenders requested that the Borrower obtain a private letter rating of the
Notes in accordance with the provisions of subsection (b) of this Section
7.02, any such private letter rating shall not have been issued by the
rating agency or agencies from whom such private letter rating was sought,
unless public senior unsecured long-term debt of the Borrower shall then be
rated better than Ba2 by Moody's or BB by S&P.
(b) If at any time on or after a Change of Control of the
Borrower, the Borrower does not have public senior unsecured long-term debt
outstanding that is publicly rated by either Moody's or S&P, the Borrower
will notify the Agent. Upon the request of Required Lenders, the Borrower
will promptly, and in any event within one Business Day after receiving
such request, seek and thereafter diligently attempt to obtain from either
of Moody's or S&P a private letter rating of the Notes, and, promptly, and
in any event within one Business Day, after receiving such private letter
rating, deliver a copy thereof to the Agent. If the Borrower does not
obtain a private letter rating of the Notes from either Moody's or S&P
within 60 days after the Required Lenders shall have requested the Borrower
to obtain a private letter rating of the Notes in accordance with this
subsection (b), the Borrower will promptly, and in any event within one
Business Day, after the end of such 60-day period notify the Agent of such
failure. If the Borrower shall obtain a private letter rating of the Notes
in accordance with this subsection (b), the Required Lenders may at any
time thereafter (but not more often than once in each period of three
consecutive months) request the Borrower to obtain a new private letter
rating of the Notes in accordance with this subsection (b).
(c) For purposes of this Section 7.02, "Change of Control" of
the Borrower means either: (i) that any Person or group, as such term is
defined pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, other than the employee stock ownership plan and trust established
pursuant to the Clark Equipment Company Employee Stock Ownership Plan and
the Clark Equipment Company Leveraged Employee Stock Ownership Trust, each
adopted effective July 1, 1985, as amended from time to time, acquires
ownership, direct, indirect or beneficial, of more than fifty percent (50%)
of the outstanding voting capital stock of the Borrower; or (ii) at any
34
time after the date of this Agreement, less than fifty percent (50%) of the
members of the Board of Directors of the Borrower are persons who either
are members of the Board of Directors of the Borrower as of the date hereof
or who were recommended for election to succeed such members of the Board
of Directors of the Borrower by a majority of such members of the Board of
Directors of the Borrower.
ARTICLE VIII
ASSIGNMENTS AND PARTICIPATIONS
Section 8.01. Assignment. (a) Each Lender may assign to one or
more institutions all or a portion of its interests, rights and obligations
under this Agreement (including, without limitation, all or a portion of
such Lender's Commitment or the Loans and the Notes held by it); provided,
however, that (i) any such assignment, other than an assignment to another
Lender which does not result in any one Lender's Commitment exceeding
thirty percent (30%) of the Aggregate Commitments hereunder, may be made
only with prior written consent of the Borrower, which shall not be
unreasonably withheld, (ii) any such assignment shall be pursuant to an
assignment and acceptance in the form attached hereto as Exhibit H and made
a part hereof (an "Assignment and Acceptance"); (iii) each such assignment
shall be of a constant, and not a varying, percentage of the assigning
Lender's rights and obligations under this Agreement and shall be in a
minimum amount of $2,500,000, or, if less, the aggregate amount of the
assigning Lender's rights and obligations, (iv) the parties to each such
assignment shall execute and deliver to the Agent, for recording in the
Register, as defined in Section 8.02 hereof, an Assignment and Acceptance,
together with the Note(s) subject to such assignment and a processing and
recordation fee of $2,000, (v) each such assignee, if it is not already a
Lender, must execute and deliver to the Borrower, prior to the effective
date of the assignment or receipt of any non-public information supplied by
the Borrower or the Lenders to the assignee, a confidentiality agreement in
the form of Exhibit I attached hereto and made a part hereof, (vi) each
such assignee, if it is not already a Lender, must complete and deliver to
the Agent an Administrative Questionnaire, and (vii) the parties to each
such assignment shall comply with all of the provisions of Section 8.06
hereof. Upon acceptance and recording pursuant to Section 8.03, from and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five Business Days after the execution
thereof (except as otherwise agreed by the assignor, the assignee and the
Agent), (x) the assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the assigning Lender thereunder
shall, to the extent of the interest assigned by such Lender, be released
from its obligations under this Agreement other than its obligation to keep
certain information confidential as provided in Section 6.08 (and, in the
case of an Assignment and Acceptance covering all of the remaining portion
of an assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto, but shall continue to be entitled
to the benefits of Section 9.04, Section 11.02, Section 11.06 and Section
11.15, to the extent that any event or occurrence giving rise to the need
for such benefits arose or accrued prior to the effective date of such
Assignment and Acceptance, as well as to any interest and fees accrued for
its account but not yet paid).
35
Notwithstanding the foregoing, any Lender assigning rights and
obligations under this Agreement may retain any Competitive Loans made by
it outstanding at such time and in such case shall retain its rights
hereunder in respect of any Competitive Loans so retained until such
Competitive Loans have been repaid in full in accordance with this
Agreement.
(b) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder shall be deemed
to confirm as follows: (i) such assigning Lender warrants that it is the
legal and beneficial owner of the interest being assigned thereby free and
clear of any adverse claim and that its Commitment and the outstanding
balances of its Loans, in each case without giving effect to assignments
thereof which have not become effective, are as set forth in such
Assignment and Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representa-
tions made in or in connection with this Agreement, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of
this Agreement, any other loan document or any other instrument or document
furnished pursuant hereto, or the financial condition of the Borrower or
any Subsidiary thereof or the performance or observance by the Borrower or
any Subsidiary thereof of any of its obligations under this Agreement, any
other loan document or any other instrument or document furnished pursuant
hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with
copies of the most recent financial statements delivered pursuant to
Section 6.05 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (vi) such assignee appoints and authorizes the
Agent to take such action as Agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their
terms all the obligations which by the terms of this Agreement are required
to be performed by it as a Lender.
