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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO
SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
AMENDMENT NO.1
TO
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
------------------------
CLUB CAR, INC.
(NAME OF SUBJECT COMPANY)
------------------------
CLARK ACQUISITION SUB, INC.
CLARK EQUIPMENT COMPANY
(BIDDERS)
------------------------
COMMON STOCK, PAR VALUE $.01 PER SHARE
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
(TITLE OF CLASS OF SECURITIES)
------------------------
18947B103
(CUSIP NUMBER OF CLASS OF SECURITIES)
------------------------
BERNARD D. HENELY, ESQ.
GENERAL COUNSEL
CLARK EQUIPMENT COMPANY
100 NORTH MICHIGAN STREET
P.O. BOX 7008
SOUTH BEND, INDIANA 46634
(219) 239-0145
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
------------------------
COPY TO:
WILLIAM F. WYNNE, JR., ESQ.
WHITE & CASE
1155 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 819-8200
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This Amendment No. 1 to the Schedule 14D-1 Tender Offer Statement (the
"Statement") relates to the offer by Clark Acquisition Sub, Inc., a Delaware
corporation (the "Purchaser"), to purchase all the outstanding shares of Common
Stock (the "Common Stock"), par value $.01 per share, of the Company, together
with the associated Preferred Stock Purchase Rights (the "Rights") issued
pursuant to the Rights Agreement dated as of September 24, 1993, between the
Company and Trust Company Bank, as Rights Agent (the Common Stock, together with
the Rights being herein referred to as the "Shares"), at a price of $25 per
Share, net to the seller in cash (the "Offer Price"), without interest thereon,
upon the terms and subject to the conditions set forth in the Offer to Purchase
dated February 8, 1995 (the "Offer to Purchase"), and in the related Letter of
Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer") and is intended to satisfy the reporting
requirements of Section 14(d) of the Securities and Exchange Act of 1934, as
amended.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 4 of the Statement is hereby amended to read in its entirety as
follows:
(a)-(c) The information set forth in Section 9 ("Source and Amount of
Funds") of the Offer to Purchase is incorporated herein by reference.
Clark may obtain some of the funds needed to consummate the Offer from its
Master Credit Agreement, dated as of April 6, 1994, by and among Clark, Chemical
Bank, as agent, and the financial institutions named therein, as amended by
Amendment No. 1 dated as of February 21, 1995 (as amended, the "Credit
Agreement"). Pursuant to the Credit Agreement, Clark may borrow on an unsecured
basis up to an aggregate amount of $200 million for working capital and
acquisition and other corporate purposes on a revolving basis through February
20, 1996, at which time the aggregate amount available reverts to the
pre-Amendment No. 1 amount of $100 million. As of February 27, 1995, Clark had
no outstanding borrowings under the Credit Agreement. The Credit Agreement is
scheduled to expire on April 6, 1998 and is renewable upon consent of the
lenders for one additional one-year term upon proper notice.
The following description of the various rates of interest payable by Clark
under the Credit Agreement refers to capitalized terms that have the meaning
ascribed to them in the Credit Agreement and which is attached to this Statement
as Exhibit (b). Each LIBOR Loan will 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, ranging from 0.25% to 0.5625%
depending upon Clark's then current credit rating. Each CD Loan will bear
interest on the unpaid principal amount at a rate per annum equal to the
Adjusted CD Rate plus the Applicable CD Margin, ranging from 0.375% to 0.6875%
depending upon Clark's then current credit rating. The ABR Loans will bear
interest on the unpaid principal amount at a rate per annum equal to the
Alternate Base Rate. Each Fixed Rate Loan will bear interest at a rate per annum
equal to the fixed rate of interest offered by the Lender making such Loan and
accepted by Clark.
Clark's ability to borrow under the Credit Agreement is conditioned on
compliance with certain customary covenants and satisfaction of certain other
requirements. Clark is currently in compliance with these covenants and expects
to continue to be in compliance and that funds will be available prior to the
time that funds are required to pay for Shares tendered in the Offer. Clark
currently has not made any plans or arrangements to finance or repay any
borrowings it may make under the Credit Agreement.
1
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ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C> <C>
Exhibit (b) Master Credit Agreement dated as of April 6, 1994 by and among Clark,
Chemical Bank (as agent) and the financial institutions named therein.
</TABLE>
2
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
CLARK ACQUISITION SUB, INC.
By: /s/ Bernard D. Henely
---------------------------------
Name: Bernard D. Henely
Title: Vice President and
Secretary
CLARK EQUIPMENT COMPANY
By: /s/ Bernard D. Henely
---------------------------------
Name: Bernard D. Henely
Title: Vice President and General
Counsel
Dated: February 27, 1995
3
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGES
- -------- ----------- -----------
<S> <C> <C>
(b) Master Credit Agreement dated as of April 6, 1994 by and among Clark,
Chemical Bank (as agent) and the financial institutions named
therein.
</TABLE>
<PAGE> 1
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
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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:
"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. Reduction 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
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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
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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
day and year first above written.
CLARK EQUIPMENT COMPANY
By: /s/ Thomas L. Doepker
-------------------------------------
Title: Vice President and Treasurer
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By: /s/ Thomas B. Jones, Jr.
