<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-K
[X] Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the fiscal year ended December 31, 1995
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Commission file # 0-2129
THE RAYMOND CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
New York 15-0372290
- ---------------------------- -----------------------------------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or
organization)
20 South Canal Street, Greene, New York 13778
- ----------------------------------------- ---------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (607) 656-2311
-----------------
Securities registered pursuant to Section 12(b) of the Act:
None
- ------------------------------------------------------------------------------
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $1.50 par value per share
6.50% Convertible Subordinated Debentures Due 2003
--------------------------------------------------
(Title of class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
------- ---------
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K. [ X ]
As of March 15, 1996, the aggregate market value of the voting stock held by
non-affiliates of the registrant was $104,875,926.50.
As of March 15, 1996, there were 7,082,938 shares of the registrant's Common
Stock, $1.50 par value, outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the annual shareholders report for the year ended December 31, 1995
are incorporated by reference into Parts I, II and IV.
Portions of the proxy statement for the annual shareholders meeting to be held
May 4, 1996 are incorporated by reference into Part III.
Total number of pages in filing 462.
Exhibit Index is located on pages 19-21.
<PAGE>
THE RAYMOND CORPORATION, GREENE, NEW YORK
Form 10-K
PART I
Item 1. Business
(a) The Company (as used herein the term "Raymond" refers to The
Raymond Corporation alone, and the term "Company" refers to
The Raymond Corporation and its subsidiaries, both
consolidated and unconsolidated, and direct and indirect)
operates predominately in one business segment, that being the
design, manufacture, sale, leasing and short-term rental of
materials handling equipment. Revenues are realized primarily
from distribution of the RAYMOND(R)and DOCKSTOCKER(TM)product
lines through the Company's Dealer Network which is
principally located in North America. In addition, the Company
has expanded in both the domestic and international markets
through distribution and Original Equipment Manufacturer
("O.E.M.") supply agreements.
Raymond was organized in 1840 as Lyon Iron Works, in Greene, New
York, and in 1922 George G. Raymond, Sr. purchased it. Raymond
produced its first materials handling product in 1930 under the
Lyon Iron Works name. In 1941, Raymond was renamed Lyon-Raymond
Corporation, and in 1951, was renamed The Raymond Corporation.
Shares were first offered to the public in 1956.
The major components of the Company's international operations
are Raymond Industrial Equipment, Limited, a wholly-owned
Canadian manufacturing subsidiary, and G.N. Johnston Equipment
Co. Ltd., the exclusive Canadian distributor that is 46% owned
by R.H.E. Ltd., a wholly-owned Canadian subsidiary of Raymond.
Foreign exchange exposure on international operations is limited
primarily to the Canadian dollar and is minimized through the
purchase of foreign currency exchange contracts and options.
In 1991, Raymond and Mitsubishi Caterpillar Forklift America
Inc. ("MCFA") signed an agreement to create a joint venture
company. The joint venture company, known as Material Handling
Associates, Inc. ("M.H.A."), is a separate enterprise which
designs, develops, and sells products to be manufactured
exclusively by the Company and distributed exclusively through
M.H.A. dealers using Caterpillar trademarks. This venture is
intended to expand distribution of products manufactured by the
Company and to provide additional opportunities for the sale of
replacement parts and accessories. Certain officers of the
Company are also officers of M.H.A.
During 1992, Raymond entered into an agreement with B.T.
Industries AB ("BT") of Mjolby, Sweden, a European manufacturer
and distributor of lift trucks. Under the agreement, the Company
manufactures a European version of the SWING-REACH(R) truck for
distribution by BT. In addition, the agreement grants BT the
non-exclusive right to distribute this product in other markets
in which the Company currently does not participate.
<PAGE>
In 1994, MCFA signed an agreement with Raymond to purchase for
resale battery powered, electric low lift pallet trucks known as
walkies, similar to those currently manufactured by the Company
for M.H.A. MCFA markets the walkies, using Mitsubishi trademarks
throughout the United States, Canada, Mexico, Central and South
America. Also in 1994, Raymond and MCFA signed an agreement
whereby the Company manufactures a sit-down counterbalanced
electric forklift truck exclusively for sale to MCFA.
In 1994, Raymond entered into an agreement with Jungheinrich
A.G. ("Jungheinrich") of Hamburg, Germany, a large manufacturer
of lift trucks in Europe. Under the agreement, the Company
manufactures a European version of the EASi Orderpicker truck
for distribution by Jungheinrich. In addition, the agreement
grants Jungheinrich the non-exclusive right to distribute this
product in other markets in which the Company currently does not
participate.
During 1994, Raymond formed Dockstocker Corporation, a New York
corporation, owned by Raymond Sales Corporation, a 100% owned
subsidiary of Raymond. Dockstocker Corporation markets and sells
a stand-up end control counterbalanced forklift truck featuring
flexible dockstance operator configuration designed to maximize
loading productivity in the dock environment.
In 1995, Raymond and MCFA entered into another agreement whereby
the Company manufactures and MCFA purchases for resale to end
users certain battery powered, electric orderpickers, straddle
and reach trucks under the Mitsubishi trademark for distribution
in the United States, Canada, Mexico, Central and South America.
Also in 1995, Raymond and Toyota Industrial Equipment
("T.I.E."), a division of Toyota Motor Sales, U.S.A., Inc.,
entered into an agreement whereby the Company manufactures
electric low lift walkie pallet trucks and service parts for
distribution through T.I.E.'s dealer network in the continental
United States.
Raymond initiated a plant modernization plan in 1995 which
includes a major upgrading of production equipment and processes
in its Greene, New York facility. The modernization plan is for
approximately $12 million of capital expenditures and is
expected to be completed by late 1996.
The Company has equity investments in certain members of its
Dealer Network. In 1995, it increased equity investments in
Dealerships with principal offices in Connecticut, Florida,
Massachusetts, New Jersey and North Carolina. In addition to
North America, the Company has Dealers in Central and South
America, Australia and Singapore.
(b) Financial Information about Industry Segments
"Note M - Business Segment Information" on Pages 34 and 35 of
the Financial Summary in the Annual Report to Shareholders for
the year ended December 31, 1995 is incorporated herein by
reference.
<PAGE>
(c) Narrative Description of Business
(i) Principal Products and Services
The Company's products are marketed principally under the
RAYMOND(R) trademark, and fall into the category of unit load
and case pick load handling.
The Company's unit load and case pick load products are
operator-controlled machines used to move a load from point A to
point B. The unit load and case pick load product line includes
orderpickers, walkies, sideloaders, straddle, SWING-REACH(R)
trucks, and REACH-FORK(R) trucks for narrow aisle and very
narrow aisle operation, and counterbalanced PACER(TM) and
DOCKSTOCKER(TM) trucks.
In 1990, a new line of orderpickers with advanced
microprocessor control was introduced by the Company. The
orderpickers significantly reduce the high costs and time
involved to pick orders. Total programmability, through the
intellidrive(R) control system, allows truck performance to be
tailored to each user's needs to optimize productivity. The
intellidrive system utilizes microchip technology developed by
the Company and is designed to replace control systems based
on hydraulic and mechanical technologies. The intellidrive
system enhances the trucks' performance characteristics and
productivity and has allowed the Company to reduce
manufacturing costs through reduced material and labor
expense.
In 1991, the Company introduced a series of products known as
EASi products - Ergonomically Advanced Systems with
intellidrive. This new line of trucks is designed for greater
operator comfort and enhanced productivity. The trucks included
in this series are the operator-up SWING-REACH truck, the
orderpicker and the narrow aisle REACH-FORK truck. The new EASi
REACH-FORK truck has unequaled capacity at elevated heights and
provides greater space utilization and increased productivity.
In 1992, the Company introduced a new base model version of the
orderpicker and REACH-FORK truck.
In 1993, a new generation of the EASi REACH-FORK truck and EASi
Orderpicker were introduced, designed for greater operator
comfort and productivity.
Also in 1993, the Company introduced an option on the EASi
REACH-FORK truck and EASi Orderpicker with the SMARTi(TM)
information system. The SMARTi information system enables the
customer to easily obtain reports on the truck's activities by
shift, day or week to help evaluate productivity.
In addition, two new walkies were introduced in 1993. The 8,000
pound capacity walkie and the transistor-controlled 4,000 pound
capacity walkie are designed to increase productivity.
In 1994, the Company introduced a new walkie handle design to
provide greater operator comfort, convenience and productivity.
The design difference can make repeated movements more
comfortable.
<PAGE>
Also in 1994, two new products were introduced to the EASi
REACH-FORK(R) line featuring upgradeability from 24 volt
operation, and an optional dockstance operator compartment. In
addition, the EASi REACH-FORK family was expanded to include a
four directional truck for use in handling both standard pallets
and long loads, and additional mast selections for very tall
single and double deep reach applications.
In 1995, the dual-drive PACER(TM) stand-up, electric
counterbalanced lift truck was redesigned for improved operator
ergonomics. The steering wheel and travel control were
repositioned to make them easier to reach during forks first and
tractor first facing stances.
Also in 1995, the Company introduced the first reach truck
design which incorporates a Radio Frequency ("RF") terminal,
providing an ergonomic integration of this important
productivity tool with the lift truck. RF communication systems
are used in high throughput distribution operations.
In addition, in 1995 the DOCKSTOCKER(TM) stand-up, end-control
electric counterbalanced trucks and DOCKSTOCKER walkie product
line were introduced. These products feature enhanced technology
and ergonomics.
All of these vehicles, controls and systems are sold through a
network of Dealerships, which have multiple full service
facilities across their trading area and are supported by a
repair and replacement parts service. The Company's replacement
parts and accessories business supports the base of the
Company's lift trucks in service and provides new parts and
service to customers who have service needs for non-Company
equipment. In addition, the Company rebuilds and sells electric
motors and other components for replacement use, offering its
customers a cost-effective alternative to purchasing a new
component for both Company and non-Company equipment.
Raymond Leasing Corporation, a wholly-owned subsidiary of
Raymond, offers lease financing, short-term rentals and sales of
used equipment and serves as a marketing vehicle for the
Company's products by providing the Company's Dealer Network
with flexible leasing programs.
The Company presently manufactures lift truck masts for two
O.E.M. customers.
The product and service categories of the Company's business
segment are shown with percentage of revenues contributed in
"Note M - Business Segment Information" on pages 34 and 35 of
the Financial Summary in the Annual Report to Shareholders for
the year ended December 31, l995, which is incorporated herein
by reference.
(ii) Status of New Products That Have Been Publicly Announced and
Require a Material Investment
There are no new products or industry segments that have been
publicly announced by the Company that will require a material
investment of assets or that are otherwise material. However, as
in prior years, the Company expects to introduce new and
enhanced models through its normal research and development
activities.
<PAGE>
(iii) Sources and Availability of Raw Materials
The Company procures components from the best available sources
of supply, which include a broad range of internal manufacturing
capabilities. Certain components of its products are fabricated
from bar, strip, rod, sheet and plate steel. Individual
decisions to make or buy are based upon numerous factors, the
more significant being quality, cost, lead time and
technological sensitivity.
The Company has no significant long-term commitments with any
supplier and believes its supply arrangements are adequate for
current and presently foreseeable needs. Certain electric
motors, forks, castings, hydraulic and electronic components are
made to Company specifications and are purchased from single
sources. Many single sources are backed up by agreements to
allow manufacture by alternate sources or by the availability of
similar standard components from alternate sources. Continued
effort is made by the Company's Engineering and Purchasing
Departments to establish and improve the strong working
relationships between the Company and its suppliers.
The Company's products vary in capacity, function and load
capability; thus, specifications for a particular order require
that many of the components are only made to orders booked.
Commonly used parts are manufactured or purchased and stocked to
minimize production time. Finished products are normally
assembled only to orders booked. Every effort is made to keep
inventories low, while meeting competitive delivery commitments.
(iv) Importance to the Industry and the Duration of Patents,
Trademarks, Licenses and Concessions
The Company has numerous registered patents in the United
States, Canada and several European countries with respect to
various inventions, including the intellidrive(R) control
system. Although the Company considers that, taken as a whole,
the rights under these patents, which expire from time to time,
are a valuable asset, it does not regard its business as being
materially dependent upon any single patent or any group of
patents.
