Exhibit 4(d)
EXECUTION COPY
AMENDMENT NO. 1 dated as of February 21, 1995 (this "Amendment"),
among Clark Equipment Company, a Delaware corporation (the "Borrower"), the
financial institutions parties hereto (the "Lenders") and Chemical Bank, a
New York banking corporation, as agent for the Lenders (in such capacity,
the "Agent").
PRELIMINARY STATEMENTS. (1) The Borrower, the Lenders and the Agent
have entered into the Master Credit Agreement dated as of April 6, 1994
(the "Credit Agreement") and have agreed to amend the Credit Agreement as
hereinafter set forth.
(2) Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to such terms in the Credit Agreement.
In consideration of the premises and the agreements, provisions and
covenants herein contained, the parties hereto hereby agree, on the terms
and subject to the conditions set forth herein, as follows:
SECTION 1. Amendment of the Credit Agreement. The Credit Agreement
is hereby amended as follows:
(a) The defined terms "Aggregate Commitments" and "Commitment"
contained in Section 1.01 of the Credit Agreement are hereby deleted and
the following defined terms substituted therefor:
"Aggregate Commitments" means the aggregate amount of the
Commitments of all Lenders, subject to reduction as provided in
Section 2.09.
"Commitment" means, with respect to each Lender, such Lender's
Original Commitment and Additional Commitment, collectively.
(b) The following defined terms are hereby added to Section 1.01 of
the Credit Agreement (in appropriate alphabetical order):
"Additional Commitment" means, with respect to each Lender, the
amount set forth opposite the name of such Lender under the heading
"Additional Commitment" on the signature pages hereof, subject to
reduction as provided in Section 2.09. The original aggregate amount
of the Additional Commitments is $100,000,000.
"Additional Commitment Termination Date" means February 20, 1996.
"Original Commitment" means, with respect to each Lender, the
amount set forth opposite the name of such Lender under the heading
"Original Commitment" on the signature pages hereof, subject to
reduction as provided in Section 2.09. The original aggregate amount
of the Original Commitments is $100,000,000.
(c) The defined term "Interest Period" contained in Section 1.01 of
the Credit Agreement is hereby amended to add the following at the end of
clause (D) of the proviso clause thereto:
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"and no Interest Period shall extend beyond the Additional Commitment
Termination Date if, as a result thereof, Loans in an aggregate
principal amount in excess of $100,000,000 would be subject to
Interest Periods which extend beyond the Additional Commitment
Termination Date."
(d) Section 2.09 of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
Section 2.09. Reductions of the 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 Original Commitments
and/or the Additional Commitments or reduce the amount of the Original
Commitments and/or the Additional Commitments. In addition, the
Additional Commitment of each Lender shall automatically terminate on
the Additional Commitment Termination Date and the Aggregate
Commitments shall be reduced accordingly. Any reduction or
termination of the Commitments shall be subject to the following: (a)
any such reduction 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 Original Commitments or the Additional Commitments, as applicable,
then in effect, (b) no such reduction or termination may reduce the
amount of the Aggregate Commitments to an amount less than the
aggregate outstanding principal amount of Competitive Loans (after
giving effect to any repayments of Competitive Loans on the date of
such reduction), (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 or
termination, 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 or
termination, pay accrued facility fees pursuant to Section 3.06 hereof
on the amount of such reduction or termination to the date of such
reduction or termination. Upon any such reduction of the Original
Commitments or the Additional Commitments, the Original Commitment or
Additional Commitment, as the case may be, of each Lender shall be
reduced pro rata. Each notice of reduction of the Original
Commitments or the Additional Commitments shall be irrevocable once
given.
(e) Section 8.01(a) of the Credit Agreement is hereby amended to add
the following clause (viii) to the proviso clause thereto:
"(viii) any assignment of such Lender's Original Commitment shall
include an assignment of an equal portion of such Lender's Additional
Commitment, and any assignment of such Lender's Additional Commitment
shall include an assignment of an equal portion of such Lender's
Original Commitment."
(f) Section 11.01 of the Credit Agreement is hereby amended to (i)
change the date in the first sentence thereof from "April 6, 1997" to
"April 6, 1998" and (ii) to delete the words "two successive one-year
terms" contained in the proviso clause to the first sentence thereof and to
substitute the words "one additional one-year term" therefor.