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Title: Assistant Treasurer
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Commitments:
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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 Mac Arthur
-------------------------------------
Name: Gordon Mac Arthur
-----------------------------------
Title: Manager
-----------------------------------
Original Commitment COMERICA BANK
$12,500,000.00
Additional Commitment
$12,500,000.00
By: /s/ Phillip A. Coosaia
------------------------------------
Name: Philip A. Cossaia
-----------------------------------
Title: Assistant Vice President
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Original Commitment NATIONS BANK 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
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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 H. Wolff
-------------------------------------
Name: Walter H. Wolff
-----------------------------------
Title: Managing Director
-----------------------------------
By: /s/ Dennis J. Campbell II
-------------------------------------
Name: Dennis J. Campbell II
-----------------------------------
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
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Name: Bernard J. McGuigan
-----------------------------------
Title: Group Vice President
-----------------------------------
By: /s/ John Wm. Stanger
-------------------------------------
Name: John Wm. Stanger
-----------------------------------
Title: Group Vice President
-----------------------------------
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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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
<PAGE> 8
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS.................................................. 1
Section 1.01. Definitions........................................ 1
Section 1.02. Accounting Terms and Determinations................ 15
ARTICLE II. LOANS........................................................ 15
Section 2.01. Syndicated Loans................................... 15
Section 2.02. Syndicated Notes................................... 16
Section 2.03. Notice of Borrowing................................ 17
Section 2.04. Disbursement of Funds.............................. 18
Section 2.05. Competitive Bid Procedure.......................... 19
Section 2.06. Competitive Loans.................................. 22
Section 2.07. Competitive Notes.................................. 23
Section 2.08. Use of Proceeds.................................... 24
Section 2.09. Optional Reduction of Commitments.................. 24
Section 2.10. Optional Prepayment of Loans....................... 25
ARTICLE III. INTEREST RATE PROVISIONS, FEES AND PAYMENTS.................. 25
Section 3.01. Interest Rate and Payments......................... 25
Section 3.02. Late Principal Payment............................. 26
Section 3.03. General Provisions as to Payments.................. 26
Section 3.04. Pro Rata Treatment and Payments.................... 27
Section 3.05. Computation of Interest............................ 27
Section 3.06. Facility Fee....................................... 28
Section 3.07. Agent's Fees....................................... 28
ARTICLE IV. CONDITIONS TO LOANS.......................................... 28
Section 4.01. Conditions to Initial Loans........................ 28
Section 4.02. Conditions to All Loans............................ 29
(i)
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Page
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ARTICLE V. REPRESENTATIONS AND WARRANTIES............................... 30
Section 5.01. Corporate Existence and Power...................... 30
Section 5.02. Corporate and Governmental Authorization;
Contravention.................................... 31
Section 5.03. Binding Effect..................................... 31
Section 5.04. Financial Information.............................. 31
Section 5.05. Litigation......................................... 32
Section 5.06. Compliance with ERISA.............................. 32
Section 5.07. Taxes.............................................. 32
Section 5.08. Subsidiaries....................................... 32
Section 5.09. Not an Investment Company.......................... 33
Section 5.10. Contractual Obligations............................ 33
Section 5.11. No Default......................................... 33
Section 5.12. Compliance with Laws............................... 33
Section 5.13. Title to Assets.................................... 34
Section 5.14. Disclosure......................................... 34
ARTICLE VI. COVENANTS.................................................... 35
Section 6.01. Minimum Consolidated Net Worth..................... 35
Section 6.02. Limitation on Consolidated Debt.................... 35
Section 6.03. Limitation on Liens................................ 35
Section 6.04. Restrictions on Sales, Mergers and
Consolidations..................................... 37
Section 6.05. Information........................................ 38
Section 6.06. Payment of Taxes and Claims........................ 40
Section 6.07. Maintenance of Corporate Existence; Properties;
Insurance........................................ 40
Section 6.08. Inspection; Books and Records...................... 41
Section 6.09. Compliance with Laws............................... 42
Section 6.10. Margin Stock....................................... 42
ARTICLE VII. DEFAULTS..................................................... 42
Section 7.01. Events of Default.................................. 42
Section 7.02. Change in Control Default.......................... 45
ARTICLE VIII. ASSIGNMENTS AND PARTICIPATIONS............................... 47
Section 8.01. Assignment......................................... 47
Section 8.02. Register........................................... 49
Section 8.03. Recordation; Replacement Notes..................... 50
Section 8.04. Participations..................................... 50
Section 8.05. Disclosure of Information.......................... 51
Section 8.06. Tax Withholding.................................... 51
(ii)
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Page
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ARTICLE IX. CHANGE IN CIRCUMSTANCES AFFECTING LOANS........................ 52
Section 9.01. Capital Adequacy................................... 52
Section 9.02. Illegality of LIBOR Loans.......................... 53
Section 9.03. Unavailability of LIBOR Loans or
CD Loans; Interest Rate Unascertainable.......... 54
Section 9.04. Reserve Requirements; Taxes........................ 55
Section 9.05. Replacement of Lenders in Certain
Circumstances.................................... 56
ARTICLE X. THE AGENT...................................................... 57
Section 10.01. Appointment....................................... 57
Section 10.02. Delegation of Duties.............................. 58
Section 10.03. Exculpatory Provisions............................ 58
Section 10.04. Reliance by Agent................................. 58
Section 10.05. Notice of Default................................. 59
Section 10.06. Non-Reliance on Agent............................. 59
Section 10.07. Indemnification................................... 60
Section 10.08. Agent in Its Individual Capacity.................. 61
Section 10.09. Successor Agent................................... 61
ARTICLE XI. MISCELLANEOUS.................................................. 61
Section 11.01. Termination Date.................................. 61
Section 11.02. Indemnification................................... 62
Section 11.03. Representation of Lenders......................... 63
Section 11.04. Notices........................................... 63
Section 11.05. No Waivers........................................ 64
Section 11.06. Expenses; Documentary Taxes....................... 64
Section 11.07. Sharing of Set-Offs............................... 64
Section 11.08. Amendments and Waivers............................ 65
Section 11.09. Successors and Assigns............................ 65
Section 11.10. Collateral........................................ 66
Section 11.11. Obligations Several; Independent Nature of
Lenders' Rights................................. 66
Section 11.12. Survival of Warranties............................ 66
Section 11.13. Severability...................................... 66
Section 11.14. Consent to Jurisdiction and Service of
Process; Waiver of Jury Trial................... 66
Section 11.15. Taxes............................................. 67
Section 11.16. Reinstatement..................................... 68
Section 11.17. New York Law...................................... 68
(iii)
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Page
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Section 11.18. Counterparts; Effectiveness....................... 68
Section 11.19. Entire Agreement.................................. 68
Exhibit A-1 - Form of Competitive Bid Request
Exhibit A-2 - Form of Notice of Competitive Bid Request
Exhibit A-3 - Form of Competitive Bid
Exhibit A-4 - Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 - Form of Syndicated Loan Notice of Borrowing
Exhibit B - Form of Competitive Note
Exhibit C - Form of Syndicated Note
Exhibit D - Form of Administrative Questionnaire
Exhibit E - Form of Opinion of Counsel for the Borrower
Exhibit F - Material Subsidiaries
Exhibit G - Existing Liens
Exhibit H - Form of Assignment and Acceptance
Exhibit I - Form of Confidentiality Agreement
(iv)
<PAGE> 12
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
<PAGE> 13
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.
"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
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<PAGE> 14
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 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
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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
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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.
"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
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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.
"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
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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.
"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
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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.
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<PAGE> 20
"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 (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
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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;
(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
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(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 acquired or holds
subject to the interest of a vendor
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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.
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"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 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
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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.
"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.
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"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
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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 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.
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Section 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 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.
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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 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
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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
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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.
(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. Now 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
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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 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
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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
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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.
(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)
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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 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.
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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.
(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
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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
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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 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.
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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;
(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
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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
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(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
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,
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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.
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.
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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 so licensed or qualified could
not materially adversely
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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
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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 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 in no fact known to the Borrower which materially
adversely affects the business, operations, property,
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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%).
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;
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(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
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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;
(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 transferred 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
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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 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 principles and consistency by the chief accounting
officer of the Borrower;
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(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;
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(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
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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 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)
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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:
(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;
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(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
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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;
(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
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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 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
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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,
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of more than fifty percent (50%) of the outstanding voting capital stock of the
Borrower; or (ii) at any 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 nonpublic 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
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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).