(c) Any Assignment and Acceptance by any Lender shall be made in
compliance with the terms of this Article VIII. Notwithstanding this
requirement, any Lender may, at any time, without the consent of the
Borrower, pledge all or any portion of its rights under this Agreement and
its Notes to a Federal Reserve Bank; provided, however, that no such
assignment shall release the transferor Lender from its obligations
hereunder.
Section 8.02. Register. The Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the
recordation of the name and address of, and the Commitment of and the
principal amount of the Loans owing to, each Lender from time to time (the
"Register"). The entries in the Register as to the name and address of
36
each Lender shall be conclusive in the absence of manifest error and the
Borrower, the Lenders and the Agent may treat each person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement; provided, however, that failure to make any such entry or
recordation shall not affect any of the obligations of the Borrower under
this Agreement or the Notes. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
Section 8.03. Recordation; Replacement Notes. Upon its receipt
of an Assignment and Acceptance executed by an assigning Lender and an
assignee, an Administrative Questionnaire completed for the assignee
(unless the assignee shall already be a Lender hereunder), the processing
and recording fee referred to in Section 8.01(a) above, the Note or Notes
subject to such Assignment and, if required, the prior written consent of
the Borrower to such assignment, the Agent shall (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Lenders and the
Borrower. Within five Business Days after receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Agent a new
Note or Notes to the order of such assignee in an amount equal to the
aggregate amount of the Commitment or the aggregate principal amount of the
Loans assumed by it pursuant to such Assignment and Acceptance, as the case
may be, and, if the assigning Lender has retained any portion of such
Lender's Commitment or any Loans hereunder, a new Note or Notes to the
order of the assigning Lender in an amount equal to the aggregate amount of
the Commitment or the aggregate principal amount of the Loans, as the case
may be, retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in the form of Exhibit B
or Exhibit C hereto, as the case may be. The Agent shall promptly return
cancelled Notes to the Borrower upon its receipt of new Notes.
Section 8.04. Participations. Any Lender may at any time sell
to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, the Note or Notes held by such
Lender or any other interest of such Lender hereunder, provided, however,
that (i) each such sale of a participating interest shall be in an amount
equal to or greater than $100,000, (ii) each Lender must retain all rights
of approval hereunder, without the consent of any participant, except
rights of approval with respect to amendments, modifications or waivers
relating to the interest rates borne by the Loans, the amount of fees
payable hereunder as applicable to such participant, the amount of the
Commitments, the maturity dates of the Loans, and the dates when interest
and fees are required to be paid hereunder, and (iii) each such participant
must execute and deliver to the Borrower, prior to the earlier of
effectiveness of such sale of a participating interest or receipt of any
non-public information supplied by the Borrower or the Lenders to the
participant, a confidentiality agreement in the form of Exhibit I attached
hereto and made a part hereof. In the event of any such sale by a Lender
of participating interests to a Participant, such Lender's obligations
under this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain
the holder of such Note or Notes for all purposes under this Agreement, and
37
the Borrower shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement.
The Borrower agrees that each participant will be entitled to the benefits
of Section 9.01, Section 9.04, Section 11.02 and Section 11.15 hereof with
respect to its participation in the Loans or the Notes or under this
Agreement.
Section 8.05. Disclosure of Information. Any Lender may, in
connection with any assignment or proposed assignment, or any sale or
proposed sale of a participating interest, pursuant to this Article VIII,
disclose to the assignee or prospective assignee or to the participant or
prospective participant any information, including without limitation any
non-public information, relating to the Borrower furnished to the Lender by
or on behalf of the Borrower; provided, however, that prior to any
disclosure of any non-public information relating to the Borrower the
recipient thereof shall execute and deliver to the Borrower a
confidentiality agreement in the form of Exhibit I attached hereto and made
a part hereof or in such other form as may be approved by the Borrower and
the Agent, which approval shall not be unreasonably withheld.
Section 8.06. Tax Withholding. Each Lender agrees that if,
pursuant to this Article VIII, any interest of such Lender in this
Agreement or in its Note or Notes is assigned to any assignee which is
organized under the laws of any jurisdiction other than the United States
or any State thereof (including the District of Columbia), such Lender
shall cause such assignee, concurrently with the effectiveness of such
assignment, (a) to represent to the Borrower that under applicable law and
treaties no taxes will be required to be withheld by the Borrower with
respect to any payments to be made to such assignee in respect of the Note
or Notes, (b) to furnish to the Borrower either United States Internal
Revenue Service Form 4224 or United States Internal Revenue Service Form
1001 (wherein such assignee claims entitlement to complete exemption from
United States federal withholding tax on all interest payments under the
Note or Notes) and (c) to agree to provide (to the extent permissible under
current law) to the Borrower a new Form 4224 or Form 1001 upon the
expiration or obsolescence of any previously delivered form and comparable
statements in accordance with applicable United States laws and regulations
and amendments duly executed and completed by such assignee, and to comply
from time to time with all applicable United States laws and regulations
with regard to such withholding tax exemption. In the event any Lender
fails to fulfill any of its obligations under this Section, Borrower may
replace such Lender pursuant to the terms and conditions set forth in
Section 9.05.
ARTICLE IX
CHANGE IN CIRCUMSTANCES AFFECTING LOANS
Section 9.01. Capital Adequacy.