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SECTION 2. Consent to Sale of Borrower's Interest in the Joint
Venture Company. Notwithstanding anything to the contrary contained in the
Credit Agreement, the Lenders hereby consent to the Borrower's sale of all
or any portion of its interest in the Joint Venture Company.
SECTION 3. Representations and Warranties. The Borrower represents
and warrants to each of the Lenders and the Agent that:
(a) This Amendment and each of the replacement Notes executed in
connection herewith have been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation,
enforceable in accordance with their respective terms except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws
affecting creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(b) Before and after giving effect to this Amendment, the
representations and warranties set forth in Article V of the Credit
Agreement are true and correct in all material respects with the same
effect as if made on the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) Before or after giving effect to this Amendment, no Event of
Default or Default has occurred and is continuing.
SECTION 4. Condition to Effectiveness. The amendments to the Credit
Agreement set forth in this Amendment shall become effective as of the date
first above written when the Agent shall have received (i) counterparts of
this Amendment that, when taken together, bear the signatures of the
Borrower and all of the Lenders and (ii) a replacement Competitive Note and
a replacement Syndicated Note executed by the Borrower for each of the
Lenders.
SECTION 5. Credit Agreement. Except as specifically amended hereby,
the Credit Agreement shall continue in full force and effect in accordance
with the provisions thereof as in existence on the date hereof. After the
date hereof, any reference to the Credit Agreement shall mean the Credit
Agreement as amended hereby. For purposes of determining each Lender's
Original Commitment and Additional Commitment, the signature pages to this
Amendment shall be deemed to also constitute signature pages to the Credit
Agreement.
SECTION 6. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract.
SECTION 8. Expenses. The Borrower agrees to reimburse the Agent for
its out-of-pocket expenses in connection with this Amendment, including the
reasonable fees, charges and disbursements of Sidley & Austin, counsel for
the Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the date and
year first above written.
CLARK EQUIPMENT COMPANY
By: /s/ Thomas L. Doepker
Title: Vice President and Treasurer
By: /s/ Thomas B. Jones, Jr.
Title: Assistant Treasurer
Commitments:
Original Commitment CHEMICAL BANK
$20,000,000.00
Additional Commitment
$20,000,000.00
By: /s/ C. C. Wardell
Name: C. C. Wardell
Title: Managing Director
Original Commitment THE ROYAL BANK OF CANADA
$12,500,000.00
Additional Commitment
$12,500,000.00
By: /s/ Gordon MacArthur
Name: Gordon MacArthur
Title: Manager
Original Commitment COMERICA BANK
$12,500,000.00
Additional Commitment
$12,500,000.00
By: /s/ Phillip A. Coosaia
Name: Phillip A. Coosaia
Title: Assistant Vice President
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Original Commitment NATIONSBANK OF NORTH CAROLINA, N.A.
$12,500,000.00
Additional Commitment
$12,500,000.00
By: /s/ Christopher B. Torie
Name: Christopher B. Torie
Title: Senior Vice President
Original Commitment PNC BANK, NATIONAL ASSOCIATION
$12,500,000.00
Additional Commitment
$12,500,000.00
By: /s/ James N. DeVries
Name: James N. DeVries
Title: Vice President
Original Commitment UNION BANK OF SWITZERLAND,
$7,500,000.00 CHICAGO BRANCH
Additional Commitment
$7,500,000.00
By: /s/ Walter R. Wolff
Name: Walter R. Wolff
Title: Managing Director
By: /s/ Denis J. Campbell IV
Name: Denis J. Campbell IV
Title: Vice President
Original Commitment ABN-AMRO BANK N.V.
$7,500,000.00
Additional Commitment
$7,500,000.00
By: /s/ Bernard J. McGuigan
Name: Bernard J. McGuigan
Title: Group Vice President
By: /s/ John Wm. Stanger
Name: John Wm. Stanger
Title: Group Vice President
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Original Commitment BANK BRUSSELS LAMBERT - NEW YORK
$7,500,000.00 BRANCH
Additional Commitment
$7,500,000.00
By: /s/ Gerrit Verlodt
Name: Gerrit Verlodt
Title: Senior Vice President
By: /s/ Eric Hollanders
Name: Eric Hollanders
Title: Senior Vice President
Credit Department
Original Commitment BANK OF MONTREAL
$7,500,000.00
Additional Commitment
$7,500,000.00
By: /s/ Jonathan D. Hook
Name: Jonathan D. Hook
Title: Director
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