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 representations 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
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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 an 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 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
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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
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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 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 nonpublic
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
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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 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
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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 payment of a LIBOR Loan other than on the last day of the
Interest Period applicable
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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
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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 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 relevant 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
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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 sun
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.
(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)
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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 each 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.
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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.
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
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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.
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
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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.
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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
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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
indemnities 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 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 indemnities 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
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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.
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
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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
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participation in the Syndicated Note or Competitive Note, an 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 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.
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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.
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
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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
evidence, the Borrower shall indemnify
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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
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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.
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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
day and year first above written.
CLARK EQUIPMENT COMPANY
By: /s/ W. 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
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<PAGE> 82
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
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$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
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$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
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$12,500,000.00 NATIONSBANK OF NORTH CAROLINA,
N.V.
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
-74-
<PAGE> 86
$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
-75-
<PAGE> 87
$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
-76-
<PAGE> 88
$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
-77-
<PAGE> 89
$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 Department
By: /s/ Eric Hollanders
-----------------------------
Name: Eric Hollanders
Title: Senior Vice President-
Credit Department
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
-78-
<PAGE> 90
$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
-79-
<PAGE> 91
EXHIBIT A-1
to
MASTER CREDIT AGREEMENT
Dated as of April 6, 1994
Form of Competitive Bid Request
Chemical Bank Agency Services Corporation
Grand Central Tower
140 East 45th Street
New York, New York 10017
Attention: Terri Reilly
Telephone: (212) 622-8797
Telecopy: (212) 622-0002
Attention: Syndications Department
Ladies and Gentlemen:
The undersigned refers to the Master Credit Agreement dated as
of April 6, 1994 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"; the capitalized terms used and not
otherwise defined herein being used as therein defined), among the undersigned,
Clark Equipment Company, the Lenders party thereto, and you, as Agent for such
Lenders, and hereby gives notice pursuant to Section 2.05 of the Credit
Agreement, that the undersigned hereby requests Competitive Bids for a proposed
Borrowing of Competitive Loans under the Credit Agreement, and in that
connection is set forth below the information relating to such Borrowing of
Competitive Loans (the "Proposed Borrowing") as required by Section 2.05 of the
Credit Agreement:
(i) The Business Day of the Proposed Borrowing
is __________________, 19__.
(ii) The aggregate principal amount of the
Proposed Borrowing is $______________.
(iii) The Proposed Borrowing shall be maintained as a [Fixed
Rate Loan] [LIBOR Competitive Loan] or Loans with an Interest Period of
[___ days] [___ months].
<PAGE> 92
EXHIBIT A-1
Page 2
Pursuant to Section 4.02 of the Credit Agreement, the
undersigned hereby certifies that the following statements are true on the date
hereof, and will be true on the date of the Proposed Borrowing:
(A) all the Borrower's representations and warranties
contained in the Credit Agreement are true and correct in all material
respects with the same effect as though such representations and
warranties had been made on and as of the date of the Proposed
Borrowing except that the representations and warranties which are made
as to a specific date shall be true and correct as of such date;
(B) the Borrower is in compliance with all the terms and
provisions contained in the Credit Agreement on its part to be observed
or performed, and at the time of and immediately after the Proposed
Borrowing no Default or Event of Default shall have occurred and be
continuing.
Very truly yours,
CLARK EQUIPMENT COMPANY
By:
--------------------------------
Title:
---------------------------
<PAGE> 93
EXHIBIT A-2
to
MASTER CREDIT AGREEMENT
Dated as of April 6, 1994
Form of Notice of Competitive Bid Request
The Lenders signatory to
the Credit Agreement, as
defined below
Ladies and Gentlemen:
Reference is made to the Master Credit Agreement dated as of
April 6, 1994 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Clark Equipment Company (the
"Borrower"), the Lenders parties thereto and Chemical Bank, as Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The Borrower delivered
a Competitive Bid Request on ______________________, 19__ and pursuant to
Section 2.05(a) of the Credit Agreement you are invited to submit a Competitive
Bid by [Date]/[Time].(1) You are referred to Section 2.05 of the Credit
Agreement and the terms set forth below:
(A) Date of proposed Borrowing
of Competitive Loans ___________________
(B) Principal Amount of proposed
Borrowing of Competitive Loans ___________________
____________
(1) The Competitive Bid must be received by the Agent (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.
<PAGE> 94
EXHIBIT A-2
Page 2
(C) Interest Rate Basis ___________________
(D) Interest Period and the
last day thereof ___________________
Very truly yours,
CHEMICAL BANK, as Agent
By:
--------------------------------
Title:
--------------------------
<PAGE> 95
EXHIBIT A-3
to
MASTER CREDIT AGREEMENT
Dated as of April 6, 1994
Form of Competitive Bid
[DATE OF BID]
Chemical Bank Agency Services Corporation
Grand Central Tower
140 East 45th Street
New York, New York 10017
Attention: Terri Reilly
Telephone: (212) 622-8779
Telecopy: (212) 622-0003
Ladies and Gentlemen:
Reference is made to the Master Credit Agreement dated as of
April 6, 1994 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Clark Equipment Company (the
"Borrower"), the Lenders parties thereto and Chemical Bank, as Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
In response to your Competitive Bid Request of [date], the
undersigned Lender submits the following irrevocable Competitive Bid:
<PAGE> 96
EXHIBIT A-3
Page 2
<TABLE>
<CAPTION>
Principal Amount(1) Interest Period Fixed Rate/Margin
- ---------------- --------------- -----------------
<S> <C> <C>
$ [_____% Fixed Rate]
[_____% Margin [above]
[below] the LIBOR Rate(2)]
</TABLE>
Very truly yours,
[LENDER]
By:
-----------------------------
Title:
-----------------------
__________
(1) The principal amount of the Competitive Bid shall be no less than
$5,000,000, shall be in integral multiples of $1,000,000 if greater than
$5,000,000, and shall be no greater than the full amount of the Borrowing
requested by the Borrower, subject to the limitations set forth under Section
2.06(a) of the Credit Agreement.
(2) As determined by Chemical Bank, as Agent, pursuant to the terms of the
Credit Agreement.
<PAGE> 97
EXHIBIT A-4
to
MASTER CREDIT AGREEMENT
Dated as of April 6, 1994
Form of Competitive Bid Accept/Reject Letter
Chemical Bank Agency Services Corporation
Grand Central Tower
140 East 45th Street
New York, New York 10017
Attention: Terri Reilly
Telephone: (212) 622-8779
Telecopy: (212) 622-0003
Ladies and Gentlemen:
The undersigned, Clark Equipment Company (the "Borrower"),
refers to the Master Credit Agreement dated as of April 6, 1994 (as amended,
supplemented, restated or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among the Borrower, the Lenders party thereto, and you, as Agent for such
Lenders.