The Company also has a number of registered and common law
trademarks and service marks for its products. The trade and
service marks, taken as a whole, are considered by the Company
to be important to its business.
(v) Seasonality of Business
The Company does not recognize its business segment or any of
its products or services as seasonal.
(vi) Working Capital Practices
The Company pursues and the industry demands no special business
practices with respect to working capital items.
<PAGE>
(vii) Customers
The Company distributes its products principally through its
Dealer Network. These Dealers sell the Company's products to the
end users, which represent a broad cross-section of industry.
They include public and private businesses engaged in the
manufacture, storage and/or distribution, both wholesale and
retail, of a wide variety of products. These industries include
the grocery, automotive, health care and consumer product
industries.
In 1992, the Company established its National Accounts Program,
which offers to certain large customers a single purchasing and
financing source for their materials handling equipment and
service needs. Delivery, installation and after-sale service are
provided by the Company's Dealer Network. The Program focuses on
fleet users of lift trucks with facilities in several areas of
the country.
No single customer (end user) of the Company accounts for 10% or
more of the Company's total consolidated revenues. However, at
December 31, 1995, lease receivables from one customer
represented approximately 18% of the total investment in leases.
(viii) Backlog
As of December 31, 1995, the backlog of orders aggregated
approximately $65,640,000 compared with a backlog of
approximately $78,119,000 on December 31, 1994. No assurance can
be given that the backlog will continue at any particular level.
The Company reasonably expects to fill the backlog of orders
within the current fiscal year, unless a longer delivery lead
time has been requested by the customer. The Company believes
that its current backlog can generally be considered firm; no
significant cancellations are expected.
(ix) Contracts Subject to Termination or Renegotiation
There is no material portion of the business that is subject to
renegotiation of profits or termination of contracts or
subcontracts at the election of the Government.
(x) Competition
While competitive conditions vary from product to product, all
of the Company's products are marketed in the highly competitive
manufacturing and warehousing materials handling systems
markets. Historically, Raymond's strength has been in providing
technology, superior application, specific product performance,
service and reliability.
The Company is a major competitor in all market segments in
which it participates, generally competing with other major
national and international manufacturers. In addition to these
direct competitors, a number of other products compete
indirectly for the industrial consumer's materials handling
dollars. The Company believes it is the only North American
narrow aisle manufacturer which designs and manufactures its own
vehicle controls. This allows the Company to be a leader in
developing and applying new control technologies, responding
more quickly to user demands and trends, and differentiating its
products with respect to key competitive factors such as
productivity and ergonomics.
<PAGE>
The Company believes it is the only company offering its
comprehensive array of materials handling systems, products and
services to the markets it serves.
Because of the Company's broad product mix, it has no one single
competitor but rather various competitors across the unit load
and case pick load handling category. In recent years, the
Company has introduced a new enhanced line of orderpickers,
reach trucks, SWING-REACH(R) trucks, stand-up, end-control
electric counterbalanced trucks and walkies which have
solidified the Company's position in the unit load and case pick
load handling category. Over time, several manufacturers have
emerged as key competitors in this category, including
U.S.-based Crown Equipment Corporation, Clark Material Handling
Company, a wholly-owned subsidiary of Terex Corporation, and the
Yale Industrial and Hyster subsidiaries of North American Coal
Company.
The Company no longer considers itself a competitor in the
automated storage and retrieval market since its business
activity is now limited to the manufacture of horizontal
carousels for a single O.E.M. customer.
(xi) Research and Development
The cost of the Company's research and development program
amounted to $3,601,000 in 1995 compared to $3,958,000 in 1994
and $4,251,000 in 1993. The Company works closely with customers
in the development of product application to fulfill a
particular materials handling requirement.
(xii) Compliance with Environmental Laws and Regulations
The Company's production facilities and operations are subject
to a variety of federal, state and local environmental and job
safety laws and regulations, including various federal, state
and local laws, ordinances and regulations pursuant to which an
owner of real property may become liable for the costs of
removal or remediation of certain hazardous or toxic substances
located on or in such property. Environmental laws often impose
liability without regard to whether the owner knew of, or was
responsible for, the presence of such hazardous or toxic
substances. The presence of such substances, or the failure to
remediate the presence of such substances properly, may
adversely affect the owner's ability to sell such real estate or
to borrow using such real estate as collateral. In particular,
the federal Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA") imposes joint and several liability
for clean-up and enforcement costs, without regard to fault or
to the legality of the original conduct, on current or
predecessor owners or operators of a site. Under CERCLA, an
owner or operator of the site may be liable for all or part of
the costs to clean up sites at which waste has been released by
the owners, the owner's lessees, or by predecessor or successor
owners. In addition, liability extends to persons/companies
which generated the hazardous substances located on the
property, or arranged for disposal of such substances. The
Company believes that it is in compliance in all material
respects with all relevant federal, state and local rules and
regulations and regulations regarding hazardous or toxic
substances. No assurances, however, can be given that the
Company is aware of all potential environmental liabilities, or
that there are not material environmental liabilities of which
the Company is not aware.
<PAGE>
(xiii) Employees
The Company had 1,507 employees on December 31, 1995.
(d) Financial Information about Foreign and Domestic Operations
and Export Sales
(1) "Note M - Business Segment Information" on Pages 34 and 35
of the Financial Summary in the Annual Report to Shareholders
for the Year ended December 31, 1995 is incorporated herein by
reference.
(2) The Company has no extraordinary risks attendant to its
foreign operations.
Item 2. Properties
The Company's corporate headquarters and main manufacturing
facility, made of steel and masonry construction, are located in
an approximately 70,000 square foot office building and
approximately 325,000 square foot adjacent plant in Greene, New
York, both of which are owned by the Company. Currently, the
Greene manufacturing facility is undergoing a $12 million
modernization plan which addresses both the manufacturing
processes and the information system processes.
Expansion was completed in 1994 on a modern 138,000 square foot
steel and masonry manufacturing and office building the Company
owns in Brantford, Ontario, Canada.
The Company owns a modern one-story facility located in East
Syracuse, New York which houses the Company's Parts Distribution
Center. The facility, made of steel and masonry construction,
contains approximately 61,000 square feet of warehouse and
office space.
The Company currently leases approximately 10,301 square feet of
space from The Greene Central School District in Greene, New
York for use as a training center. The lease, for a five year
period, expires December 2000.
Raymond Leasing Corporation, a 100% owned subsidiary of Raymond,
leases approximately 35,600 square feet of space from WJW
Associates, Ltd. in Dewitt, New York for use as office space,
warehousing of rental fleet and repair and maintenance shop.
All of the Company's properties and machinery are believed to
be well maintained and in good condition. With the completion
of the modernization plan at the Greene facility, the Company
estimates that its production capacity will be adequate for
the business anticipated during the next three or four years.
<PAGE>
Item 3. Legal Proceedings
The Company is currently defending approximately 70 products
liability and similar lawsuits involving industrial accidents.
Management believes that none of these will individually have
a material adverse effect on the Company. Taken as a whole,
the damages claimed would have a material adverse effect on
the Company but actual costs of judgments, settlements and
costs of defense have not had such an effect to date. The
Company views these actions, and related expenses of
administration, litigation and insurance, as part of the
ordinary course of its business. The Company uses a
combination of self-insured retention and insurance, paid for
in part by its Dealers, to manage these risks and believes
that the insurance coverage and reserves established for
self-insured risks are adequate. The Company's Dealers
contribute to the funding of the Company's products liability
program and, in turn, the Company indemnifies the Dealers
against products liability expense and manages products
liability claims. The Company has a policy of aggressively
defending these lawsuits which generally take several years to
ultimately resolve.
The Company is also one of fourteen remaining defendants in a
private environmental lawsuit. The five plaintiffs in the case
are Cooper Industries, Inc., Keystone Consolidated Industries,
Inc., The Monarch Machine Tool Co., Niagara Mohawk Power
Corporation and Overhead Door Corporation. Plaintiffs have been
ordered by the United States Environmental Protection Agency
("EPA") to perform a Remedial Investigation/Feasibility Study
("RI/FS") with respect to a 20 acre site located in Cortland,
New York and remediate the site. Plaintiffs are seeking
contribution from each of the defendants. The RI/FS has been
completed by the plaintiffs and submitted to the EPA for
approval. The plaintiffs expect the EPA to issue a Record of
Decision by the middle of 1996. The EPA decision will define the
scope of the remediation required and is expected to narrow the
issues in the private party litigation. Pretrial factual
discovery on the plaintiffs' claims against each defendant has
been completed. Expert discovery is expected to continue through
1996. The site involved in the litigation was a manufacturing
site for many years prior to 1971. From 1971 to 1985, a scrap
metal processing operation was conducted at the site. From 1975
to 1982, the owners of the scrap metal processing operation
purchased scrap metal from the Company. The plaintiffs have
alleged that the scrap metal purchased from the Company was
hazardous and/or was coated with certain solvents and/or
cutting oils. Plaintiffs have the burden of proving the nature
and extent of the Company's contribution to the site as well as
the burden of proving what portion of the material delivered to
the site was "hazardous" as that term is defined in the
environmental statutes. The Company is aggressively defending
the claim and does not believe it is likely to have a material
adverse effect on the Company.
In addition to the matters discussed above, the Company is
subject to various other legal proceedings, claims and
liabilities which have arisen in the ordinary course of its
business. In the opinion of management, the amount of ultimate
liability, if any, with respect to these actions will not
materially affect the financial results of operations or
financial position of the Company.
Item 4. Submission of Matters to a Vote of Security Holders
During the fourth quarter of 1995, no matter was submitted to
a vote of security holders.
<PAGE>
ADDITIONAL INFORMATION REQUIRED IN PART I:
Executive Officers of the Registrant
The names, ages and positions of all the Executive Officers of
the Company, as of March 15, 1996, are listed below together
with their business experience during the past five years.
Officers are elected annually by the Board of Directors. There
are no family relationships among these officers or any
Director or Executive Officer of the Company, nor any
arrangement or understanding between any officer and any other
person pursuant to which the officer was elected. Certain
Executive Officers of Raymond are also officers of Raymond's
principal subsidiaries.
<TABLE>
<CAPTION>
<S> <C> <C>
Name and Position Age Business Experience
----------------- --- --------------------
Ross K. Colquhoun 65 Appointed Chairman of the
----------------- Board and Chief Executive
Chairman of the Board, Chief Officer in 1995; Appointed and
Executive Officer and Director elected Chief Executive Officer prior
to 1991; Formerly President from
1987-1995.
James J. Malvaso 45 Appointed President and Chief
---------------- Operating Officer in 1995;
President and Chief Operating Appointed and elected Vice
Officer President-Operations in 1993;
Vice President of Operations
of Pfaudler-U.S. Inc.(1990-
1993), a leading manufacturer
of glass-lined reactors,
pressure vessels and
accessories with revenues in
excess of $130 million.
William B. Lynn 50 Appointed and elected
--------------- Executive Vice President
Executive Vice President in 1994; Formerly Vice
Principal Financial Officer President-Finance from 1984-
1994.
James B. Bennett, III 55 Appointed Vice President-
--------------------- Sales and Dealer Develop-
Vice President-Sales and ment in 1995; 1994-present,
Dealer Development Vice President and General
Manager of Dockstocker
Corporation, a wholly-owned
subsidiary of Raymond Sales
Corporation; President from
1992-1993, and Vice President
from 1983-1992, of Clark
Material Handling Company.
Clark Material Handling
Company, a manufacturer of
materials handling equipment,
is a wholly-owned subsidiary
of Terex Corporation.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
James W. Davis 50 Appointed Vice President-
-------------- Engineering prior to 1991 and
Vice President-Engineering elected in 1991.
Jerome R. Dinn 53 Appointed Vice President-
-------------- National Accounts in 1995;
Vice President-National Accounts Appointed Vice President-
Sales & Quality prior to 1991
and elected in 1991.
John F. Everts 37 Appointed and elected
-------------- Corporate Controller prior to
Corporate Controller 1991.
Margaret L. Gallagher 48 Appointed and elected Vice
--------------------- President-Marketing prior to
Vice President-Marketing 1991.