(a) If any Lender shall have determined that the applicability
of any law, rule, regulation or guideline adopted pursuant to or arising
out of the July 1988 report of the Basle Committee on Banking Regulations
and Supervisory Practices entitled "International Convergence of Capital
Measurement and Capital Standards," or the adoption after the date hereof
38
of any other law, rule, regulation or guideline regarding capital adequacy,
or any change in any of the foregoing, or in the interpretation or
administration of any of the foregoing by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any lending office
of such Lender) or any Lender's holding company with any request or
directive regarding capital adequacy (whether or not having the force of
law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Lender's capital or
on the capital of such Lender's holding company, if any, as a consequence
of its obligations hereunder, and under similar agreements with its other
customers, to a level below that which such Lender or such Lender's holding
company could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's policies and the policies of such
Lender's holding company with respect to capital adequacy) by an amount
deemed by such Lender to be material, such Lender shall notify the Borrower
as soon as practicable of any such determination and thereupon the Borrower
shall pay to such Lender, on demand, such additional amount or amounts as
will compensate such Lender or such Lender's holding company for any such
reduction suffered. In determining such additional amounts, each Lender
will act reasonably and in good faith and will use averaging and
attribution methods which are reasonable.
(b) In the event that any amounts are owing by the Borrower to
any Lender pursuant to subsection (a) above, such Lender shall deliver to
the Borrower a statement explaining the basis upon which such amounts have
been determined to be owing, which statement shall be conclusive and
binding absent manifest error.
(c) Failure on the part of any Lender to demand compensation for
any reduction in return on capital with respect to any Interest Period
shall not constitute a waiver of such Lender's rights to demand
compensation for any reduction in return on capital in such Interest Period
or in any other Interest Period. The protection of this Section shall be
available to each Lender regardless of any possible contention of
invalidity or inapplicability of the law, regulation or condition which
shall have been imposed.
Section 9.02. Illegality of LIBOR Loans. (a) Notwithstanding
any other provisions herein, if any Lender reasonably determines (which
determination shall be conclusive and binding in the absence of manifest
error) that it has become unlawful, as a result of any law, treaty, rule,
regulation, or determination of a court or other governmental authority, or
any change therein, or in the interpretation or application thereof,
applicable to it, or for any other reason, for such Lender to make or
maintain LIBOR Loans, (an "Illegality"), the obligation of such Lender to
make or maintain such Loans shall, upon the happening of such event,
forthwith be suspended for the period of the Illegality. In such event,
such Lender shall give notice of such determination to the Borrower and to
the Agent, the Borrower shall promptly on demand by such Lender repay such
Lender's LIBOR Loans outstanding and reborrow any such LIBOR Syndicated
Loans as either ABR Loans or CD Loans, at the Borrower's election, and all
Syndicated Loans thereafter made by such Lender during the period of the
Illegality shall be ABR Loans or CD Loans. If any Illegality results in
39
payment of a LIBOR Loan other than on the last day of the Interest Period
applicable thereto, the Borrower shall pay to such Lender, on demand,
one-half of any amounts owing pursuant to Section 11.02(b) hereof.
(b) For purposes of subsection (a), a notice to the Borrower by
any Lender or Participant shall be effective, if lawful, on the last day of
the then-current Interest Period; in all other cases, such notice shall be
effective on the date of receipt by the Borrower.
(c) If an Illegality occurs with respect to a Lender, prior to
giving notice pursuant to (a) above, the affected Lender shall make all
reasonable efforts (which shall not require the Lender to incur a loss or
otherwise suffer any disadvantage) to make within 30 days an assignment of
its rights and delegation and transfer of its obligations hereunder to
another of its offices, branches or affiliates for the purpose of causing
such Illegality to cease to exist so long as such assignment and delegation
will not create another Illegality and the Lender shall be permitted under
applicable law to continue to hold LIBOR Loans pending such assignment and
delegation.
Section 9.03. Unavailability of LIBOR Loans or CD Loans;
Interest Rate Unascertainable. (a) Notwithstanding any other provisions
herein, if the Agent reasonably determines (which determination shall be
conclusive and binding in the absence of manifest error) that by reason of
circumstances affecting the Agent, the interbank Eurodollar market or the
position of the Agent in such market, adequate and reasonable means do not
exist for ascertaining the LIBOR Rate, then the Agent shall give notice of
such determination to the Borrower. From and after the date of receipt by
the Borrower of such notice, all Syndicated Loans shall be made as ABR
Loans or CD Loans, and the Borrower shall not request, and the Lenders
shall not offer to make, Competitive Loans which are LIBOR Competitive
Loans.
(b) Notwithstanding any other provisions herein, if the Agent
reasonably determines (which determination shall be conclusive and binding
in the absence of manifest error) that the Adjusted CD Rate cannot be
determined for any reason, including, without limitation, the inability of
the Agent to obtain sufficient bids in accordance with the terms of the
definition of Fixed Certificate of Deposit Rate, then the Agent shall give
notice of such determination to the Borrower. From and after the date of
receipt by the Borrower of such notice, all Syndicated Loans shall be made
as ABR Loans or LIBOR Syndicated Loans.
(c) Notwithstanding any other provisions herein, if any Lender
reasonably determines (which determination shall be conclusive and binding
absent manifest error) that the LIBOR Rate shall not represent the
effective pricing to that Lender for dollar deposits of comparable amounts
being loaned by that Lender for the relevant period, or that the Adjusted
CD Rate will not adequately and fairly reflect the cost to that Lender of
making or maintaining CD Loans of comparable amounts for the relevant
period, then such Lender shall give notice of such determination to the
Borrower, and with respect to any such LIBOR Loans or CD Loans, as the case
may be, (i) the Borrower shall promptly on demand by such Lender repay such
outstanding LIBOR Loans or CD Loans, as the case may be, and (ii) all Loans
thereafter made by such Lender shall, at such Lender's option, be of a Type
40
other than the Type subject to the foregoing determination, until such time
that the Lender reasonably determines (which determination shall be
conclusive and binding absent manifest error) that the LIBOR Rate
represents effective pricing to that Lender for dollar deposits of
comparable amounts being loaned by that Lender for the relevant period, or
that the Adjusted CD Rate adequately and fairly reflects the cost to that
Lender of making and maintaining CD Loans of comparable amounts for the
relevent period, as the case may be. If any such determination results in
payment of a LIBOR Loan or a CD Loan other than on the last day of the
Interest Period applicable thereto, the Lender shall be responsible for any
amounts owing pursuant to Section 11.02(b) hereof.