In accordance with Section 2.05(c) of the Credit Agreement, we
have received a summary of Competitive Bids in connection with our Notice of
Competitive Bid Request dated __________, 19__ and in accordance with Section
2.05(d) of the Credit Agreement, we hereby accept the following bids for
maturity on [date]:
<TABLE>
<CAPTION>
Principal Amount Fixed Rate/Margin Lender
- ---------------- ----------------- ------
<S> <C> <C>
$ [%]/{+/-. %}
$
</TABLE>
Any Principal Amounts designated with an asterisk (*) after the amount shown are
bids accepted on a pro rata basis in accordance with Section 2.05(d) of the
Credit Agreement.
<PAGE> 98
EXHIBIT A-4
Page 2
We hereby reject the following bids:
<TABLE>
<CAPTION>
Principal Amount Fixed Rate/Margin Lender
- ---------------- ----------------- ------
<S> <C> <C>
$ [%]/{+/-. %}
$
</TABLE>
The $_____________, representing the aggregate principal
amount of the accepted bids, should be deposited in Chemical Bank account number
[__________] on [date].
Very truly yours,
CLARK EQUIPMENT COMPANY
By:
---------------------------------
Title:
---------------------------
<PAGE> 99
EXHIBIT A-5
to
MASTER CREDIT AGREEMENT
Dated as of April 6, 1994
Form of Notice of Borrowing of Syndicated Loans
Chemical Bank Agency Services Corporation
Grand Central Tower
140 East 45th Street
New York, New York 10017
Attention: Lascelles Thompson
Telephone: (212) 622-8738
Telecopy: (212) 622-0022
Chemical Bank
10 South LaSalle Street
Suite 2300
Chicago, Illinois 60603
Attention: Jennifer McGowan, Vice President
Telephone: (312) 807-4035
Telecopy: (312) 443-1964
The undersigned, Clark Equipment Company (the
"Borrower"), refers to the Master Credit Agreement dated as of April 6, 1994
(such Master Credit Agreement, as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, Chemical Bank as agent and the financial institutions from
time to time parties thereto. Each capitalized term used herein and not
otherwise defined herein shall have the meaning given such term in the Credit
Agreement.
Pursuant to Section 2.03 of the Credit Agreement,
this Notice of Borrowing of Syndicated Loans represents the Borrower's request
of a Borrowing of Syndicated Loans (the "Proposed Borrowing"):
(A) Date of Proposed Borrowing
("Borrowing Date")(1) __________________
__________
(1) This date must be a Business Day.
<PAGE> 100
EXHIBIT A-5
Page 2
(B) Principal amount of
Proposed Borrowing(2) __________________
(C) Proposed Borrowing Type(3) __________________
(D) Interest Period of Proposed
Borrowing(4) __________________
The Borrower hereby certifies as follows:
(i) in the case that the Proposed Borrowing 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 Borrowing requested hereby, the
representations and warranties of the Borrower contained in the Credit
Agreement shall be true and correct in all material respects with the
same effect as though made on and as of the Borrowing Date; and in the
case that the Proposed Borrowing 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 Borrowing requested hereby, the representations and
warranties of the Borrower contained in the Credit Agreement, 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 the Borrowing Date; and
__________
(2) LIBOR Borrowings and CD Borrowings shall be in minimum amounts of
$8,000,000, and in integral multiples of $1,000,000 in excess thereof, and ABR
Borrowings shall be in minimum amounts of $5,000,000 and integral multiples of
$1,000,000 in excess thereof, but in either case not to exceed the limitations
set forth in Section 2.01 of the Credit Agreement.
(3) LIBOR Syndicated Loan, CD Loan or ABR Loan.
(4) Expressed in months for Borrowings of LIBOR Syndicated Loans and in days for
Borrowings of CD Loans or ABR Loans.
<PAGE> 101
EXHIBIT A-5
Page 3
(ii) in the case of 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 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.
Dated: ______________, 199__.
CLARK EQUIPMENT COMPANY
By:
--------------------------------
Title:
--------------------------
<PAGE> 102
EXHIBIT B
to
MASTER CREDIT AGREEMENT
Dated as of April 6, 1994
Form of Competitive Note
$100,000,000.00 April 6, 1994
FOR VALUE RECEIVED, the undersigned, CLARK EQUIPMENT COMPANY, a
Delaware corporation (the "Borrower"), HEREBY UNCONDITIONALLY PROMISES TO PAY to
the order of ______________________________________ (the "Lender"), at the
office of Chemical Bank (the "Agent") located at 270 Park Avenue, New York, New
York 10017, or at such other place as shall be designated in writing by the
Agent for such purpose in accordance with the terms of the "Credit Agreement"
(as hereinafter defined), in lawful money of the United States of America and in
immediately available funds, the principal sum of ONE HUNDRED MILLION AND NO/100
DOLLARS ($100,000,000), or, if less, the aggregate unpaid principal amount of
all of the Competitive Loans made by the Lender pursuant to the Credit Agreement
on the last day of the Interest Period relating to such Competitive Loan,
together with interest in like money at such office on the unpaid principal
amount thereof from time to time from the date hereof on the dates and at the
rates per annum and calculated as set forth in the Credit Agreement.
The holder of this competitive Note is hereby authorized to
record the date, amount, interest rate and the Interest Period of each
Competitive Loan, and the date and amount of each repayment of principal
thereof, on its books and records or on the schedule annexed hereto and made a
part hereof or on a continuation thereof which shall be attached hereto and made
a part hereof, which recordation shall constitute prima facie evidence of the
accuracy of the information so endorsed in the absence of manifest error;
provided that failure by the holder of this Competitive Note to make any such
recordation shall not affect any of the obligations of the undersigned under
this
<PAGE> 103
EXHIBIT B
Page 2
Competitive Note or under the Credit Agreement. Capitalized terms used herein
and not otherwise defined herein are used as defined in the credit Agreement.
This Competitive Note is one of the Competitive Notes referred
to in, and is entitled to the benefits of, that certain Master Credit Agreement
dated as of April 6, 1994 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") among the Borrower, the
Agent and the Lenders; provided, that this reference to the Credit Agreement
shall not affect or impair the absolute and unconditional obligations of the
Borrower as provided herein. The Credit Agreement, among other things, (i)
provides the option of making Competitive Loans by the Lender to the Borrower
from time to time and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events.
The Borrower hereby waives demand, presentment, protest and
notice of nonpayment and protest.