Patrick J. McManus 41 Appointed and elected
------------------ President, Raymond Leasing
President,Raymond Leasing Corporation prior to 1991;
Corporation Raymond Leasing Corporation
is a wholly-owned leasing
subsidiary of the Company;
Treasurer from 1990-1995.
William L. O'Mara 36 Appointed Treasurer in 1995;
----------------- Appointed and elected Assistant
Treasurer Treasurer prior to 1991.
Paul J. Sternberg 62 Appointed and elected Vice
----------------- President in 1992; Appointed
Vice President, and elected General Counsel
General Counsel & and Secretary in 1991.
Secretary
</TABLE>
<PAGE>
PART II
Item 5. Market for the Company's Common Stock and Related Security
Holder Matters
Common Stock Market Prices and Dividends and related
securities matters, as discussed on Pages 1, 14, 15, 19, 31,
36 and 38 of the Annual Report to Shareholders for the year
ended December 31, 1995, included in this Form 10-K Annual
Report as Exhibit 13 are incorporated herein by reference.
Item 6. Selected Financial Data
Selected Financial Data of The Raymond Corporation and
consolidated subsidiaries, reported on Pages 14 and 15 of the
Financial Summary in the Annual Report to Shareholders for the
year ended December 31, 1995, included in this Form 10-K Annual
Report as Exhibit 13 are incorporated herein by reference.
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations
Management's Discussion and Analysis of Financial Condition and
Results of Operations on Pages 16 through 20 of the Financial
Summary in the Annual Report to Shareholders for the year ended
December 31, 1995, included in this Form 10-K Annual Report as
Exhibit 13 are incorporated herein by reference.
Item 8. Financial Statements and Supplementary Data
The consolidated Financial Statements of The Raymond Corporation
included on Pages 21 through 36 of the Financial Summary in the
Annual Report to Shareholders for the year ended December 31,
1995, included in this Form 10-K Annual Report as Exhibit 13 are
incorporated herein by reference.
Quarterly Results of Operations on Page 36, Note O of the
Financial Summary in the Annual Report to Shareholders for the
year ended December 31, 1995, included in this Form 10-K
Annual Report as Exhibit 13 is incorporated herein by
reference.
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure
Not applicable.
<PAGE>
PART III
Item 10. Directors and Executive Officers of the Registrant
Information regarding Directors required by Items 401 and 405 of
Regulation S-K is disclosed under the captions "Nominees for
Election as Directors" and "Directors Continuing in Office" in
the Proxy Statement for the Annual Meeting of Shareholders to be
held May 4, 1996 included as Exhibit 99 hereto, and is
incorporated herein by reference. Information regarding
Executive Officers is included in Part I of this Form 10-K and
incorporated herein by reference thereto.
Item 11. Executive Compensation
Information regarding compensation of Directors and Executive
Officers is disclosed under the captions "Directors
Remuneration; Attendance" and "Executive Compensation" of the
Proxy Statement for the Annual Meeting of Shareholders to be
held May 4, 1996, included as Exhibit 99 hereto, and is
incorporated herein by reference thereto.
Item 12. Security Ownership of Certain Beneficial Owners and Management
This information is disclosed under the captions "Security
Ownership of Certain Beneficial Owners" and "Security Ownership
of Management" in the Proxy Statement for the Annual Meeting of
Shareholders to be held on May 4, 1996 included as Exhibit 99
hereto, and is incorporated herein by reference thereto.
Item 13. Certain Relationships and Related Transactions
This information is disclosed in the 1996 Proxy Statement for
the Annual Meeting of Shareholders in the section captioned
"Certain Relationships and Related Transactions" included as
Exhibit 99 hereto, and is incorporated herein by reference
thereto.
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K
(a) Documents filed as part of this report:
1. The following financial statements of the Registrant and
its subsidiaries, presented on pages 21 to 36 of the
Registrant's Financial Summary in the 1995 Annual Report
to Shareholders, which is filed with this Form 10-K Annual
Report as Exhibit 13, are incorporated herein by
reference.
<TABLE>
<CAPTION>
Annual
Report Page
-----------
<S> <C>
The Raymond Corporation and Subsidiaries:
Report of Independent Auditors 21
Consolidated Balance Sheets
December 31, 1995, 1994, 1993 22-23
Consolidated Statements of Income - Years ended
December 31, 1995, 1994, 1993 24
Consolidated Statements of Shareholders' Equity -
Years ended December 31, 1995, 1994, 1993 25
Consolidated Statements of Cash Flows - Years
ended December 31, 1995, 1994, and 1993 26-27
Notes to Consolidated Financial Statements 28-36
</TABLE>
2. The following Consolidated Financial Statement Schedules of
The Raymond Corporation and Subsidiaries are required by Item
14(d):
<TABLE>
<CAPTION>
10-K
Report Page
-----------
<S> <C>
Schedule I - Condensed Financial Information
of Registrant - The Raymond Corporation
Years ended December 31, 1995,
1994, 1993 21-26
Schedule II Valuation and Qualifying Accounts
Years ended December 31, 1995,
1994, 1993 27-29
</TABLE>
<PAGE>
All other schedules for which provision is made in Regulation
S-X of the Securities and Exchange Commission have been omitted
because they are not applicable or not required under the
related instructions or because the information has been
furnished elsewhere in the financial statements.
3. See Exhibit Index at pages 17-19 of this Form 10-K.
(b) No report on Form 8-K was filed by the registrant during the
fourth quarter of its fiscal year ending December 31, 1995.
<PAGE>
Exhibit
# Description
- ------- -----------
3.1 Restated and Amended Certificate of Incorporation of The
Raymond Corporation.
3.2 Bylaws of the Company, as amended, dated December 14, 1995.
4.2 Form of Indenture between the Company and The Chase Manhattan
Bank, N.A., as Trustee, and the 6.50% Convertible Subordinated
Debenture due 2003, incorporated herein by reference to
Registration Statement on Form S-3, Registration No. 33-71480,
effective November 12, 1993.
10.1 Joint Venture Agreement dated August 1, 1991 between
Caterpillar Industrial Inc., and The Raymond Corporation.
Filed as Exhibit 10.18 to the 1991 Form 10-K Annual Report of
the Company and incorporated herein by reference.
10.2 First Amendment to Joint Venture Agreement dated August 1,
1991 between Caterpillar Industrial Inc. and The Raymond
Corporation dated October 22, 1992. Filed as Exhibit 10.18 to
the 1992 Form 10-K Annual Report of the Company and
incorporated herein by reference.
10.3 Second Amendment to Joint Venture Agreement dated August 1,
1991 between Caterpillar Industrial Inc. and The Raymond
Corporation. Filed as Exhibit 10.3 to the 1994 Form 10-K
Annual Report of the Company and incorporated herein by
reference.
10.4 Third Amendment to Joint Venture Agreement dated August 1,
1991 between Caterpillar Industrial Inc. and The Raymond
Corporation. Filed as Exhibit 10.4 to the 1994 Form 10-K
Annual Report of the Company and incorporated herein by
reference.
10.5 Revolving Credit and Term Loan Agreement dated December 21,
1994 among The Raymond Corporation, Raymond Leasing
Corporation and Chemical Bank. Filed as Exhibit 10.5 to the
1994 Form 10-K Annual Report of the Company and incorporated
herein by reference.
10.6 Revolving Credit and Term Loan Agreement dated February 14,
1995 among The Raymond Corporation, Raymond Leasing
Corporation and The Chase Manhattan Bank, N.A. Filed as
Exhibit 10.6 to the 1994 Form 10-K Annual Report of the
Company and incorporated herein by reference.
10.7 Raymond Leasing Corporation Senior Note Agreement dated as of
November 1, 1991. Filed as Exhibit 10.22 to the 1992 Form 10-K
Annual Report of the Company and incorporated herein by
reference.
10.8 Revolving Credit and Term Loan Agreement dated as of September
1, 1995 among The Raymond Corporation, Raymond Leasing
Corporation and Marine Midland Bank.
10.9 Revolving Credit and Term Loan Agreement dated as of September
22, 1995 among The Raymond Corporation, Raymond Leasing
Corporation and Manufacturers and Traders Trust Company.
<PAGE>
Exhibit
# Description
- ------- -----------
10.10 Credit Agreement dated November 27, 1995 among The Raymond
Corporation, Raymond Leasing Corporation and Corestates Bank,
N.A.
11. Statement Re: Computation of Per Share Earnings.
13. Annual Report to Shareholders for the year ended December 31,
1995.
18. Letter dated February 7, 1992 from Ernst & Young re: change in
accounting principles. Filed as Exhibit 18 to the 1991 Form
10-K Annual Report of the Company and incorporated herein by
reference.
19. Filed Form 8 Report dated September 11, 1992. Filed as Exhibit
19 to the 1992 Form 10-K Annual Report of the Company and
incorporated herein by reference.
21. Subsidiaries (Direct and Indirect) of The Raymond Corporation
for the year ending December 31, 1995.
23. Consent of Independent Auditors dated March 27, 1996.
24. Power of Attorney of Directors dated March 2, 1996.
27. Financial Data Schedule.
99. The Company's 1996 Proxy Statement for the Annual Meeting of
Shareholders to be held on May 4, 1996.
<PAGE>
EXECUTIVE COMPENSATION PLANS AND ARRANGEMENTS
Exhibit
# Description
- ------- -----------
10.11 Consulting Agreement effective as of January 2, 1996 between
Christian D. Gibson and The Raymond Corporation.
10.12 Consulting Agreement dated February 29, 1996 between George G.
Raymond, Jr. and The Raymond Corporation.
10.13 Employment Agreement dated as of November 3, 1987 between Ross
K. Colquhoun and The Raymond Corporation.
10.14 Amendment #1 to Employment Agreement effective January 1, 1994
between Ross K. Colquhoun and The Raymond Corporation. Filed
as Exhibit 10.13 to the 1994 Form 10-K Annual Report of the
Company and incorporated herein by reference.
10.15 Amendment #2 to Employment Agreement effective November 1,
1995 between Ross K. Colquhoun and The Raymond Corporation.
10.16 Sample form of Employment Agreement between The Raymond
Corporation and Company Vice Presidents. Filed as Exhibit 10.8
to the 1991 Form 10-K Annual Report of the Company and
incorporated herein by reference.
10.17 The Raymond Corporation Retirement Benefits Equalization Plan.
10.18 The Raymond Corporation Stock Option Plan (1995).
10.19 Merrill Lynch Special Prototype Defined Contribution Plan
Adoption Agreement.
10.20 The Raymond Corporation Deferred Compensation Plan for Exempt
Employees restated as of September 1, 1994, amended as of
December 14, 1995.
10.21 The Raymond Corporation Officer Performance Bonus Plan
Formula. Filed as Exhibit 10.15 to the 1992 Form 10-K Annual
Report of the Company and incorporated herein by reference.
10.22 Profit Sharing Retirement Plan of The Raymond Corporation,
Plan A, dated January 1, 1976, amended as of March 2, 1996.
10.23 Profit Sharing Retirement Plan for Salaried Employees of The
Raymond Corporation, Plan B, dated January 1, 1976, amended as
of March 2, 1996.
10.24 The Raymond Corporation Pension Plan effective January 1,
1996.
10.25 The Raymond Corporation Benefit and Welfare Plan effective as
of January 1, 1996.
<PAGE>
THE RAYMOND CORPORATION AND SUBSIDIARIES
SCHEDULE I - Condensed Financial Information of Registrant
- The Raymond Corporation
Years ended December 31, 1995, 1994 and 1993
Condensed Balance Sheets
- ------------------------
<TABLE>
<CAPTION>
December 31,
-----------------------------------------------
1995 1994 1993
-----------------------------------------------
<S> <C> <C> <C>
Assets
Current Assets
Cash $ 759,712 $ 4,081,322 $ 23,288,779
Accounts Receivable (including
$18,727,995, $12,132,856 and
$10,783,692 due from unconsolidated
investees in 1995, 1994 and 1993,
respectively) less allowances
($1,718,651 in 1995, $986,093 in 1994
and $658,573 in 1993). 30,685,950 34,554,193 24,020,182
Inventories 29,453,674 25,513,226 20,881,441
Other Current Assets 2,801,298 2,453,898 2,391,774
------------- ------------- -------------
Total Current Assets 63,700,634 66,602,639 70,582,176
Property, Plant & Equipment 41,466,806 36,944,902 34,614,998
Allowance for Depreciation (24,845,922) (24,622,493) (23,157,955)
------------- ------------- -------------
16,620,884 12,322,409 11,457,043
Investment in and Advances to
Wholly-owned Subsidiaries and
Unconsolidated Investees, at equity 107,801,894 101,180,813 71,840,705
Other Assets 3,943,511 4,360,714 4,710,396
------------- ------------- -------------
Total Assets $ 192,066,923 $ 184,466,575 $ 158,590,320
============= ============= =============
</TABLE>
The accompanying notes are a part of the financial statements.