Section 9.04. Reserve Requirements; Taxes. (a) The cost to the
Lenders of making or maintaining the Loans may fluctuate as a result of
imposition of, or changes in, the reserve requirements promulgated by the
Board of Governors of the Federal Reserve System, including without
limitation reserve requirements applicable to "Eurocurrency liabilities"
pursuant to Regulation D or any other then applicable regulation of the
Board of Governors which prescribes reserve requirements applicable to
"Eurocurrency liabilities" as presently defined in Regulation D.
Accordingly, the Borrower shall pay to any Lender, on demand, such
additional amount or amounts as will compensate it for the effect of such
reserve requirements (other than as a result of any change by way of
imposition or increase of reserve requirements, in the case of CD Loans,
included in Statutory Reserves) to the extent actually incurred by such
Lender as determined by such Lender pursuant to the next sentence hereof,
which determination shall be conclusive absent manifest error. Any amount
payable by the Borrower to any Lender pursuant to this Section 9.04(a) with
respect to LIBOR Loans shall be determined by multiplying (i) the aggregate
amount actually incurred by such Lender as a result of such reserve
requirements by (ii) a fraction, the numerator of which shall be the
aggregate amount of such Lender's LIBOR Loans then outstanding, and the
denominator of which shall be the then aggregate Eurocurrency liabilities
of such Lender.
(b) Notwithstanding any other provision herein, if after the
date of this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof (whether or not
having the force of law) shall change the basis of taxation of payments to
any Lender of the principal of or interest on any of such Lender's Loans or
any other amounts payable hereunder (other than taxes imposed on the
overall net income of such Lender) or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, such
Lender or shall impose on such Lender or the London interbank market any
other condition affecting this Agreement or such Lender's Loans, and the
result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining any Loan or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal,
interest or otherwise) in respect thereof by an amount deemed by such
Lender to be material, then such additional amount or amounts as will
compensate such Lender for such additional costs or reduction will be paid
to such Lender by the Borrower upon demand by such Lender.
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(c) In the event that any amounts are owing by the Borrower to
any Lender pursuant to subsection (a) or subsection (b) above, such Lender
shall deliver to the Borrower a statement explaining the basis upon which
such amounts have been determined to be owing, which statement shall be
conclusive and binding absent manifest error.
Section 9.05. Replacement of Lenders in Certain Circumstances.
Notwithstanding anything to the contrary contained in Section 9.01, Section
9.04 or Section 11.02(b) hereof, if any Lender shall make a demand to the
Borrower for payment pursuant to Section 9.01, Section 9.03(c), Section
9.04 or Section 11.02(b) hereof, then the Borrower may, at any time within
thirty days after such demand (but only at a time when no Default or Event
of Default has occurred and is continuing), upon notice to such Lender and
all other parties hereto that the Borrower is exercising its rights
pursuant to this Section 9.05, and subject to the payment of all amounts
due to such Lender (including, without limitation, facility fees under
Section 3.06 hereof accrued through the date of the assignment referred to
below, and any amounts payable pursuant to Section 9.01, Section 9.03(c),
Section 9.04, Section 11.02(b) and Section 11.06 hereof, including amounts
payable pursuant to Section 11.02(b) as a result of such assignment and the
compensation demanded by the Lender which gave rise to the Borrower's
exercise of its rights hereunder), cause such Lender to (and such Lender
shall) assign pursuant to Section 8.01 hereof all (but not less than all)
such Lender's Loans and Commitment and other obligations under this
Agreement to any assignee or assignees selected by the Borrower that will
agree to accept such assignment for a price equal to the aggregate
principal amount of all such Lender's outstanding Loans and accrued
interest thereon through the date of such assignment, and which assignee or
assignees shall assume all (but not less than all) of such Lender's
Commitment and other obligations hereunder.
ARTICLE X
THE AGENT
Section 10.01. Appointment. Each Lender hereby irrevocably
designates and appoints Chemical Bank as the Agent of such Lender under
this Agreement and each such Lender irrevocably authorizes Chemical Bank,
as the Agent for such Lender, to take such action on its behalf under the
provisions of this Agreement and to exercise such powers and perform such
duties as are expressly delegated to the Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise
exist against the Agent.
Section 10.02. Delegation of Duties. The Agent may exercise any
of its duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties including the advancing of funds to the
Borrower and distribution of funds to the Lenders. The Agent shall not be
responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
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Section 10.03. Exculpatory Provisions. Neither the Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (a) liable for any action lawfully taken or omitted to
be taken by it or such Person under or in connection with this Agreement
(except for its or such Person's own gross negligence or willful
misconduct), or (b) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower or
any officer therefor contained in this Agreement or in any certificate,
report, statement or other document referred to or provided for in, or
received by the Agent under or in connection with, this Agreement or for
the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or the Notes or for any failure of the
Borrower to perform its obligations hereunder or thereunder. The Agent
shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in,
or conditions of, this Agreement, or to inspect the properties, books or
records of the Borrower.
Section 10.04. Reliance by Agent. The Agent shall be entitled
to rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation reasonably believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and other
experts selected by the Agent. The Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless an Assignment and
Acceptance, as defined in Article VIII, shall have been filed with the
Agent pursuant to Article VIII. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Agent
shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the Notes in accordance with a request of
Required Lenders, and such request and any action taken or failed to be
taken pursuant thereto shall be binding upon all the Lenders and all future
holders of the Notes.