Whenever in this Competitive Note reference is made to the
Agent, the Lender or the Borrower, such reference shall be deemed to include, as
applicable, a reference to their respective successors and assigns. The
provisions of this Competitive Note shall be binding upon and shall inure to the
benefit of said successors and assigns. The Borrower's successors and assigns
shall include, without limitation, a receiver, trustee or debtor in possession
of or for the Borrower.
THIS COMPETITIVE NOTE SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
CLARK EQUIPMENT COMPANY
By:
--------------------------------
Title:
--------------------------
By:
--------------------------------
Title:
--------------------------
<PAGE> 104
EXHIBIT B
Page 3
Clark Equipment Company Competitive Note Schedule
<TABLE>
<CAPTION> Amount of Unpaid
Amount of Type of Interest Interest Principal Principal Notation
Date Loan Loan Rate Period Repaid Balance Made By
- ------ --------- ------- -------- -------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 105
EXHIBIT C
to
MASTER CREDIT AGREEMENT
Dated as of April 6, 1994
Form of Syndicated Note
$_________________ April 6, 1994
FOR VALUE RECEIVED, the undersigned, CLARK EQUIPMENT COMPANY, a
Delaware corporation (the "Borrower"), HEREBY UNCONDITIONALLY PROMISES TO PAY to
the order of __________________ (the "Lender"), at the office of Chemical Bank
(the "Agent") located at 270 Park Avenue, New York, New York 10017, or at such
other place as shall be designated in writing by the Agent for such purpose in
accordance with the terms of the "Credit Agreement" (as hereinafter defined), in
lawful money of the United States of America and in immediately available funds,
the principal sum of ________________________________________
($_______________), or, if less, the aggregate unpaid principal amount of all of
the Syndicated Loans made by the Lender pursuant to the Credit Agreement on the
last day of the Interest Period relating to such Syndicated Loan, together with
interest in like money at such office on the unpaid principal amount thereof
from time to time from the date hereof on the dates and at the rates per annum
and calculated as set forth in the Credit Agreement.
The holder of this Syndicated Note is hereby authorized to
record the date, amount, interest rate and the Interest Period of each
Syndicated Loan, and the date and amount of each repayment of principal thereof,
on its books and records or on the schedule annexed hereto and made a part
hereof or on a continuation thereof which shall be attached hereto and made a
part hereof, which recordation shall constitute prima facie evidence of the
accuracy of the information so endorsed in the absence of manifest error;
provided that failure by the holder of this Syndicated Note to make any such
recordation shall not affect any of the obligations of the undersigned under
this
<PAGE> 106
EXHIBIT C
Page 2
Syndicated Note or under the Credit Agreement. Capitalized terms used herein and
not otherwise defined herein are used as defined in the credit Agreement,
This Syndicated Note is one of the Syndicated Notes referred
to in, and is entitled to the benefits of, that certain Master Credit Agreement
dated as of April 6, 1994 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") among the Borrower, the
Agent and the Lenders; provided, that this reference to the Credit Agreement
shall not affect or impair the absolute and unconditional obligations of the
Borrower as provided herein. The Credit Agreement, among other things, (i)
provides for the making of Syndicated Loans by the Lender to the Borrower from
time to time and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments
prior to maturity.
The Borrower hereby waives demand, presentment, protest and
notice of nonpayment and protest.
Whenever in this Syndicated Note reference is made to the
Agent, the Lender or the Borrower, such reference shall be deemed to include, as
applicable, a reference to their respective successors and assigns. The
provisions of this Syndicated Note shall be binding upon and shall inure to the
benefit of said successors and assigns. The Borrower's successors and assigns
shall include, without limitation, a receiver, trustee or debtor in possession
of or for the Borrower.
THIS SYNDICATED NOTE SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
CLARK EQUIPMENT COMPANY
By:
--------------------------------
Title:
--------------------------
By:
--------------------------------
Title:
--------------------------
<PAGE> 107
EXHIBIT C
Page 3
Clark Equipment Company Competitive Note Schedule
<TABLE>
<CAPTION> Amount of Unpaid
Amount of Type of Interest Interest Principal Principal Notation
Date Loan Loan Rate Period Repaid Balance Made By
- ------ --------- ------- -------- -------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 108
EXHIBIT D
to
MASTER CREDIT AGREEMENT
Dated as of April 6, 1994
Clark Equipment Company
Administrative Questionnaire
Please accurately complete the following information and return via FAX to the
attention of Janet Belden at Chemical Bank Agency Services Corporation as soon
as possible.
FAX Number: 212_622_0854
LEGAL NAME OF YOUR INSTITUTION TO APPEAR IN DOCUMENTATION:
______________________________________________________________________________
GENERAL INFORMATION _ DOMESTIC LENDING OFFICE:
Institution Name:_____________________________________________________________
Street Address:_______________________________________________________________
City, State, Zip Code:________________________________________________________
GENERAL INFORMATION _ EURODOLLAR LENDING OFFICE:
Institution Name:_____________________________________________________________
Street Address:_______________________________________________________________
City, State, Zip Code:________________________________________________________
CONTACTS/NOTIFICATION METHODS:
CREDIT CONTACTS:
Primary Contact:______________________________________________________________
Street Address:_______________________________________________________________
City, State, Zip Code:________________________________________________________
<PAGE> 109
EXHIBIT D
Page 2
Phone Number:_________________________________________________________________
FAX Number:___________________________________________________________________
Backup Contact:_______________________________________________________________
Street Address:_______________________________________________________________
City, State, Zip Code:________________________________________________________
Phone Number:_________________________________________________________________
FAX Number:___________________________________________________________________
TAX WITHHOLDING:
Non Resident Alien__________Y*__________N
* Form 4224 Enclosed
Tax ID Number__________
CONTACTS/NOTIFICATION METHODS:
ADMINISTRATIVE CONTACTS _ BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact:______________________________________________________________________
Street Address:_______________________________________________________________
City, state, Zip Code:________________________________________________________
Phone Number:_________________________________________________________________
FAX Number:___________________________________________________________________
BID LOAN NOTIFICATIONS:
Contact:______________________________________________________________________
Street Address:_______________________________________________________________
City, state, Zip Code:________________________________________________________
<PAGE> 110
EXHIBIT D
Page 3
Phone Number:_________________________________________________________________
FAX Number:___________________________________________________________________
PAYMENT INSTRUCTIONS:
Name of Bank where funds are to be transferred:_______________________________
Routing Transfer/ABA number of Bank where funds are to be transferred:
______________________________________________________________________________
Account:______________________________________________________________________
Additional Information:_______________________________________________________
MAILINGS:
Please specify who should receive financial information:
Name:_________________________________________________________________________
Street Address:_______________________________________________________________
City, State, Zip Code:________________________________________________________
It is very important that all of the above information is accurately filled in
and returned promptly. If there is someone other than yourself who should
receive this questionnaire, please notify us of their name and FAX number and we
will FAX them a copy of the questionnaire. If you have any questions, please
call me at (212) 622_ 0001.