<PAGE>
THE RAYMOND CORPORATION AND SUBSIDIARIES
SCHEDULE I - Condensed Financial Information of Registrant
- The Raymond Corporation
Years ended December 31, 1995, 1994 and 1993
Condensed Balance Sheets
- ------------------------
<TABLE>
<CAPTION>
December 31,
-------------------------------------------
1995 1994 1993
-------------------------------------------
<S> <C> <C> <C>
Liabilities and Shareholders' Equity
Current Liabilities $ 34,097,486 $ 41,574,752 $ 24,400,522
Long-term Debt (Note B) 51,260,000 57,500,000 57,500,000
Other Liabilities 5,375,199 4,392,108 3,637,085
Shareholders' Equity
Common Stock 10,650,666 9,546,332 9,072,866
Other Shareholders' Equity 90,683,572 71,453,383 63,979,847
------------ ------------ ------------
Total Shareholders' Equity 101,334,238 80,999,715 73,052,713
------------ ------------ ------------
Total Liabilities and
Shareholders' Equity $192,066,923 $184,466,575 $158,590,320
============ ============ ============
</TABLE>
The accompanying notes are a part of the financial statements.
<PAGE>
THE RAYMOND CORPORATION AND SUBSIDIARIES
SCHEDULE I - Condensed Financial Information of Registrant
- The Raymond Corporation
Years ended December 31, 1995, 1994 and 1993
Condensed Statements of Income
- ------------------------------
Years Ended
December 31,
-------------------------------------------
1995 1994 1993
-------------------------------------------
Net Sales $169,507,696 $142,333,992 $104,674,179
Other Income, Net 9,122,514 7,872,226 4,263,995
------------ ------------ ------------
Total Revenues 178,630,210 150,206,218 108,938,174
Cost of Sales 135,066,815 113,340,243 82,096,813
Selling, General and
Administrative Expenses (Includes
Research & Development costs of
$3,601,000 in 1995, $3,958,000 in
1994 and $4,251,000 in 1993) 34,972,693 28,479,361 24,313,057
Interest Expense 3,694,630 3,926,796 1,557,297
------------ ------------ ------------
Total Cost of Sales and Expenses 173,734,138 145,746,400 107,967,167
Income Before Taxes and
Equity in Earnings of Wholly-
owned Subsidiaries and
Unconsolidated Investees 4,896,072 4,459,818 971,007
Income Tax Expense 1,902,413 1,796,883 428,657
Equity in Net Income of Wholly-
owned Subsidiaries and
Unconsolidated Investees 10,080,276 7,064,336 4,464,463
------------ ------------ ------------
Net Income $ 13,073,935 $ 9,727,271 $ 5,006,813
============ ============ ============
The accompanying notes are a part of the financial statements.
<PAGE>
THE RAYMOND CORPORATION AND SUBSIDIARIES
SCHEDULE I - Condensed Financial Information of Registrant
- The Raymond Corporation
Years ended December 31, 1995, 1994 and 1993
Condensed Statements of Cash Flow
- ---------------------------------
<TABLE>
<CAPTION>
Years Ended
December 31,
-----------------------------------------------
1995 1994 1993
-----------------------------------------------
<S> <C> <C> <C>
Net Cash Provided by (Used For)
Operating Activities $ 236,890 $ 6,019,696 ($ 4,029,263)
Cash Flows from Investing Activities
Additions to Property, Plant and
Equipment (6,806,129) (2,972,384) (2,603,489)
Proceeds from Sales of
Property, Plant and Equipment 22,248 7,750 136,336
Investments in and Advances to Wholly-
owned Subsidiaries and
Unconsolidated Investees 3,123,802 (22,383,741) (10,198,517)
------------ ------------ ------------
Net Cash Used For
Investing Activities (3,660,079) (25,348,375) (12,665,670)
Cash Flows from Financing Activities
Repayment of Long-Term Debt 0 0 (38,812,500)
Cash Dividends Paid 0 0 0
Capital Stock Transactions, Net 101,579 121,222 (213,238)
Proceeds from Long-Term Debt 0 0 78,500,000
------------ ------------ ------------
Net Cash Provided by
Financing Activities 101,579 121,222 39,474,262
(Decrease) Increase in Cash (3,321,610) (19,207,457) 22,779,329
Cash Balance at January 1, 4,081,322 23,288,779 509,450
------------ ------------ ------------
Cash Balance at December 31, $ 759,712 $ 4,081,322 $ 23,288,779
============ ============ ============
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
Noncash activities:
Common stock issued for conversion
of debentures $6,240,000 --- ---
</TABLE>
The accompanying notes are part of the financial statements.
<PAGE>
THE RAYMOND CORPORATION AND SUBSIDIARIES
SCHEDULE I - Condensed Financial Information of Registrant
- The Raymond Corporation
Years ended December 31, 1995, 1994 and 1993
Notes to Condensed Financial Statements
- ---------------------------------------
NOTE A - Basis of Presentation
In the parent company-only financial statements, the Company's investment in
subsidiaries and unconsolidated investees is stated at cost plus equity in
undistributed earnings of the subsidiaries and unconsolidated investees since
the date of acquisition. Parent company-only financial statements should be read
in conjunction with the Company's consolidated financial statements.
NOTE B - Long-Term Debt
<TABLE>
<CAPTION>
1995 1994 1993
----------- ----------- -----------
<S> <C> <C> <C>
6.5% convertible subordinated debentures
due December 15, 2003. Interest is
payable semi-annually. $51,260,000 $57,500,000 $57,500,000
=========== =========== ===========
</TABLE>
The 6.5% convertible subordinated debentures are convertible into shares of
common stock at a rate adjusted for stock dividends of approximately 59.27
shares for each $1,000 principal amount of debentures. These debentures are
redeemable at prices ranging from 103.5% of principal to par depending upon the
redemption date. The debentures are convertible at any time prior to maturity
and are redeemable any time on or after December 15, 1996, in whole or in part,
at the option of the Company. In the third quarter of 1995, approximately $6.2
million of the Company's convertible subordinated debentures were converted into
369,868 shares of common stock at the original stated conversion rate adjusted
for stock dividends.
<PAGE>
THE RAYMOND CORPORATION AND SUBSIDIARIES
SCHEDULE I - Condensed Financial Information of Registrant
- The Raymond Corporation
Years ended December 31, 1995, 1994 and 1993
Notes to Condensed Financial Statements (cont'd)
- -------------------------------------------------
NOTE C - Guarantee
Raymond Leasing Corporation, a wholly-owned subsidiary of the Company, has an
$8,000,000 long-term debt obligation outstanding at December 31, 1995. Under
terms of the debt agreement, the Company has guaranteed the payment of all
principal and interest.
NOTE D - Dividends from Subsidiaries and Investees
Cash dividends paid to The Raymond Corporation from unconsolidated investees
accounted for under the equity method were $335,393 in 1995, $107,969 in 1994
and $682,208 in 1993. Cash dividends paid to The Raymond Corporation by
subsidiaries were $0 in 1995 and 1994 and $334,000 in 1993.
<PAGE>
THE RAYMOND CORPORATION AND SUBSIDIARIES
SCHEDULE II-VALUATION AND QUALIFYING ACCOUNTS
Year Ending December 31, 1995
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
COL. A COL. B COL. C COL. D COL. E
- -------------------- ---------- -------------------------------- ----------------- ----------
Additions
--------------------------------
(1) (2)
Balance at Charged to Charged Deductions Balance at
Beginning Costs and to Other from Close
Description Of Period Expenses Accounts Reserve Of Period
- -------------------- ---------- ----------- -------------- ----------------- ----------
Reserve and allowances deducted from asset accounts:
Allowance for doubtful
accounts & losses on
investment in leases $2,214,881 $1,399,000 $112,324 -B $3,501,557
========== =========== =========== ===========
Reserves reported in accrued liabilities:
Service agreements $2,443,168 $6,902,683 $5,720,096 -A $3,625,755
Insurance reserves 6,053,159 7,567,802 5,897,226 -C 7,723,735
---------- ----------- ----------- -----------
$8,496,327 $14,470,485 $11,617,322 $11,349,490
========== =========== =========== ===========
</TABLE>
A - Warranty & maintenance costs charged against reserve.
B - Bad debt write-offs charged against reserve.
C - Insurance costs charged against reserve.
<PAGE>
THE RAYMOND CORPORATION AND SUBSIDIARIES
SCHEDULE II-VALUATION AND QUALIFYING ACCOUNTS
Year Ending December 31, 1994
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
COL. A COL. B COL. C COL. D COL. E
- -------------------- ---------- -------------------------------- ----------------- ----------
Additions
--------------------------------
(1) (2)
Balance at Charged to Charged Deductions Balance at
Beginning Costs and to Other from Close
Description Of Period Expenses Accounts Reserve Of Period
- -------------------- ---------- ----------- -------------- ----------------- ----------
Reserve and allowances deducted from asset accounts:
Allowance for doubtful
accounts & losses on
investment in leases $1,727,740 $1,079,908 $592,767 -B $2,214,881
========== ========== ========== ==========
Reserves reported in accrued liabilities:
Service agreements $1,737,219 $4,612,619 $3,906,670 -A $2,443,168
Insurance reserves 4,764,346 6,527,819 5,239,006 -C 6,053,159
---------- ---------- ---------- ----------
$6,501,565 $11,140,438 $9,145,676 $8,496,327
========== ========== ========== ==========
</TABLE>
A - Warranty & maintenance costs charged against reserve.
B - Bad debt write-offs charged against reserve.
C - Insurance costs charged against reserve.
<PAGE>
THE RAYMOND CORPORATION AND SUBSIDIARIES
SCHEDULE II-VALUATION AND QUALIFYING ACCOUNTS
Year Ending December 31, 1993
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
COL. A COL. B COL. C COL. D COL. E
- -------------------- ---------- -------------------------------- ----------------- ----------
Additions
--------------------------------
(1) (2)
Balance at Charged to Charged Deductions Balance at
Beginning Costs and to Other from Close
Description Of Period Expenses Accounts Reserve Of Period
- -------------------- ---------- ----------- -------------- ----------------- ----------
Reserve and allowances deducted from asset accounts:
Allowance for doubtful
accounts & losses on
investment in leases $1,239,427 $646,984 $158,671 -B $1,727,740
========== =========== =========== ===========
Reserves reported in accrued liabilities:
Service agreements $1,380,973 $3,597,039 $3,240,793 -A $1,737,219
Insurance reserves 4,161,786 7,382,545 6,779,985 -C 4,764,346
---------- ----------- ----------- -----------
$5,542,759 $10,979,584 $10,020,778 $6,501,565
========== =========== =========== ===========
</TABLE>
A - Warranty & maintenance costs charged against reserve.
B - Bad debt write-offs charged against reserve.