Section 10.05. Notice of Default. The Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Agent has actual knowledge thereof or has
received notice from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is
a "notice of default." In the event that the Agent receives such a notice,
the Agent shall promptly give notice thereof to the Lenders. The Agent
shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders; provided that unless
and until the Agent shall have received such directions, the Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.
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Section 10.06. Non-Reliance on Agent. Each Lender expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by the Agent
hereinafter taken, including any review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by the Agent
to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the
Borrower and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of
the Borrower. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Agent hereunder, the Agent
shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
financial and other condition or creditworthiness of the Borrower which may
come into the possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
Section 10.07. Indemnification. Each Lender agrees to indemnify
the Agent in its capacity as such (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so),
ratably according to its Pro Rata Amount, as defined below, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of this Agreement
or any documents contemplated hereby or any action taken or omitted by the
Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the Agent's gross
negligence or willful misconduct and, provided, further, that if the Agent
is at any time reimbursed by the Borrower for any indemnity paid by the
Lenders pursuant to this Section, the Agent shall pay each Lender, ratably
according to its Pro Rata Amount, such reimbursement received from the
Borrower. For purposes hereof, a Lender's "Pro Rata Amount" means the
aggregate amount payable by all Lenders pursuant to this Section 10.07, or
the aggregate amount payable to all Lenders pursuant to this Section 10.07,
as the case may be, multiplied by a fraction, the numerator of which is
such Lender's Commitment, and the denominator of which is the Aggregate
Commitments. The agreements in this Section 10.07 shall survive the
payment of the Notes and all other amounts payable hereunder.
44
Section 10.08. Agent in Its Individual Capacity. The Agent and
its affiliates may make loans to, accept deposits from and generally engage
in any kind of business with the Borrower as though the Agent were not the
Agent hereunder. With respect to Loans made or renewed by it and any Note
issued to it, the Agent shall have the same rights and powers under this
Agreement as any Lender and may exercise the same as though it were not the
Agent, and the terms "Lender" and "Lenders" shall include the Agent in its
individual capacity.
Section 10.09. Successor Agent. The Agent may resign as Agent
upon 45 days' notice to the Borrower and the Lenders. If the Agent shall
resign as Agent under this Agreement, then Required Lenders during such 45
day period shall appoint from among the Lenders a successor agent for the
Lenders, whereupon and following such successor agent's written acceptance
thereof such successor agent shall succeed to the rights, powers and duties
of the Agent, and the term "Agent" means such successor agent effective
upon its appointment, and the former Agent's rights, powers and duties as
Agent shall be terminated, without any other or further act or deed on the
part of such former Agent or any of the parties to this Agreement or any
holders of the Notes. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article X shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under
this Agreement.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Termination Date. Unless earlier terminated
pursuant to the terms of this Agreement, the Lenders' obligations to make
Loans hereunder to the Borrower shall terminate on April 6, 1997 (such
date, as it may be extended pursuant hereto, is herein referred to as the
"Termination Date"); provided, however, that the Lenders may, at their
option concurred in by all Lenders in writing, renew this Agreement for no
more than two successive one-year terms thereafter upon the written request
of the Borrower delivered to the Agent no later than two years and 90 days,
and no earlier than two years and 120 days, prior to the Termination Date
as in effect at the time of such request. The Lenders shall respond to any
such request within thirty days of receipt thereof by the Agent and failure
to respond within the requisite time period shall be deemed to be a
rejection of such extension offer. In the event that less than all of the
Lenders agree to renew this Agreement, then, at the option of the Borrower,
this Agreement shall be renewed in an amount equal to the total amount of
the Commitments of remaining Lenders; provided, however, that in no event
shall this Agreement be renewed if the total amount of the Commitments of
the remaining Lenders is less than 66 2/3% of the Aggregate Commitments as
of the Closing Date. In the event that this Agreement is renewed, any
Lender that, pursuant to this Section 11.01, elects or is deemed to elect
not to renew this Agreement shall, as of the Termination Date determined
without giving effect to such renewal, cease to be a party hereto.
Section 11.02. Indemnification. (a) The Borrower hereby
indemnifies the Agent and each Lender for and holds them harmless from all
losses, costs, expenses (including attorneys' fees and expenses and costs
of settlement), damages, penalties, actions, judgments, suits or other
45
liabilities, or disbursements of any kind (including without limitation,
those arising under Section 10.07 hereof), except any such items arising
out of the gross negligence or willful misconduct of the Agent or such
Lender, which the Agent or such Lender may incur or which may be imposed
upon or asserted against the Agent or such Lender in any way relating to or
arising out of the Borrower's use of the proceeds of the Loans, this
Agreement, the Notes or proceedings commenced as a result of any tender
offer, proxy contest or other similar transaction involving the Borrower.
This agreement shall survive termination of this Agreement and payment in
full of the Notes.