<PAGE> 111
EXHIBIT E
to
MASTER CREDIT AGREEMENT
Dated as of April 6, 1994
Form of Opinion of Counsel for the Borrower
See Attached.
<PAGE> 112
EXHIBIT E
Page 2
[CLARK EQUIPMENT COMPANY LETTERHEAD]
April __, 1994
Chemical Bank, as Agent
c/o Chemical Securities Inc.
10 South LaSalle Street
Chicago, Illinois 60602
The Lenders under the Credit
Agreement referred to herein
Gentlemen:
I have acted as counsel to Clark Equipment Company, a Delaware
corporation ("Borrower"), in connection with the transactions evidenced by (i)
the Master Credit Agreement dated as of April 6, 1994 ("Credit Agreement") among
the Borrower, the Lenders named therein (the "Lenders") and Chemical Bank, as
agent for the Lenders, and (ii) certain promissory notes dated as of April 6,
1994 ("Notes") executed by the Borrower and payable to the order of the Lenders
which are to be delivered to the Lenders pursuant to the terms of the Credit
Agreement. Capitalized terms used in this letter which are not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
Based upon my examination of the Credit Agreement and the
Notes, and such matters of law and fact as I consider relevant under the
circumstances, I am of the opinion that:
1. Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, has the
corporate power to own its properties and to carry on its business as presently
conducted, and is qualified as a foreign corporation, in good standing, under
the laws of all states in which the character of the property owned or leased by
it or the
<PAGE> 113
EXHIBIT E
Page 3
nature of the business conducted by it requires such qualification.
2. The Borrower has the corporate power and authority to
execute, deliver and perform its obligations under the Credit Agreement and each
of the Notes. The execution, delivery and performance by Borrower of the Credit
Agreement and the Notes have been duly authorized by all necessary corporate
action and, if required, stockholder 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, (a) Borrower's Certificate of
Incorporation or By-Laws, (b) any provision of any applicable law or regulation,
(c) any order, writ, injunction or decree of any court or governmental
authority, or (d) any of the terms, conditions or provisions of any material
agreement or instrument, of which I have knowledge, to which the Borrower is a
party or by which the Borrower is bound. The Credit Agreement and each of the
Notes have been duly executed and delivered by the Borrower.
3. To the best of my knowledge, following due inquiry, there
is no pending or threatened action, suit or proceeding, or any order, writ,
injunction or decree, against or affecting Borrower or any Subsidiary before any
court, governmental agency or arbitrator 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 the Credit Agreement or the Notes.
4. To the best of my knowledge, following due inquiry, neither
the Borrower nor any Subsidiary is in violation of or default with respect to
(a) any order, writ, injunction or decree of any court or (b) any applicable
law, order, or regulation of any governmental agency or instrumentality, which
violation or default would result in damages exceeding 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 the Credit Agreement or the Notes.
<PAGE> 114
EXHIBIT E
Page 4
5. To the best of my knowledge, following due inquiry, there
is no material default by the Borrower or any Subsidiary under any instrument
for borrowed money in an aggregate principal amount in excess of $10,000,000 or
any other material contract, lease agreement, instrument or commitment to which
the Borrower or any Subsidiary is a party.
6. In Section 11.17 of the Credit Agreement, the Borrower and
the Lenders agree that the Credit Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York. Similarly, each of the
Notes provides that the rights and liabilities of the parties thereto shall be
determined in accordance with the laws of the State of New York. In Indiana, the
intention of the parties that a contract shall be governed by the law of another
state will be given effect if the place intended bears a reasonable relation to
the transaction, there is no fraud and the application of the law of the chosen
state would not be contrary to a fundamental policy of Indiana. Inglehart Bros.
Inc. v. John Deere Plow Co. (1943), 114 Ind. App. 182, 51 N.E.2d 498; Barrow v.
ATCO Manufacturing Company (Ind. App. 1988), 524 N.E.2d 1313. Unfortunately, the
cases do not definitively establish criteria and guidelines for what constitutes
a "reasonable relation" to the transaction or an exhaustive list of fundamental
public policies. Accordingly, I express no opinion as to the validity or
enforceability of Section 11.17 of the Credit Agreement or the choice of law
provision in the Notes. However, if a court were to hold that the Credit
Agreement and the Notes are governed by, and to be construed in accordance with,
the laws of the State of Indiana, the Credit Agreement and the Notes would be,
under the laws of the State of Indiana, the legal, valid and binding obligation
of the Borrower enforceable against the Borrower in accordance with their
respective terms.
The opinions set forth in this letter are subject to the
following qualifications, limitations, and assumptions, in addition to those set
forth above and elsewhere in this letter:
A. The legality, validity, enforceability, and binding nature
of the Credit Agreement and the Notes may be limited or otherwise
affected by (i)
<PAGE> 115
EXHIBIT E
Page 5
bankruptcy, insolvency, reorganization, liquidation, readjustment of
debt, moratorium, fraudulent conveyance, equity of redemption, or
similar laws affecting creditors' rights or remedies generally, (ii)
general principles of equity (regardless of whether applied in a
proceeding at law or in equity), (iii) emergency or other powers that
may be exercised by governmental bodies or entities with jurisdiction,
and (iv) applicable laws of the State of Indiana which may render
certain of the remedies and waivers in the Credit Agreement and the
Notes unenforceable, but the inclusion of which do not affect the
validity of the Credit Agreement and the Notes as a whole.
B. Under Indiana law, contractual indemnification and hold
harmless provisions may not be enforceable to the extent the contract
does not clearly and unequivocally specify that the indemnity or
exculpation covers claims, losses, expenses or other liabilities
arising or alleged to arise, in whole or in part, from the negligence,
strict liability or other acts or omissions of the indemnified party.
Moreover, at least one Indiana case, Wilson Leasing Co. v. Gadberry,
437 N.E.2d 500 (Ind. App. 1982), states that indemnification (and
presumably exculpation) clauses generally are strictly construed and
that the terms must be set forth clearly and unequivocally. Further,
indemnification or exculpation as against certain claims, losses,
expenses, or other liabilities arising as the result of the indemnified
party's violation of Federal or state statutes, or the indemnified
party's own tort liability when performing a public or quasi-public
duty, or other acts or omissions, may be considered contrary to public
policy and therefore invalid and/or unenforceable.
C. I express no opinion as to the enforceability of Section
11.14 of the Credit Agreement.
D. Provisions in the Credit Agreement and Notes that may
require additional payments upon default or prepayment, or impose
higher rates of interest upon default or prepayment, may not be valid
and enforceable to the extent the same exceed that
<PAGE> 116
EXHIBIT E
Page 6
required to adequately compensate for any losses occasioned by the
default or prepayment.