C - Insurance costs charged against reserve, including for the first time the
activity of self-insured retention for workers' compensation.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
Date: March 28, 1996 THE RAYMOND CORPORATION
------------------------
(Registrant)
By: /s/ Ross K. Colquhoun
Ross K. Colquhoun
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed by the following persons on behalf of the Registrant and in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
By: /s/ Ross K. Colquhoun By: /s/ James J. Malvaso By: /s/ William B. Lynn
------------------------- ------------------------ --------------------------
Ross K. Colquhoun James J. Malvaso William B. Lynn
Chairman of the Board, Chief President, Chief Operating Executive Vice President
Executive Officer and Director Officer and Director Principal Financial Officer
Date: 03/28/96 Date: 03/28/96 Date: 03/28/96
By: /s/ John F. Everts
--------------------
John F. Everts
Corporate Controller
Date: 03/28/96
By: /s/ James F. Matthews By: /s/ Arthur M. Richardson
--------------------------- ------------------------------
James F. Matthews, Director Arthur M. Richardson, Director
Date: 03/28/96 Date: 03/28/96
By: /s/ John E. Mott By: /s/ M. Richard Rose
--------------------------- ------------------------------
John E. Mott, Director M. Richard Rose, Director
Date: 03/28/96 Date: 03/28/96
By: /s/ Michael R. Porter By: /s/ John V. Sponyoe
--------------------------- ------------------------------
Michael R. Porter, Director John V. Sponyoe, Director
Date: 03/28/96 Date: 03/28/96
By: /s/ George G. Raymond, Jr. By: /s/ Michael O. Womack
--------------------------- ------------------------------
George G. Raymond, Jr. Michael O. Womack, Director
Date: 03/28/96 Date: 03/28/96
</TABLE>
<PAGE>
EXHIBIT 3.1
RESTATED AND AMENDED CERTIFICATE OF INCORPORATION
-------------------------------------------------
OF
--
THE RAYMOND CORPORATION
-----------------------
FIRST:
The name of the corporation shall be The Raymond Corporation.
SECOND:
The purposes for which it is to be formed are:
To manufacture, obtain, use and operate under license or otherwise and
to sell, license, continue to manufacture or use, lease or otherwise acquire,
use or in any manner dispose of any and all kinds of equipment, devices,
machines or machinery, motors, and appurtenances relating to or useful in
domestic, industrial, manufacturing, mercantile, agricultural and other
pursuits; also metal, electrical and mechanical specialties and machines,
appliances, utilities, devices, implements, instruments and apparatus of every
kind and nature and any other articles of commerce relating to or useful in a
thoroughly equipped plant, machine shop, factory, foundry, laboratory or
commercial establishment; and more particularly to manufacture, buy, sell,
repair, alter and generally deal in, devices, machines, machinery and equipment
of every kind and nature for the handling of materials.
To design, manufacture, buy, sell, make repair, alter, let or hire, and
deal in, apparatus, machines, machinery, and supplies and accessories therefore
useful in many business herein mentioned.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation engaged in the same or similar business.
To acquire, hold, use, sell, assign, lease, grant licenses in respect
of, mortgage, or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trademarks and trade names, relating to
or useful in connection with any business of this corporation.
<PAGE>
To purchase, hold, sell, assign, transfer, mortgage, pledge or
otherwise dispose of shares of the capital stock of, or any bonds, securities or
evidences of indebtedness created by any other corporation or corporations
organized under the laws of this state or any other state, country, nation or
government, and while the owner thereof to exercise all the rights, powers and
privileges of ownership.
To issue bonds, debentures, or obligations of this corporation from
time to time, for any of the objects or purposes of the corporation, and to
secure the same by mortgage, pledge, deed of trust, or otherwise.
To purchase, hold, sell and transfer the shares of its own capital
stock; provided it shall not use its funds or property for the purchase of its
own shares of capital stock when such use would cause any impairment of its
capital except as otherwise permitted by law; and provided further that shares
of its own capital stock belonging to it shall not be, voted upon directly or
indirectly.
To have one or more offices, to carry on all or any of its operations
and business and without restriction or limit as to amount to purchase or
otherwise acquire, hold, own, mortgage, sell, convey, or otherwise dispose of
real and personal property of every class and description in any of the states,
districts or territories of the United States, and in any and all foreign
countries, subject to the laws of such state, district, territory or country.
In general, to carry on any other similar business in connection with
the foregoing, and to have and exercise all the powers conferred by the laws of
New York upon corporations formed under the act hereinbefore referred to, and to
do any or all of the things hereinbefore set forth to the same extent as natural
persons might or could do.
The foregoing clauses shall be construed both as objects and powers,
and it is hereby expressly provided that the foregoing enumeration of specific
powers shall not be held to limit or restrict in any manner the powers of this
corporation.
-2-
<PAGE>
THIRD:
(A) The amount of capital stock shall be $22,500,000, which
shall consist of Fifteen Million (15,000,000) shares of common stock having a
par value of $1.50 per share.
(B) No holder of any of the shares of the capital stock of the
Corporation shall be entitled as of right to purchase or to subscribe for any
unissued stock of any class, or any additional shares of any class, to be issued
by reason of any increase of the authorized capital stock of the Corporation of
any class, or bonds, certificates of indebtedness, debentures, or other
securities convertible into stock of the Corporation or carrying any right to
purchase stock of any class, but any such unissued stock, or such additional
authorized issue of any stock, or of other securities convertible into stock or
carrying any right to purchase stock, may be issued and disposed of, pursuant to
resolutions of the Board of Directors, to such persons, firms, corporations, or
associations and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its discretion.
FOURTH:
The principal office of the corporation shall be located in the Village
of Greene, County of Chenango, State of New York, and the address to which the
Secretary of State shall mail a copy of process in any action or proceeding
against the corporation which may be served upon him in Greene, New York.
FIFTH:
The duration of the corporation shall be perpetual.
SIXTH:
The number of Directors of the Corporation shall not be less than nine
(9) nor more than thirteen (13). The Board of Directors shall be divided into
three classes to be known as Class A, Class B and Class C. At each Annual
Meeting of Stockholders, each such director of the Class to be elected shall be
elected to serve until the expiration of the term for which elected, and until
his successor has been elected and qualified. This Article SIXTH having been
-3-
<PAGE>
adopted by the affirmative vote of two-thirds of all of the outstanding shares
of the Corporation, shall be amended only by the affirmative vote of two-thirds
of all of the outstanding shares of the Corporation.
SEVENTH:
(A) Except as otherwise expressly provided in Paragraph (b) of
this Article SEVENTH:
(i) any merger or consolidation of the Corporation with
or into any other corporation
(ii) any sale, lease, exchange or other disposition of all
or any substantial part of the assets of the
Corporation to or with any other corporation, person,
other entity, or (iii) the issuance or transfer of
any securities of the Corporation to any other
corporation, person or other entity in exchange for
assets, securities or cash or a combination thereof,
shall require the affirmative vote of the holders of
at least 80% of the out- standing shares of capital
stock of the Corporation entitled to vote generally
in the election of directors, if, as of the record
date for the determination of stockholders entitled
to notice thereof and to vote on any transaction
described in clauses (i), (ii) or (iii) above, such
other corporation, person or its affiliates, singly
or in the aggregate, own or control, directly or
indirectly, 5% or more of the outstanding shares of
capital stock of the Corporation entitled to vote
generally in the election of directors. Such
affirmative vote shall be required notwithstanding
that no vote may otherwise be required, or that some
lesser percentage may be specified by law.
(B) The provisions of this Article SEVENTH shall not apply to
any transaction described in clauses (i), (ii) or (iii) of Paragraph (A) of this
Article, (i) with another corporation if a majority, by vote, of the outstanding
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<PAGE>
shares of all classes of capital stock of such other corporation entitled to
vote generally in the election of directors, considered for this purpose as one
class, is owned of record or beneficially by the Corporation and/or its
subsidiaries; or (ii) approved by resolution adopted by a vote of two-thirds of
the entire Board of Directors of the Corporation at any time prior to the giving
of notice of meeting of the shareholders for the purpose of voting upon any such
transaction described in clauses (i), (ii) or (iii) of Paragraph (A) of this
Article.
(C) For the purposes of this Article SEVENTH, a corporation,
person or affiliate shall be deemed to be the owner of any shares of capital
stock of the Corporation (i) which it has the right to acquire pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise, or (ii) which are beneficially owned, directly or indirectly
(including shares deemed owned through application of the immediately preceding
clause), by any other corporation, person or other entity with which it or its
affiliate has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of capital stock of the Corporation.
(D) For the purposes of this Article SEVENTH, an "affiliate"
of, or a person "affiliated" with, a specified person, is a person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the person specified; and the
term "control" (including the terms "controlling," "controlled by" and "under
common control with") means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract, or otherwise.
(E) This Article SEVENTH may not be amended or rescinded
except at a meeting of the shareholders, by the affirmative vote of the holders
of at least 80% of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors. Any such meeting shall
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<PAGE>
be held in the Village of Greene, New York, unless another place of meeting is
designated by resolution adopted by a vote of two- thirds of the entire Board of
Directors of the Corporation.
EIGHTH:
(A) Except as otherwise provided by law or by this Certificate
of Incorporation, the holders of a majority of the shares of the Corporation
issued and outstanding and entitled by proxy, shall be necessary to and shall
constitute a quorum for the transaction of business at all meetings of the
shareholders.
(B) At all meetings of the Board of Directors of the
Corporation a majority of the entire Board shall be necessary to and constitute
a quorum for the transaction of business, and the vote of a majority of the
Directors present at the time of the vote if a quorum is present shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by law or by this Certificate of Incorporation.
(C) No Director of the Corporation shall be removed from
office as a Director without cause, by vote or other action of the shareholders.
(D) The provisions set forth in the preceding paragraphs (A),
(B) and (C) of this Article EIGHTH, may not be repealed or amended in any
respect unless such repeal or amendment is approved at a meeting of the
shareholders by the affirmative vote of the holders of not less than 80% of the
total voting power of all outstanding shares of stock of the Corporation. Any
such meeting shall be held in the Village of Greene, New York, unless another
place of meeting is designated by resolution adopted by a vote of two-thirds of
the entire Board of Directors of the Corporation.
NINTH:
The Secretary of State of New York is hereby designated as agent of the
corporation upon whom process in any action or proceeding against it may be
served.
TENTH:
No director of the Corporation shall be held personally liable to the
Corporation or its Shareholders for damages for any breach of duty in his
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<PAGE>
capacity as a Director occurring after authorization of this Article by the
Shareholders unless a judgment or other final adjudication adverse to him
established that (1) his actions or omissions were in bad faith or involved
intentional misconduct or knowing violation of law, or (2) he personally gained
in fact a financial profit or other advantage to which he was not legally
entitled, or (3) his acts violated section 719 of the Business Corporation Law.
If the New York Business Corporation Law is hereafter amended to authorize
corporate action further eliminating or limiting the personal liability of
Directors, then the liability of Directors of the Corporation shall be
eliminated or limited to the fullest extent permitted by the New York Business
Corporation Law, as so amended. Any repeal of this Article, or any amendment of
this Article insofar as it would in any way enlarge the liability of any
Director of the Corporation, shall be ineffective with respect to any acts or
omissions occurring prior to the date of such repeal or amendment.
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<PAGE>
EXHIBIT 3.2
BYLAWS
OF
THE RAYMOND CORPORATION
-------------------------------------
AS AMENDED THROUGH December 14, 1995
--------------------------------------
<PAGE>
BYLAWS
of
THE RAYMOND CORPORATION
TABLE OF CONTENTS
ARTICLE I
MEETING OF STOCKHOLDERS
Section 1. Annual Meeting
" 2. Notice of Annual Meeting
" 3. Order of Business
" 4. Special Meetings and Notice Thereof
" 5. Quorum at Meetings
" 6. Mode of Voting
" 7. Waiver of Notice
" 8. Proxies
" 9. Qualifications of Voters
ARTICLE II
DIRECTORS
Section 1. Number of Directors and Term of Office
" 2. Vacancies in the Board
" 3. Rules and Regulations
" 4. Meeting of Board of Directors and Notice Thereof
" 5. Quorum at Meetings
" 6. Standing or Temporary Committees
" 7. Attendance by Electronic Means
<PAGE>
ARTICLE III
OFFICERS
Section 1. Election
" 2. Chairman of the Board
" 3. President
" 4. Vice Presidents
" 5. Treasurer
" 6. Controller
" 7. Secretary
" 8. Assistant Treasurer
" 9. Assistant Secretary
" 10. Delegation of Duties
" 11. Facsimile Signatures
ARTICLE IV
CAPITAL STOCK
Section 1. Certificates of Stock
" 2. Transfers of Shares
" 3. Loss or Destruction
" 4. Regulations
ARTICLE V
DIVIDENDS
Section 1. No Impairment of Capital or
Capital Stock
" 2. Dividends
<PAGE>
ARTICLE VI
INSPECTORS OF ELECTION
Section 1. Appointment
" 2. Qualification and Certificate of
Result of Vote
ARTICLE VII
INDEMNITY
Section 1. Indemnity
ARTICLE VIII
SEAL
Section 1. Seal
ARTICLE IX
AMENDMENTS
Section 1. Manner of Amending
ARTICLE X
WAIVER OF NOTICE
Section 1. Authority to Waive Notice
<PAGE>
BYLAWS
OF
THE RAYMOND CORPORATION
ARTICLE I
MEETING OF STOCKHOLDERS
Annual Meeting.