(b) The Borrower hereby indemnifies each Lender and holds such
Lender harmless from any loss, cost or expense which such Lender shall
actually sustain or incur as a consequence of (i) a failure by the Borrower
to pay principal of or interest on any LIBOR Loan, CD Loan or Fixed Rate
Loan of such Lender when due, including, but not limited to, any such loss,
cost or expense arising from interest or fees payable by such Lender to
lenders of funds obtained by it in order to make or maintain its LIBOR
Loans or CD Loans or any Fixed Rate Loan hereunder, (ii) failure by the
Borrower to make a Borrowing after the Borrower has given a notice in
accordance with Section 2.03 or after Competitive Bids have been accepted,
(iii) failure by the Borrower to make any prepayment after the Borrower has
given a notice in accordance with Section 2.09 or Section 2.10, and (iv) a
payment of a LIBOR Loan, a CD Loan or a Fixed Rate Loan (whether by
prepayment, on acceleration, or otherwise), or an assignment pursuant to
Section 9.05 hereof of a LIBOR Loan, a CD Loan or a Fixed Rate Loan, on a
day which is not the last day of the Interest Period with respect thereto,
in each case including, but not limited to, an amount equal to the excess,
if any, as reasonably determined by such Lender of (A) its cost of
obtaining the funds for the Loan being paid, prepaid, assigned or not
borrowed for the period from the date of such payment, prepayment,
assignment or failure to borrow to the last day of the Interest Period for
such Loan (or, in the case of a failure to borrow, the Interest Period for
such Loan which would have commenced on the date of such failure to borrow)
over (B) the amount of interest (as reasonably determined by the Lender)
that would be realized by the Lender in reemploying the funds so paid,
prepaid, assigned or not borrowed. Each Lender shall provide to the
Borrower a statement, supported where applicable by documentary evidence,
explaining the amount of any such loss, cost or expense, which statement
shall, in the absence of manifest error, be conclusive with respect to the
parties hereto. The Borrower shall pay to each Lender within fifteen
Business Days following receipt by the Borrower of such statement, the
amount shown thereon as owing by the Borrower to the Lender. This
agreement shall survive termination of this Agreement and payment in full
of the Notes.
Section 11.03. Representation of Lenders. Each Lender hereby
represents that it is a commercial lender or financial institution which
makes loans in the ordinary course of its business and that it will make
each Loan made by it hereunder in the ordinary course of such business;
provided, however, that, subject to Article VIII, the disposition of the
Notes held by that Lender shall at all times be within its exclusive
control.
46
Section 11.04. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank
wire, telex, telecopier, rapifax or similar writing) and shall be given to
such party at its address, telex number, telecopier number or rapifax
number set forth on the signature pages hereof or such other address, telex
number, telecopier number or rapifax number as such party may hereafter
specify for that purpose by notice to the Lenders and the Borrower. Each
such notice, request or other communication shall be effective (a) if given
by telex, when such telex is transmitted to the telex number specified in
this Section and the appropriate answerback is received, (b) if given by
telecopier or rapifax, upon receipt (receipt confirmed), (c) if by
messenger or by nationally recognized overnight carrier addressed as
aforesaid (with charges prepaid), upon written confirmation of delivery, or
(d) if given by any other means, when delivered at the address specified in
this Section.
Section 11.05. No Waivers. No failure or delay by any party in
exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 11.06. Expenses; Documentary Taxes. The Borrower shall
pay (a) all reasonable out-of-pocket expenses of the Agent (including
reasonable fees and disbursements of special counsel to the Agent) in
connection with the preparation of this Agreement, and all reasonable
out-of-pocket expenses of the Agent and the Lenders in connection with any
waiver or consent hereunder or any amendment hereof or any Default or
alleged Default hereunder, and (b) if an Event of Default occurs, all
reasonable out-of-pocket expenses incurred by the Agent and any Lender,
including fees and disbursements of counsel, in connection with such Event
of Default and collection and other enforcement proceedings resulting
therefrom. The Borrower shall indemnify each Lender against any transfer
taxes, documentary taxes, assessments or charges made by any governmental
authority by reason of the execution, delivery or performance of this
Agreement or the Notes. This Agreement shall survive termination of this
Agreement and payment in full of the Notes.
Section 11.07. Sharing of Set-Offs. Each Lender agrees that if
it shall, by exercising any right of set-off or counterclaim or otherwise,
receive payment of a proportion of the principal and interest due with
respect to the Syndicated Note or the Competitive Note held by it, as a
result of which the unpaid principal portion of the Syndicated Note or
Competitive Note held by it shall be proportionately less than the unpaid
principal portion of the Syndicated Note or Competitive Note, respectively,
held by any other Lender, the Lender receiving such proportionately greater
payment shall purchase a participation in the Syndicated Note or
Competitive Note, as the case may be, held by such other Lender, and such
other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Syndicated Notes or
Competitive Notes, as appropriate, held by the Lenders shall be shared by
the Lenders pro rata, provided, that nothing in this Section shall impair
the right of any Lender to exercise any right of set-off or counterclaim it
47
may have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under the Notes.
The Borrower agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Note, whether or
not acquired pursuant to the foregoing arrangements, may exercise rights of
set-off or counterclaim and other rights with respect to such participation
as fully as if such holder of a participation were a direct creditor of the
Borrower in the amount of such participation.
Section 11.08. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the
Required Lenders, provided that no such amendment or waiver shall, unless
signed by all the Lenders, (a) increase or subject any Lender to any
additional obligation, (b) increase the Aggregate Commitments, (c) reduce
the principal of or rate of interest on any Loan or any fees hereunder, (d)
postpone the date fixed for any payment of principal of or interest on any
Loan or any fees hereunder, (e) change the percentage of the Commitments,
or the number of Lenders, which shall be required for the Lenders or any of
them to take any action under this Section or any other provision of this
Agreement, (f) change the definition of Interest Period herein, or (g)
amend or waive any provision of Section 11.09 or Section 11.16 hereof; and
provided further that no such amendment or waiver of any provision of
Article X hereof shall be effective without the written concurrence of the
Agent.
Section 11.09. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns except that the Borrower
may not assign or otherwise transfer any of its rights under this Agreement
without the prior written consent of all Lenders.
Section 11.10. Collateral. Each of the Lenders represents to
each of the other Lenders that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension
or maintenance of the credit provided for in this Agreement.