E. I have assumed that the Lenders have provided the
consideration called for by the Credit Agreement.
F. I have assumed without independent investigation or
verification of any kind: (i) the genuineness of all signatures on
documents reviewed by me and the incumbency and authority of all
signatories, other than those signing on behalf of the Borrower; (ii)
the authenticity of all documents submitted to me as originals and the
conformity to authentic originals of all documents submitted to me as
copies; (iii) the due authorization, execution and delivery of the
Credit Agreement by each of the parties thereto other than the
Borrower; (iv) the legal capacity of all natural persons and the power
and authority of all parties, except the Borrower, to execute and
deliver the Credit Agreement; (v) each of the corporations that are
parties to the Credit Agreement other than the Borrower is duly
organized, validly existing and in good standing in the jurisdiction of
its incorporation and domicile, and has all necessary corporate power
and authority to enter into the Credit Agreement and consummate the
transactions contemplated thereby; and (vi) the legality, validity,
binding effect and enforceability of the Credit Agreement in accordance
with its terms against each of the parties thereto other than the
Borrower.
I am a member of the Bar of the State of Indiana and do not
express or purport to express any opinion with respect to the laws of any
jurisdiction other than the laws of the State of Indiana, the corporate laws of
the State of Delaware and the Federal laws of the United States.
I express no opinion as to any matter except as specifically
set forth herein. This opinion is given for the sole use and benefit of the
Agent under the Credit Agreement, each of the original Lenders party to the
Credit Agreement and their respective assignees, participants and other
transferees (to the extent that the relevant assignment, participation or other
transfer has been
<PAGE> 117
EXHIBIT E
Page 7
effected in accordance with the terms of the Credit Agreement), and may not be
distributed to any other party.
Very truly yours,
CLARK EQUIPMENT COMPANY
<PAGE> 118
EXHIBIT F
to
MASTER CREDIT AGREEMENT
Dated as of April 6, 1994
Material Subsidiaries of Borrower as of Closing Date
Equipamentos Clark Ltda.
Clark Business Services Corporation
Clark Equipment Belgium N.V.
Clark-Hurth Components S.p.A.
<PAGE> 119
EXHIBIT G
to
MASTER CREDIT AGREEMENT
Dated as of April 6, 1994
Liens In Existence on Closing Date
(1) Liens of the type described in Section 6.03(b) of the
Master Credit Agreement which were created prior to the Closing Date on office
equipment and machines and similar types of items acquired by Borrower and its
Subsidiaries in the ordinary course of business.
(2) Lien granted by Celfor Insurance Co., Ltd. ("Celfor") to
Harris Trust & Savings Bank ("Bank") on Celfor's Investment Management account
maintained at the Bank to secure repayment of Celfor's obligations to the Bank
with respect to Letters of Credit issued by the Bank which have an aggregate
outstanding balance of approximately $1,117,000.
(3) Liens granted by Clark-Hurth Components S.p.A. ("Hurth")
to Mediocredito Trentino Alto Adige on the real estate, machinery, plant and
equipment of Hurth to secure certain loans made to Hurth which loans have an
aggregate remaining principal balance as of March 31, 1994 of approximately 21.8
billion Lira.
(4) Liens granted by Hurth to Cassa Risparmio Trento E
Rovereto on the real estate, machinery, plant and equipment of Hurth to secure
certain loans made to Hurth which loans have an aggregate remaining principal
balance as of March 31, 1994 of approximately 233 million Lira.
<PAGE> 120
EXHIBIT H
to
MASTER CREDIT AGREEMENT
Dated as of April 6, 1994
Form of Assignment and Acceptance
Dated _______________, 199__.
Reference is made to the Master Credit Agreement, dated as of
April 6, 1994, by and among Clark Equipment Company, a Delaware corporation (the
"Borrower"), Chemical Bank, as agent (the "Agent"), and the financial
institutions from time to time parties thereto (such Master Credit Agreement, as
the same may be amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement"). Unless otherwise defined herein, terms defined
in the Credit Agreement are used herein with the same meanings.
______________________________ (the "Assignor")
and ______________________________ (the "Assignee") hereby agree as follows:
1. In accordance with the provisions of Article VIII of the
Credit Agreement, the Assignor hereby sells and assigns to the Assignee, WITHOUT
RECOURSE, and the Assignee hereby purchases and assumes from the Assignor, a
_______% interest in and to all of the Assignor's rights and obligations under
the Credit Agreement as of the Effective Date (as defined below), including,
without limitation, all of its rights and obligations with respect to the
Assignor's Commitment[,] [and] Syndicated Loans [and Competitive Loans]
(collectively, the "Assigned Interest") [, it being understood that the
Assignor's rights with respect to its Competitive Loans outstanding as of the
date hereof under the Credit Agreement are not hereby sold or assigned].
2. The Assignor represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim created by the Assignor,
and as of the date hereof (and without giving effect to any
<PAGE> 121
EXHIBIT H
Page 2
assignment of such interest which has not become effective) (i) the Assignor's
Commitment is $____________ [,] [and] (ii) the aggregate outstanding principal
amount of the Syndicated Loans owing to the Assignor is $____________ [and (iii)
the aggregate outstanding principal amount of the Competitive Loans owing to the
Assignor is $____________].
3. The Assignor and the Assignee confirm as follows: (i) the
Assignor warrants that it is the legal and beneficial owner of the interest
being assigned hereby 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 Paragraph 2 of this Assignment and Acceptance, (ii) except as set forth
in (i) above, the Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, any other loan document or any other instrument or document furnished
pursuant thereto, or the financial condition of the Borrower or any Subsidiary
thereof or the performance or observance by the Borrower or any Subsidiary
thereof of an of its obligations under the Credit Agreement, any other loan
document or any other instrument or document furnished pursuant thereto; (iii)
the Assignee represents and warrants that it is legally authorized to enter into
this Assignment and Acceptance; (iv) the Assignee confirms that it has received
a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 6.05 therein and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (v) the
Assignee will independently and without reliance upon the Agent, the Assignor 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 the Credit Agreement; (vi) the Assignee appoints and
authorizes the Agent to take such action as Agent on its behalf and to exercise
such powers under the Credit Agreement as are delegated to the Agent by the
terms thereof, together with such powers as
<PAGE> 122
EXHIBIT H
Page 3
are reasonably incidental thereto; and (vii) the Assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender.