Section 1. (As Amended December 17, 1971, November 5, 1976 and December
15, 1978). The Annual Meeting of the Stockholders of this Corporation shall be
held in the Village of Greene, Chenango County, New York, or at another location
within the State of New York where the Corporation has plant facilities, in the
forenoon of the fourth Saturday after the first Saturday in the month of April
in each and every year, for the purpose of electing directors and for the
transaction of such other business as may properly come before said meeting.
Notice of Annual Meeting.
Section 2. (As Amended June 20, 1975) Notice of the time, place and
purpose of such meeting shall be in writing, shall be signed by the President,
Vice-President or Secretary, and shall be served, either personally or by mail,
not less than ten nor more than fifty days before the meeting upon each
stockholder of record entitled to vote at such meeting. If mailed, such notice
shall be directed to each such stockholder at his address as it appears on the
stock books, unless he shall have filed with the Secretary a written request
that notices intended for him be mailed to some other address, in which case it
shall be mailed to the address designated in such request. No business other
than that stated in such notice shall be transacted at such meeting without the
unanimous consent of all of the stockholders present thereat in person or by
proxy.
Order of Business.
Section 3. At the Annual Meeting of Stockholders, the following shall
be the order of business, viz:
1. Call of roll.
2. Proof of proper notice of meeting.
3. Reports respectively of President, Treasurer
and Secretary.
4. Appointment of Inspectors of Election.
5. Election of Directors.
6. Miscellaneous Business.
<PAGE>
Special Meetings and Notice Thereof.
Section 4. Special meetings of stockholders, other than those regulated
by statute, may be held in the Village of Greene, Chenango County, New York, and
at such place or places, either within or without the State of New York,
designated in a waiver of notice of such meeting signed by all of the
stockholders and consenting to holding the meeting at the place so designated,
and may be called at any time by the President or by a majority of the
directors. A written notice of every special meeting stating the time, place and
purpose thereof shall be signed by the President, Vice-President or Secretary,
and shall be served, either personally or by mail, at least ten days before such
meeting. If mailed, such notice shall be directed to each of such stockholder at
his address as it appears on the stock book unless he shall have filed with the
Secretary a written request that notices intended for him be mailed to some
other address, in which case it shall be mailed to the address designated in
such request.
Quorum at Meetings.
Section 5. A majority of the stock entitled to vote shall constitute a
quorum for the transaction of business, unless a greater number is required by
statute; but any lesser number may adjourn any meeting at such time not
exceeding thirty days and to such place as they may decide upon. No further
notice of any adjourned meeting shall be required.
Mode of Voting.
Section 6. At each meeting of the stockholders, every stockholder of
record entitled to vote may vote in person or by proxy, and he shall have one
vote for each share of stock standing in his name on the books of the
Corporation. The voting may be viva voce, but any qualified voter may demand a
stock vote, whereupon such stock vote shall be taken by ballot, each of which
shall state the name of the stockholder voting and the number of shares voted by
him, and, if such ballot be cast by proxy, it shall also state the name of such
proxy. At all meetings of stockholders all questions, except those the manner of
deciding which is expressly regulated by statute or by the bylaws of this
Company, shall be determined by a majority vote of the stockholders entitled to
vote thereat present in person or by proxy, and each such stockholder shall be
entitled to only one vote for each share of stock standing in his name on the
books of the Corporation.
Waiver of Notice.
Section 7. Whenever, under any provisions of these bylaws or any
statute, the Corporation is authorized to take any action at a meeting of
stockholders entitled to vote thereat, after notice to such stockholders or
after the lapse of a prescribed period of time, such action may be taken at the
meeting, without notice and without the lapse of any period of time, if the
required notice and lapse of time be waived in writing by every stockholder
entitled to vote at such meeting or by his attorney thereunto authorized.
<PAGE>
Proxies.
Section 8. The instrument appointing a proxy shall be in writing and
subscribed by the person making the appointment. The person so appointed need
not be a stockholder. A proxy shall be valid only for eleven months from the
date of the execution unless its duration is specified therein, but every proxy
shall be revocable at the pleasure of the person executing it or of his personal
representatives or assigns.
Qualification of Voters.
Section 9. (As Amended April 26, 1975) The Board of Directors may fix a
date, not exceeding fifty (50) days preceding the date of any meeting of
stockholders, as a record date for the determination of the stockholders
entitled to notice of and to vote at any such meeting.
Article II
DIRECTORS
Numbers of Directors and Term of Office.
Section 1. (As Amended March 1, 1975, April 24, 1976, May 5, 1979, May
1, 1982, February 26, 1983, April 30, 1983, October 18, 1984, December 20, 1984,
March 5, 1985, effective May 4, 1985, December 18, l986, April 30, 1988, May 5,
1990, March 4, 1995 and April 29, 1995). The Board of Directors of the
Corporation shall be ten (10) in number, which number within the maximum and
minimum limits specified in the Certificate of Incorporation or amendments
thereto shall be subject to change by the Board of Directors from time to time
by amendment to these Bylaws. In the event of any increase in the number of
directors by amendment of this section, the additional directors may be elected
by a majority of the directors in office at the time of the increase to serve
until the next Annual Meeting of Stockholders. No decrease in the number of
directors shall be effective to remove any director prior to the expiration of
his term of office.
At each Annual Meeting of the Stockholders, a quorum being present, the
successors to the directors of the class whose terms of office shall expire in
that year shall be elected by a plurality of the votes cast to serve until the
third Annual Meeting of Stockholders thereafter and until their successors are
elected and have qualified.
Vacancies in the Board.
Section 2. (As Amended April 24, 1976 and December 14, 1995) Any
vacancy in the Board of Directors occurring during the year, through death,
resignation or other cause, shall be filled by a majority vote of the remaining
directors at any special meeting of the Board called for that purpose or at any
regular meeting thereof, and any director elected to fill a vacancy, unless
elected by the stockholders, shall hold office until the next meeting of
stockholders at which the election of directors is in the regular order of
business, provided, however, when the number of directors is increased by the
Board and any newly created directorships are filled by the Board, there shall
be no classification of the additional directors until the next Annual Meeting
of Stockholders. In case of disagreement of the directors as to the person to be
chosen to fill such vacancy, the same shall be filled by the stockholders, at a
meeting called for that purpose.
<PAGE>
Rules and Regulations.
Section 3. The Board of Directors may adopt such rules, regulations and
bylaws, not inconsistent with these bylaws or law of the State of New York, for
the conduct of its meetings and the management of the affairs of the Corporation
as it may deem proper.
Meetings of Board of Directors and Notice Thereof.
Section 4. (As Amended May 22, 1956) A regular meeting of the Board of
Directors shall be held immediately after the Annual Meeting of Stockholders.
Special meetings of the Board of Directors shall be held at the times and places
fixed by the Board or upon call of the President or a majority of the Directors.
Five days' written notice of such meeting shall be served personally or by mail
upon each director. Meetings may be held at any time without notice if all
directors are present or if those not present waive notice thereof in writing
either before, at or after the meeting. The directors may hold their meetings at
such place or places, either within or without the State of New York, as the
Board may designate from time to time.
(Added June 20, 1975) Any action required or permitted to be taken by
the Board or any Committee thereof may be taken without a meeting if all members
of the Board or the Committee consent in writing to the adoption of resolutions
authorizing the action. The resolutions and the written consents thereto by the
members of the Board or Committee shall be filed with the minutes of the
proceedings of the Board or the Committee.
Quorum at Meetings.
Section 5. (As Amended June 20, 1975, and August 30, l985) The presence
of a majority of the Board of Directors shall be necessary to constitute a
quorum for the transaction of business at any meeting of the Board, but any
director present at the time and place of any meeting, although there is less
than a quorum, may adjourn the same from time to time, without further notice,
until a quorum shall attend.
Standing or Temporary Committees.
Section 6. (Added April 13, 1960) Standing or temporary committees may
be appointed from its own number by the Board of Directors from time to time and
the Board of Directors may from time to time invest such committees with such
powers as it may see fit subject to such conditions as may be prescribed by such
Board. An executive committee may be appointed by resolution passed by a
majority of the whole Board, which shall have all the powers provided by statute
except as specially limited by the Board and shall keep regular minutes of the
transactions of their meetings and shall report the same to the Board of
Directors at its next meeting.
<PAGE>
Attendance by Electronic Means.
Section 7. (Added August 14, l986) Any one or more members of the Board
of Directors or of any Committee established by the Board may participate in a
meeting of the Board of Directors or of any such Committee by means of a
conference telephone or similar communications equipment, allowing all persons
participating in the meeting to hear each other at the same time. Participation
by such means shall constitute presence in person at a meeting.
ARTICLE III
OFFICERS
Election and Appointment of Officers by Board.
Section 1. (As Amended June 20, 1975, April 29, 1978, June 19, 1981 and
December 18, 1986). The Officers of the Corporation shall consist of a Chairman
of the Board, a President, one or more Vice Presidents, of whom one may be
appointed Executive Vice President, a Corporate Controller, a Treasurer, one or
more Assistant Treasurers, a Secretary, and one or more Assistant Secretaries.
The Officers shall be elected by a majority vote of the Board of Directors at a
meeting held promptly after the annual meeting of stockholders, and shall hold
office for a term of one year, or until their successors shall be chosen and
qualified, but any Officer may be removed from office at any time by the Board
of Directors. The Board of Directors may elect or appoint such other Officers
and Agents as it may deem proper. The same person may hold two offices, except
those of President and Secretary. Vacancies in the offices shall be filled by
the Board of Directors.
Chairman of the Board.
Section 2. (As amended November 11, 1959, April 29, 1978, December 18,
1986 and August 2, 1995) The Chairman shall preside over all meetings of
Stockholders, and shall be the Chief Executive Officer of the Corporation and
shall have full charge of the management and supervision of the business of the
Corporation. He shall be an ex-officio member of all standing committees of the
Board except for the Audit Committee and the Executive Compensation Committee.
President.
Section 3. (As amended November 11, 1959, April 29, 1978, December 18,
1986, March 3, 1988, January 1, 1993 and August 2, 1995). The President shall be
the Chief Operations Officer of the Corporation, and shall perform such other
duties and exercise such other powers as the Board of Directors or the Chairman
may from time to time determine. In the absence or disability of the Chairman,
he shall preside at all meetings of the Stockholders and perform the other
duties of the Chairman, or he may designate the Executive Officers of the
Corporation by whom any such duties shall be performed.
<PAGE>
Vice Presidents.
Section 4. (As amended March 25, 1955, November 5, 1976, April 29, 1978
and December 18, 1986) The Vice Presidents shall assist the President and Chief
Executive Officer in the management of the business of the Corporation and in
the implementation of resolutions and orders of the Board of Directors at such
times and in such manner as the President and Chief Executive Officer or
Executive Officer next in authority may deem to be advisable. The Board of
Directors may designate the order of seniority and may also grant such titles as
shall be descriptive of their respective function indicative of their relative
seniority as Vice Presidents. The Vice Presidents in the order of their
seniority as indicated by their titles or as otherwise determined by the Board
of Directors, shall, in the absence or disability of the President and Chief
Executive Officer, exercise the powers and perform the duties of the President,
and they shall also have such other powers and duties as the Board of Directors
may from time to time prescribe.
Treasurer.
Section 5. (As Amended March 25, 1955) The Treasurer shall endorse, in
the name of the Company, and deposit in its bank account, all checks, drafts,
notes and orders for the payment of money; shall have the care and custody of
all the funds and securities of the Corporation; shall deposit the same in the
name of the Corporation in such bank or trust company as the directors may
designate; shall pay out and disburse the funds of the Corporation under the
direction of the President and perform all duties incidental to his office. The
Treasurer shall render a full and true account of all his receipts and
disbursements and of all moneys and property in his hands or under his control,
whenever requested by order of the majority of the Board of Directors.