Section 11.11. Obligations Several; Independent Nature of
Lenders' Rights. The obligation of each Lender hereunder is several, and
no Lender shall be responsible for the obligations or Commitment of any
other Lender hereunder. Nothing contained in this Agreement and no action
taken by the Lenders pursuant thereto shall be deemed to constitute the
Lenders to be a partnership, an association, a joint venture or any other
kind of entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each Lender shall be entitled
to protect and enforce its rights arising out of this Agreement and it
shall not be necessary for any other Lender to be joined as an additional
party in any proceeding for such purpose.
Section 11.12. Survival of Warranties. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement, the making of the Loans hereunder and the
execution and delivery of the Notes.
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Section 11.13. Severability. In case any provision in or
obligation under this Agreement or the Notes shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
Section 11.14. Consent to Jurisdiction and Service of Process;
Waiver of Jury Trial. All judicial proceedings brought against the
Borrower or any of the Lenders arising out of or relating to this
Agreement, any Note or any obligation of the Borrower or any obligation of
the Lenders in connection herewith or therewith may be brought in any state
or federal court of competent jurisdiction in the State and County of New
York and by execution and delivery of this Agreement each of the Borrower
and the Lenders accepts for itself and in connection with its properties,
generally and unconditionally, the jurisdiction of the aforesaid courts and
waives any defense of forum non conveniens, and irrevocably agrees to be
bound by any judgment rendered thereby in connection with this Agreement,
such Note or such obligation. All parties to this Agreement irrevocably
waive all right to trial by jury in any judicial proceeding arising out of
or relating to this Agreement, any Note or any such obligation. Each of
the Borrower and the Lenders agrees that it either has designated and
appointed such Persons as it selects to receive on its behalf service of
all process in any such proceeding in any such court, such service being
hereby acknowledged by each of the Borrower and the Lenders to be effective
and binding in every respect, or, in the alternative, hereby agrees and
consents that service of all process in any such proceeding in any such
court by certified mail at its notice address provided in the applicable
signature pages hereto constitutes effective notice and shall be effective
and binding in every respect. If any agent appointed by the Borrower or
any Lender refuses to accept service, the Borrower and each of the Lenders
hereby agrees that service upon it by mail shall constitute sufficient
notice. Nothing herein shall affect the right to service of process in any
other manner permitted by law or shall limit the right of any Lender or the
Borrower to bring proceedings in the courts of any other jurisdiction.
Section 11.15. Taxes. All payments made by the Borrower to the
Agent and to the Lenders hereunder shall be made free and clear of, and
without reduction for or on account of, any present or future income, stamp
or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any governmental authority excluding net income and franchise
taxes (imposed with respect to net income) of the United States of America
or any political subdivision or taxing authority thereof or therein
(including Puerto Rico) (such non-excluded taxes being called "Foreign
Taxes"). If any Foreign Taxes are required to be withheld from any amounts
payable hereunder or under the Notes, the amounts so payable shall be
increased to the extent necessary to yield (after payment of all Foreign
Taxes) interest or any such other amounts payable hereunder at the rates or
in the amounts specified in this Agreement and the Notes. Whenever any
Foreign Tax is payable by the Borrower, as promptly as possible thereafter,
the Borrower shall send to the Lenders a certified copy of an original
official receipt showing payment thereof. If the Borrower fails to pay any
Foreign Taxes when due to the appropriate taxing authority or fails to
remit to the Lenders the required receipts or other required documentary
49
evidence, the Borrower shall indemnify the Lenders for any incremental
taxes, interest or penalties that may become payable as a result of any
such failure. Notwithstanding anything to the contrary contained herein,
however, in the event that a Lender (or any assignee of such Lender's
obligations hereunder) is a foreign corporation or partnership for United
States income tax purposes, the Borrower's obligation under the first two
sentences of this Section 11.15 shall apply only to payments which are
effectively connected with the conduct of a trade or business by the Lender
(or its assignee) within the United States within the meaning of Section
882 of the Internal Revenue Code of 1986, as amended.
Section 11.16. Reinstatement. To the extent any Lender receives
any payment by or on behalf of the Borrower, which payment or any part
thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to the Borrower or its
estate, trustee, receiver, custodian or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then
to the extent of such payment or repayment, the obligation or part hereof
which has been paid, reduced or satisfied by the amount so repaid shall be
reinstated by the amount so repaid and shall be included within the
liabilities of the Borrower to such Lender as of the date such initial
payment, reduction or satisfaction occurred.
Section 11.17. New York Law. This Agreement and each Note shall
be construed in accordance with and governed by the law of the State of New
York.
Section 11.18. Counterparts; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
Section 11.19. Entire Agreement. This Agreement, the other loan
documents related hereto and the side letter agreement referred to in
Section 3.07 constitute the entire contract between the parties relative to
the subject matter hereof. Any previous agreement among the parties with
respect to the subject matter hereof is superseded by this Agreement, the
other loan documents and the side letter agreements referred to herein.
Nothing in this Agreement, the other loan documents or the side letter
agreements referred to herein, expressed or implied, is intended to confer
upon any party other than the parties hereto and thereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
the other loan documents or the side letter agreements referred to herein.
50
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
CLARK EQUIPMENT COMPANY
By: /s/ William N. Harper
Title: Vice President and Controller
By: /s/ Thomas B. Jones, Jr.
Title: Assistant Treasurer
100 N. Michigan Street
South Bend, Indiana 46634
Telex number: 6718074
Rapifax numbers: (219) 239-0238
or 0237
Commitments
$20,000,000.00 CHEMICAL BANK
By: /s/ C. C. Wardell
Christopher Wardell
Managing Director
Notice Address pursuant to Section 11.05:
Jennifer H. McGowan
Vice President
Chemical Securities Inc.