4. This Assignment and Acceptance cannot become effective
unless and until the following conditions precedent are met: (i) the Agent shall
receive from the parties hereto this Assignment and Acceptance, duly executed by
the Assignor and the Assignee, an Administrative Questionnaire (unless the
Assignee is already a Lender), the Assignor's Note or Notes that are the subject
of this Assignment, a processing and recordation fee of $2,000, and, unless the
Assignee is already a Lender and the effect of this Assignment and Acceptance
will not result in any one Lender's Commitment exceeding thirty percent (30%) of
the Aggregate Commitments under the Credit Agreement, the Borrower's prior
written consent to this Assignment and Acceptance (which consent of the Borrower
shall not be unreasonably withheld); and (ii) the Assigned Interest, set forth
in Paragraph 2 above (determined as of the date this Assignment and Acceptance
is delivered to the Agent), shall not have a cumulative value of less than
$2,500,000, or, if less, the aggregate amount of the Assignor's rights and
obligations under the Credit Agreement.
5. Upon its receipt of this duly completed Assignment and
Acceptance and each of the other items listed in Paragraph 4, the Agent shall
(i) accept this Assignment and Acceptance, (ii) record the information contained
herein in the Register maintained in its office pursuant to Section 8.03 of the
Credit Agreement (the date such information is recorded being the "Recording
Date"), and (iii) give prompt notice thereof to the Borrower and the Lenders.
6. Upon acceptance and recording pursuant to Paragraph 5
above, from and after the effective date specified in this Assignment and
Acceptance, which effective date shall be at least five Business Days (except as
otherwise agreed by the Assignor, the Assignee and the Agent) after the
execution hereof (the "Effective Date"), (A) the Assignee shall be a party to
and shall be bound by the provisions of the Credit Agreement and, to the extent
<PAGE> 123
EXHIBIT H
Page 4
of the interest assigned by this Assignment and Acceptance, have the rights and
obligations of a Lender under the Credit Agreement and (B) the Assignor shall,
to the extent of the interest assigned by this Assignment and Acceptance, be
released from its obligations under the Credit Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under the Credit Agreement, the Assignor shall
cease to be a party to the Credit Agreement, but shall continue to be entitled
to the benefits of Sections 9.04, Section 11.02, Section 11.06 and Section 11.15
thereto, to the extent that any event or occurrence giving rise to the need for
such benefit arose or accrued prior to the Effective Date hereof, as well as to
any interest and fees accrued for its account and not yet paid).
7. Upon the later of the Recording Date and the Effective
Date, the Agent shall make all payments under the Credit Agreement in respect of
the interest assigned hereby (including, without limitation, all payments of
principal, interest and unpaid facility fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement for periods prior to the later of the
Recording Date and the Effective Date directly between themselves.
8. This Assignment and Acceptance may be executed in any
number of counterparts which, when taken together, shall be deemed to constitute
one and the same instrument.
<PAGE> 124
EXHIBIT H
Page 5
9. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[NAME OF ASSIGNOR]
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
[NAME OF ASSIGNEE]
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
Accepted this ______ day
of _______________, 199__.
CHEMICAL BANK, as Agent
By:
-----------------------------
Name:
------------------------
Title:
-----------------------
<PAGE> 125
EXHIBIT I
to
MASTER CREDIT AGREEMENT
Dated as of April 6, 1994
Form of Confidentiality Agreement
[Name and Address of
Assignee or Participant
or Prospective Assignee
or Participant]
Re: Master Credit Agreement dated as
of April 6, 1994
Ladies and Gentlemen:
[Name of selling bank] (the "Seller") is party to a Master
Credit Agreement dated as of April 6, 1994 (the "Credit Agreement") by and among
the Seller, the other financial institutions from time to time party thereto,
Clark Equipment Company, a Delaware corporation (the "Borrower"), and Chemical
Bank, as agent. Each term used herein and not otherwise defined herein shall
have the meaning given to such term in the Credit Agreement. [Name of purchasing
bank] (the "Purchaser") has expressed a desire to purchase a [$_________]
[_____%] [participating] interest in the Seller's [Commitment] [Syndicated]
[Loans] [Syndicated] [Note[s]] from the Seller (the "Transferred Interest"), and
in connection therewith desires to receive from the Seller and the Borrower
information relating to the Borrower and to its business.
The Purchaser hereby acknowledges that, in order to evaluate
the Transferred Interest, and thereafter, if it purchases [a participating] [an]
interest in the Seller's [Commitment] [Syndicated] [Loans] [Syndicated]
[Note[s]], [as a Lender under the Credit Agreement,] it may receive from the
Borrower or from the Seller non-public information relating to the Borrower and
its business ("Confidential Information"). The Purchaser hereby agrees that it
will keep confidential any Confidential Information supplied to it by the
Borrower or the Seller in connection with its evaluation of the Transferred
Interest, and thereafter, if
<PAGE> 126
EXHIBIT I
Page 2
it purchases [a participating] [an] interest in the Seller's [Commitment]
[Syndicated] [Loans] [Syndicated] [Note[s]], [as a Lender under the Credit
Agreement,] to the extent that such information does not become publicly
available, it will use such Confidential Information only in connection with its
evaluation of the Transferred Interest, and thereafter, if it purchases [a
participating] [an] interest in the Seller's [Commitment] [Syndicated] [Loans]
[Syndicated] [Note[s]], in connection with the transactions contemplated by the
Credit Agreement, and for no other purpose; provided that nothing herein shall
affect the disclosure of any Confidential Information (a) by the Purchaser to
any Lender, (b) to the extent required by law (including statute, rule,
regulation or judicial process), (c) to counsel for the Purchaser or to its
accountants, each of whom shall also be bound by the confidentiality obligations
set forth herein, (d) to bank examiners and auditors and appropriate government
examining authorities, (e) to the extent necessary or appropriate in connection
with any litigation to which the Purchaser is a party, or (f) subject to
Sections 8.01, 8.04 and 8.05 of the Credit Agreement, by the Purchaser to any
actual or prospective assignee or participant of any part of the [Commitment]
[Syndicated] [Loans] [Syndicated] [Note[s]] held by the Purchaser, a
determination by the Purchaser as to the application of the circumstances
described in the foregoing clauses (a)-(e) being conclusive if made in good
faith. The Purchaser agrees that it shall give the Borrower notice prior to
disclosure of any such information pursuant to clause (b) and clause (e) hereof,
to the extent permitted under applicable law.
Please date and sign both enclosed duplicate copies of this letter, and
return one to Seller at __________________ Attention:__________________ and one
to the Borrower at __________________ Attention:__________________ to indicate
your agreement with the terms hereof. Upon your execution
<PAGE> 127
EXHIBIT I
Page 3
and delivery hereof, this letter shall constitute a binding agreement among the
Seller and the Purchaser.
Very truly yours,
[NAME OF SELLER BANK]
By:
-------------------------------
Title:
-------------------------
CLARK EQUIPMENT COMPANY
By:
-------------------------------
Title:
-------------------------
AGREED TO:
[NAME OF PURCHASER BANK]
By:
---------------------------
Title:
---------------------
Date:
----------------------