Corporate Controller.
Section 6. (Added April 26, 1975 and amended March 12, l986) The
Corporate Controller shall be the chief accounting officer of the Corporation.
He shall have charge of the books of account of the Corporation, and have
general supervision of the accounting practices of the Corporation and each of
its subsidiary corporations. He shall be responsible for cash flow analysis,
budgeting and financial forecasting activities, as well as the reporting of
variances/deviations from approved plan. He shall also be responsible for the
preparation, compilation and filing of such reports, statements, tax returns,
financial statistics and other data as may be required by law or as may be
prescribed by the Vice President - Finance.
<PAGE>
Secretary.
Section 7. (As Amended March 25, 1955 and May 22, 1956) The Secretary
shall keep the minutes of the meetings of the Board of Directors and of the
stockholders; shall attend to the giving and serving of all notices of the
Company; shall have charge of the seal of the Corporation and shall affix the
seal to all certificates of stock, when signed by the proper officers; shall
have charge of the stock certificate book and such other books and papers as the
Board may direct; shall also keep, in the office of the Corporation, a stock
book containing the names, alphabetically arranged, of all persons who are
holders of the stock of the Company, showing their places of residence, the
number of shares of stock held by them respectively, the time when they
respectively became owners thereof and the amount paid thereon; shall keep such
books open for inspection, as provided by Section 10 of the Stock Corporation
Law; shall attend to such correspondence as may be assigned to him and shall
perform all the duties incidental to his office, to the extent that any of the
foregoing duties shall be performed by a transfer agent or agents appointed by
the Board of Directors, the Secretary shall be relieved of the same.
Assistant Treasurer.
Section 8. (As Amended March 25, 1955 and April 26, 1975) The Assistant
Treasurer, in the absence or disability of the Treasurer or when circumstances
shall prevent the latter from acting, shall perform all of the duties and
possess all of the power of the Treasurer.
Assistant Secretary.
Section 9. (As Amended March 25, 1955 and April 26, 1975) The Assistant
Secretary, in the absence or disability of the Secretary or when circumstances
shall prevent the latter from acting, shall perform all of the duties and
possess all of the powers of the Secretary.
Delegation of Duties.
Section 10. (As Amended March 25, 1955 and April 26, 1975) The Board of
Directors shall have power to delegate the duties of any officers to any other
officer, and generally to control the actions of the officers and to require the
performance of duties in addition to these mentioned herein. Checks, notes and
similar instruments shall be signed by such officers as the Board may from time
to time designate.
Facsimile Signatures.
Section 11. (Added May 2, 1956 and Amended April 26, 1975) In the event
that the corporation shall have designated a transfer agent, or agents to
transfer the stock of the corporation, and certificates of stock of the
corporation are signed by such transfer agent, or assistant transfer agent or by
a transfer clerk acting in behalf of the corporation, the signatures of the
officers thereon may be facsimile.
<PAGE>
ARTICLE IV
(As Amended May 2, 1956)
CAPITAL STOCK
Certificates of Stock.
Section 1. (As Amended August 30, l985) Certificates of stock shall be
signed by the Chairman of the Board or President and by the Secretary or
Treasurer and the seal of the corporation shall be affixed thereto. The
signatures of said officers and seal may be facsimile when such certificates are
signed by a transfer agent or an assistant transfer agent or by a transfer clerk
acting in behalf of the corporation.
In case any officer who has signed or whose facsimile signature has
been used on a certificate, has ceased to be an officer before the certificate
has been delivered, such certificate may, nevertheless, be adopted and issued
and delivered by the corporation as though the officer who signed such
certificate or certificates, or whose facsimile signature or signatures shall
have been used thereon, had not ceased to be such officer of the corporation.
Transfer of Shares.
Section 2. Transfers of shares shall only be made upon the transfer
books of the corporation kept at the office of the corporation or transfer
agent, or agents, designated to transfer such shares of stock and before a new
certificate is issued the old certificate, or certificates, shall be surrendered
for cancellation.
Loss or Destruction.
Section 3. In case of loss or destruction of any certificate of stock,
another may be issued in its place upon proof of such loss or destruction, as
the Board of Directors may provide. The Board of Directors may require that a
satisfactory bond of indemnity be given to the Corporation and/or to the
transfer agent of such stock.
Regulations.
Section 4. The Board of Directors shall have power and authority to
make all such rules and regulations as it may deem expedient concerning the
issue, transfer, conversion and registration of certificates for shares of the
capital stock of the Corporation, not inconsistent with the laws of New York,
the Certificate of Incorporation of the Corporation, and these Bylaws.
<PAGE>
ARTICLE V
DIVIDENDS
No Impairment of Capital or Capital Stock.
Section 1. No dividend shall be declared or paid which shall impair the
Company's capital or capital stock, nor while its capital or capital stock is
impaired, nor shall any dividends be declared or paid or any distribution be
made of assets to any of the stockholders, either upon reduction of the number
of shares or of the Company's capital or capital stock, unless the value of the
assets remaining after the payment of such dividend or after such distribution
of assets, as the case may be.
Dividends.
Section 2. (As Amended May 22, 1956) The Corporation shall pay no
dividends on any of its outstanding stock where there is any existing default in
the payment of principal or interest due on its ten-year five and one-half per
cent debenture bonds.
ARTICLE VI.
INSPECTORS OF ELECTION
Appointment.
Section 1. (As Amended May 22, 1956) Two (2) inspectors of election
shall be appointed by the Chairman of the Board at each annual meeting of
stockholders to serve until and including the next annual meeting. If there be a
failure to appoint inspectors, or if any inspector appointed be absent at a
meeting or refuse to act or if his office becomes vacant, the stockholders
present at the meeting and entitled to vote thereat, by a per capita majority
vote, may choose, temporarily, inspectors of the number required.
Qualification and Certificates of Result of Vote.
Section 2. The inspectors of election, before entering upon the
discharge of their duties, shall be sworn faithfully to execute the duties of
inspector at such meeting, with strict impartiality and according to the best of
their ability, and the oath so taken shall be subscribed by them and immediately
filed with the Secretary, with a certificate of the result of the vote taken at
the election or meeting at which they served.
<PAGE>
ARTICLE VII
(As Amended May 2, l987)
INDEMNITY
Section 1. To the maximum extent permitted by Article 7 of the Business
Corporation Law of the State of New York, as amended from time to time:
(a) The Corporation shall indemnify any person made, or
threatened to be made, a party to any action or proceeding (including one by or
in the right of the Corporation to procure a judgment in its favor), whether
civil or criminal, including an action by or in the right of any other
corporation of any type or kind, domestic or foreign, or any partnership, joint
venture, trust, employee benefit plan or other enterprise, which any director or
officer of the Corporation served in any capacity at the request of the
Corporation, by reason of the fact that he, his testator or intestate, is or was
a director or officer of the Corporation, or is or was serving such other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, amounts paid in settlement
and reasonable expenses, including attorneys' fees actually and necessarily
incurred as a result of such action or proceeding, or any appeal therein.
(b) No indemnification may be made to or on behalf of any
director or officer if a judgment or other final adjudication adverse to the
director or officer establishes that his acts were committed in bad faith or
were the result of active and deliberate dishonesty and were material to the
cause of action so adjudicated, or that he personally gained in fact a financial
profit or other advantage to which he was not legally entitled.
(c) The Corporation may, in the discretion of the Board of
Directors, indemnify all corporate personnel of the Corporation, other than
Directors and Officers, in the same manner and to the same extent as any
director or officer shall be indemnified as aforesaid by reason of his being, or
having been, a director or officer of the Corporation or having served any other
company as aforesaid.
(d) The Corporation may enter into written indemnification
agreements with Directors, Officers and corporate personnel referred to in
subparagraph (c) hereof, providing for indemnification in accordance with the
terms of this Article VII and containing such other terms, conditions and
procedures deemed by the Corporation necessary or proper to carry out the full
intent of this Article VII.
ARTICLE VIII
SEAL
Section 1. The Corporate Seal shall be an impression on wax or paper,
circular in form, with the words "The RAYMOND CORPORATION" on the outer margin
thereof, and bearing on the inner portion the words "Incorporated 1887".
<PAGE>
ARTICLE IX
AMENDMENTS
Manner of Amending.
Section 1. (As Amended May 2, 1956) These bylaws may be altered,
amended, repealed or added to by affirmative vote of the stockholders
representing a majority of the entire outstanding capital stock having voting
power at an annual meeting or at a special meeting called for that purpose or by
the Board of Directors by a majority vote of the whole Board of Directors at any
regular or special meeting.
ARTICLE X
WAIVER OF NOTICE
(Added May 2, l956)
Authority to Waive Notice.
Section 1. Whenever under the provisions of these bylaws any
stockholder or Director is entitled to notice of any regular or special meeting
or of any action to be taken by the Corporation, such meeting may be held or
such action may be taken without the giving of such notice, provided every
stockholder or Director entitled to such notice shall in writing waive the
requirement of these bylaws in respect thereto.