10 South LaSalle Street
Suite 2300
Chicago, Illinois 60603
Telephone: (312) 807-4035
Facsimile: (312) 443-1964
Notice Address (copy):
Christopher C. Wardell
Managing Director
Chemical Bank
270 Park Avenue, Tenth Floor
New York, New York 10017
Telephone: (212) 270-2053
Facsimile: (212) 270-3860
51
$12,500,000.00 ROYAL BANK OF CANADA
By: /s/ Gordon MacArthur
Name: Gordon MacArthur
Title: Manager
Notice Address pursuant to Section 11.05:
New York Branch
Royal Bank of Canada
c/o New York Operations Center
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, New York 11201-2701
Telephone: (212) 858-7168
Facsimile: (718) 522-6292/3
Notice Address (copy):
Royal Bank of Canada
One North Franklin Street, Suite 700
Chicago, Illinois 60606
Attention: Gordon C. MacArthur, Manager
Telephone: (312) 551-1613
Facsimile: (312) 551-0805
52
$12,500,000.00 COMERICA BANK
By: /s/ Phillip A. Coosaia
Name: Phillip A. Coosaia
Title: Assistant Vice President
Notice Address pursuant to Section 11.05:
Phillip A Coosaia
Comerica Bank
500 Woodward Avenue - MC 3279
Detroit, Michigan 48226
Telephone: (313) 222-7044
Facsimile: (313) 222-3330/6199
Notice Address (copy):
Sandra Fields
Comerica Bank
500 Woodward Avenue - MC 3279
Detroit, Michigan 48226
Telephone: (313) 222-3805
Facsimile: (313) 222-3330/6199
53
$12,500,000.00 NATIONSBANK OF NORTH CAROLINA, N.A.
By: /s/ Christopher B. Torie
Name: Christopher B. Torie
Title: Senior Vice President
Notice Address pursuant to Section 11.05:
Christopher Torie
NationsBank of North Carolina, N.A.
70 West Madison Avenue, Suite 5300
Chicago, Illinois 60602
Telephone: (312) 853-5794
Facsimile: (312) 853-9194
Notice Address (copy):
Kathy Mumpower
NationsBank of North Carolina, N.A.
One NationsBank Plaza NCI-002-06-19
Charlotte, North Carolina 28255
Telephone: (704) 386-7429
Facsimile: (704) 386-8694
54
$12,500,000.00 PNC BANK, NATIONAL ASSOCIATION
By: /s/ James N. DeVries
Name: James N. DeVries
Title: Vice President
Notice Address pursuant to Section 11.05:
PNC Bank, N.A.
Fifth Avenue and Wood Street
Pittsburgh, PA 15222
Telephone:_________________________
Facsimile:_________________________
Notice Address (copy):
PNC Bank, N.A.
Chicago Office
500 West Madison Street, Suite #3140
Chicago, IL 60661
Telephone: (312) 906-3400
Facsimile: (312) 906-3420
55
$7,500,000.00 UNION BANK OF SWITZERLAND,
CHICAGO BRANCH
By: /s/ Walter R. Wolff
Name: Walter R. Wolff
Title: First Vice President
By: /s/ Thomas H. Meyers
Name: Thomas H. Meyers
Title: Lending Officer
Notice Address pursuant to Section 11.05:
Denis J. Campbell, IV
Union Bank of Switzerland,
Chicago Branch
30 South Wacker Drive, 40th Floor
Chicago, Illinois 60606
Telephone: (312) 993-5604
Facsimile: (312) 993-5530
Notice Address (copy):
Anna Trost
Union Bank of Switzerland,
Chicago Branch
30 South Wacker Drive, 40th Floor
Chicago, Illinois 60606
Telephone: (312) 993-5522
Facsimile: (312) 993-5530
56
$7,500,000.00 ABN-AMRO BANK N.V.
By: /s/ Robert J. Graff
Name: Robert J. Graff
Title: Vice President
By: /s/ Bernard J. McGuigan
Name: Bernard J. McGuigan
Title: Group Vice President
Notice Address pursuant to Section 11.05:
Robert J. Graff
ABN AMRO Bank N.V.
135 South LaSalle Street
Chicago, Illinois 60603
Telephone: (312) 443-2675
Facsimile: (312) 606-8425
Notice Address (copy):
Loan Administration
ABN AMRO Bank N.V.
135 South LaSalle Street
Chicago, Illinois 60603
Telephone: (312) 443-2961
Facsimile: (312) 606-8435
57
$7,500,000.00 BANK BRUSSELS LAMBERT - NEW YORK BRANCH
By: /s/ Dominick H.J. Vangaever
Name: Dominick H.J. Vangaever
Title: Vice President -Credit Dept.
By: /s/ Eric Hollanders
Name: Eric Hollanders
Title: Senior Vice President - Credit Dept.
Notice Address pursuant to Section 11.05:
Mary V. Roney
Vice President
Bank Brussels Lambert - New York Branch
70 West Madison Avenue
Chicago, Illinois 60602
Telephone: (312) 541-0068
Facsimile: (312) 541-0072
Notice Address (copy):
Jose Garces
Bank Brussels Lambert - New York Branch
630 Fifth Avenue, 6th Floor
New York, New York 10111
Telephone: (212) 632-5429
Facsimile: (212) 632-5308
58
$7,500,000.00 BANK OF MONTREAL
By: /s/ Jeffrey C. Nicholson
Name: Jeffrey C. Nicholson
Title: Director
Notice Address pursuant to Section 11.05:
Jeffrey C. Nicholson
Bank of Montreal
115 South LaSalle Street
Chicago, Illinois 60603
Telephone: (312) 750-3732
Facsimile: (312) 750-6057
Notice Address (copy):
Debra J. Sandt
Bank of Montreal
115 South LaSalle Street
Chicago, Illinois 60603
Telephone: (312) 750-3727
Facsimile: (312) 750-4344
______________
$100,000,000
59