<PAGE>
EXHIBIT 10.8
==============================================================================
$10,000,000
REVOLVING CREDIT AND TERM LOAN AGREEMENT
Dated as of
September 1, 1995
among
THE RAYMOND CORPORATION
AND
RAYMOND LEASING CORPORATION
AND
MARINE MIDLAND BANK
==============================================================================
<PAGE>
TABLE OF CONTENTS
I. DEFINITIONS............................................................ 6
SECTION 1.01. Definitions.............................................. 6
SECTION 1.02. Accounting Terms/Other Definitional Provisions .......... 15
II. LOANS.................................................................. 16
SECTION 2.01. Revolving Credit Loans .................................. 16
SECTION 2.02. Revolving Credit Note.................................... 16
SECTION 2.03. Interest on Revolving Credit Loans....................... 17
SECTION 2.04. Term Loan................................................ 17
SECTION 2.05. Term Note: Grid Schedules................................ 18
SECTION 2.06. Interest on the Term Loan................................ 18
SECTION 2.07. Interest on Absolute Rate Loans.......................... 18
SECTION 2.08. Interest on Prime Rate Loans............................. 18
SECTION 2.09. Interest on Treasury Rate Loans.......................... 18
SECTION 2.10. Interest on Eurodollar Rate Loans........................ 19
SECTION 2.11. Continuation and Conversion of Loans..................... 19
SECTION 2.12. Prepayment of Loans...................................... 20
SECTION 2.13. Reduction or Termination of the Commitment............... 21
SECTION 2.14. Fees..................................................... 21
SECTION 2.15. Default Rate of Interest: Late Payment Penalty........... 21
SECTION 2.16. Application of Payments and Computations................. 22
SECTION 2.17. Funds; Manner of Payment................................. 22
SECTION 2.18. Capital Adequacy......................................... 22
SECTION 2.19. Inability to Determine Rate.............................. 22
SECTION 2.20. Other Events............................................. 23
SECTION 2.21. Change in Legality....................................... 24
III. REPRESENTATIONS AND WARRANTIES......................................... 25
SECTION 3.01. Organization, Corporate Powers, etc...................... 25
SECTION 3.02. Corporate and Governmental Authorization;
No Contravention......................................... 25
SECTION 3.03. Financial Condition...................................... 25
SECTION 3.04. Taxes.................................................... 26
SECTION 3.05. Title to Properties...................................... 26
SECTION 3.06. Litigation............................................... 26
SECTION 3.07. Agreements............................................... 27
SECTION 3.08. ERISA.................................................... 27
SECTION 3.09. Proceeds of the Loan..................................... 27
SECTION 3.10. Federal Reserve Regulations.............................. 27
SECTION 3.11. Subsidiaries............................................. 28
SECTION 3.12. Environmental Matters.................................... 28
SECTION 3.13. Not an Investment Company................................ 29
SECTION 3.14. Material Change.......................................... 29
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SECTION 3.15. Governmental Approval.................................... 29
SECTION 3.16. Full Disclosure.......................................... 29
SECTION 3.17. Binding Effect........................................... 29
SECTION 3.18. Trademarks and Licenses, etc............................. 29
IV. CONDITIONS OF LENDING.................................................. 30
SECTION 4.01. Representations and Warranties; No Default............... 30
SECTION 4.02. Opinion of Counsel....................................... 30
SECTION 4.03. No Default Certificate; Deemed Representation............ 30
SECTION 4.04. Supporting Documents..................................... 30
SECTION 4.05. Other Information, Documentation......................... 31
V. AFFIRMATIVE COVENANTS...................... ........................... 31
SECTION 5.01. Corporate Existence, Properties, Insurance, etc.......... 31
SECTION 5.02. Payment of Indebtedness, Taxes, etc...................... 31
SECTION 5.03. Reporting Requirements .................................. 32
SECTION 5.04. Access to Premises and Records........................... 33
SECTION 5.05. Notice of Adverse Change................................. 33
SECTION 5.06. Notice of Default........................................ 33
SECTION 5.07. ERISA.................................................... 34
SECTION 5.08. Compliance with Contractual Obligations and
Requirements of Law; Applicable Laws..................... 34
SECTION 5.09. Subsidiaries............................................. 34
SECTION 5.10. Environmental Laws....................................... 34
SECTION 5.11. Support Services Agreement............................... 35
SECTION 5.12. Voting of Subsidiaries' Shares........................... 35
VI. NEGATIVE COVENANTS..................................................... 35
SECTION 6.01. Liens.................................................... 35
SECTION 6.02. Guarantees, Etc.......................................... 36
SECTION 6.03. Sale of Notes............................................ 36
SECTION 6.04. Investments.............................................. 36
SECTION 6.05. Change in Business....................................... 37
SECTION 6.06. Dividends................................................ 37
SECTION 6.07. Subordinated Debt........................................ 38
SECTION 6.08. Accounting Policies and Procedures....................... 38
SECTION 6.09. Stock of Subsidiaries, Etc............................... 38
SECTION 6.10. Transactions with Affiliates............................. 38
SECTION 6.11. Merger or Consolidation or Sales of Assets............... 38
SECTION 6.12. Restrictions on Leases of Equipment...................... 39
SECTION 6.13. The Raymond Corporation Subsidiaries..................... 39
VII. FINANCIAL COVENANTS - THE RAYMOND CORPORATION.......................... 39
SECTION 7.01. Minimum Working Capital.................................. 39
SECTION 7.02. Minimum Tangible Net Worth............................... 39
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SECTION 7.03. Leverage Ratio.......................................... 39
SECTION 7.04. Interest Coverage....................................... 39
SECTION 7.05. Loss Quarters........................................... 39
VII-A FINANCIAL COVENANTS - RAYMOND LEASING................................. 40
SECTION 7A.01. Minimum Tangible Net Worth............................. 40
SECTION 7A.02. Leverage Ratio......................................... 40
SECTION 7A.03. Interest Coverage...................................... 40
SECTION 7A.04. Loss Quarter........................................... 40
SECTION 7A.05. Working Capital........................................ 40
VII-B FINANCIAL COVENANTS - CONSOLIDATED.................................... 40
SECTION 7B.01. Minimum Tangible Net Worth............................. 40
SECTION 7B.02. Leverage Ratio......................................... 40
SECTION 7B.03. Interest Coverage...................................... 40
SECTION 7B.04. Consolidated Losses.................................... 40
VIII. EVENTS OF DEFAULT..................................................... 41
SECTION 8.01. Events of Default....................................... 41
IX. MISCELLANEOUS......................................................... 43
SECTION 9.01. Notices................................................. 43
SECTION 9.02. Survival of Agreement; Successors and Assigns........... 44
SECTION 9.03. Expenses of the Bank; lndemnification................... 44
SECTION 9.04. Applicable Law.......................................... 45
SECTION 9.05. Waiver of Rights by the Bank; Waiver of Jury Trial, etc. 45
SECTION 9.06. Acknowledgments......................................... 46
SECTION 9.07. Consent to Jurisdiction................................. 46
SECTION 9.08. Extension of Maturity................................... 46
SECTION 9.09. Modification of Agreement............................... 47
SECTION 9.10. Participations and Assignments.......................... 47
SECTION 9.11. Reinstatement; Certain Payments......................... 47
SECTION 9.12. Right of Setoff......................................... 47
SECTION 9.13. Severability............................................ 48
SECTION 9.14. Counterparts............................................ 48
SECTION 9.15. Entire Agreement; Cumulative Remedies....................48
SECTION 9.16. Headings................................................ 48
SECTION 9.17. Exhibits and Schedules.................................. 48
SCHEDULE I .......... ................................................ 50
Notice of Borrowing (or Conversions).............................. 50
SCHEDULE II........................................................... 52
List of Subsidiaries of Raymond................................... 52
List of Affiliates of Raymond..................................... 52
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List of Subsidiaries of Raymond Leasing........................... 52
List of Affiliates of Raymond Leasing............................. 52
SCHEDULE III ......................................................... 53
No Default Certificate ........................................... 53
SCHEDULE IV........................................................... 54
List of Liens of Raymond.......................................... 54
List of Liens of Raymond Leasing.................................. 54
EXHIBIT A
RAYMOND REVOLVING CREDIT NOTE..................................... 55
EXHIBIT A-1 .......................................................... 57
Raymond Leasing Revolving Credit Note............................. 57
EXHIBIT B ............................................................ 59
Team Note......................................................... 59
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
REVOLVING CREDIT AND TERM LOAN AGREEMENT dated as of September 1,
1995 (the "Agreement") among THE RAYMOND CORPORATION, a New York corporation
("Raymond") and RAYMOND LEASING CORPORATION, a Delaware corporation ("Raymond
Leasing") (Raymond and Raymond Leasing individually the "Borrower" and
collectively the "Borrowers" as the case may be) and MARINE MIDLAND BANK, a
New York banking corporation (the "Bank").
WHEREAS, the Borrowers have requested the Bank to extend credit to
them severally on a revolving credit basis at any time and from time to time
prior to the Termination Date (as defined below) by making revolving credit
loans to the Borrowers not in excess of $10,000,000 in the aggregate at any
time outstanding and to have the option to from time to time up to and
including the Termination Date convert the outstanding under the revolving
credit loans to three, four or five year term loans; and
WHEREAS, the proceeds of the revolving credit and term loans shall be
used by the Borrowers for general corporate working capital purposes and to
fund growth in Raymond Leasing's lease portfolio; and
WHEREAS, the Bank is willing to extend such credit to the Borrowers,
subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing the parties hereto
agree to the following:
I. DEFINITIONS
SECTION 1.01. Definitions. As used herein, the terms defined in the
preamble shall have the same meaning when used in this Agreement and the
following words and terms shall have the following meanings:
"Absolute Rate" means a rate of interest per annum quoted to a
Borrower by the Bank in its discretion, from time to time at the request of
such Borrower, by 12:00 noon, New York City time on the day of the borrowing,
provided however, Bank shall have been given two (2) Business Days' prior
request for a quotation by such Borrower. Such quoted rate shall be the fixed
rate which would be applicable to an Absolute Rate Loan by the Bank on the
requested date for the proposed Term Loan, in the specified amount and with
the specified Interest Period. A Borrower may request an Absolute Rate Loan on
the basis of such quote.
"Absolute Rate Loan" shall mean that part of a Term Loan bearing
interest in accordance with Section 2.07 of this Agreement.
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"Adjusted Eurodollar Rate" shall mean, with respect to any Eurodollar
Rate Loan for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1% equal to the product of (i) the
Eurodollar Rate in effect for such Interest Period and (ii) Eurodollar
Reserves. For the purposes hereof, "Eurodollar Rate" shall mean, for any
Interest Period, the rate (rounded upwards, if necessary to the next 1/16 of
1%) at which dollar deposits approximately equal to the principal amount of
the proposed Eurodollar Rate Loan and for a duration equal to the applicable
proposed Interest Period are offered by the London Branch of the Bank in
immediately available funds in the Interbank Market for Eurodollars at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period. For purposes hereof, the term
"Eurodollar Reserves" means a fraction (expressed as a decimal), the numerator
of which is the number one and the denominator of which is the number one
minus the applicable statutory reserve requirements for the Bank (without
duplication, but including, without limitation, basic, supplemental, marginal
or emergency reserves), from time to time in effect under Regulation D of the
Board of Governors of the Federal Reserve System (or any successor) with
respect to eurocurrency funding currently referred to as "Eurocurrency
Liabilities" in Regulation D. It is agreed that for purposes hereof any amount
bearing interest at the Eurodollar Rate shall be deemed to constitute a
"Eurocurrency liability" as defined in Regulation D and to be subject to the
reserve requirements of Regulation D, without benefit of credit or proration,
exemptions or offsets which might otherwise be available to the Bank from time
to time under Regulation D.
"Affiliate" shall mean any person which directly or indirectly
controls, or is controlled by, or is under common control with, a Borrower or
any of its Subsidiaries. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities,
by contract, or otherwise.
"Borrowing Date" shall mean, with respect to any Loan, the date on
which such Loan is disbursed to the Borrower, or the date on which another
Type of Loan is converted into such Loan pursuant to Section 2.11, or the
date on which one or more Revolving Credit Loans are converted into a Term
Loan pursuant to Section 2.04, as the case may be.
"Business Day" shall mean any day not a Saturday, Sunday or legal
holiday, on which the Bank is open for business in New York City, provided,
however, that when used in connection with determining the Eurodollar Rate, the
term "Business Day" shall also exclude any day on which the Bank is not open
for dealings in dollar deposits in an Interbank Market.
"Capitalized Lease Obligation" shall mean an obligation to pay rent
or other amounts under any lease of (or other arrangement conveying the right
to use) real and/or personal property which obligation is required to be
classified and accounted for as a capital lease on a balance sheet prepared in
accordance with generally accepted accounting principles, and for purposes
hereof the amount of such obligation shall be the capitalized amount thereof
determined In accordance with such principles.
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<PAGE>
"Chief Financial Officer" shall mean the Chief Financial Officer of
such Borrower, as applicable.
"Closing Date" shall mean September 1, 1995 or such other date as the
parties may agree.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" shall have the meaning assigned to such term in Section
2.01 hereof. The Commitment shall be deemed permanently terminated on the
Termination Date or such earlier date on which the Commitment shall have been
terminated in accordance herewith.
"Commonly Controlled Entity" shall mean an entity, whether or not
incorporated, which is under common control with a Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes a Borrower and
which is treated as a single employer under Section 414 of the Code.
"Consolidated Adjusted Net Income" for any period shall mean the
consolidated gross revenues of the Borrower for such period less all expenses
and other proper charges (including taxes on income) and extraordinary items
of income, but excluding in any event (to the extent not previously deducted as
extraordinary items of income):
(a) any gains or losses on the sale or other disposition of
investments or fixed or capital assets, and any taxes on such
excluded gains and any tax deductions or credits on account of any
such excluded losses;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any corporation,
substantially all the assets of which have been acquired in any
manner by the Borrower or a Subsidiary of Borrower, realized by such
corporation prior to the date of such acquisition;
(d) net earnings and losses of any corporation with which
the Borrower or a Subsidiary of Borrower shall have consolidated or
which shall have merged into or with the Borrower or such Subsidiary
prior to the date of such consolidation or merger;
(e) net earnings of any business entity in which the
Borrower or a Subsidiary of Borrower has an ownership interest unless
such net earnings shall have actually been received by the Borrower
in the form of cash distributions;
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<PAGE>
(f) earnings resulting from any reappraisal, revaluation or
write-up of assets;
(g) any gain arising from the acquisition of any securities
of the Borrower; and
(h) any reversal of any contingency reserve, except to the
extent that provision for such contingency reserve shall have been
made from income arising during such period.
"Consolidated Current Assets" shall mean, at any date, the aggregate
amount of all assets of the Borrower and its Subsidiaries which would be
properly classified as current assets at such date, but excluding deferred
assets, all computed as per management statements prepared on a consistent
basis.
"Consolidated Current Liabilities" shall mean the aggregate amount of
all liabilities of the Borrower and its Subsidiaries (including tax and other
proper accruals) which would be classified as current liabilities, all
computed as per management statements prepared on a consistent basis.
"Consolidated Interest Expense" shall mean the interest expense of
the Borrower and its Subsidiaries during such period determined on a
consolidated basis in accordance with generally accepted accounting principles
consistently applied, and shall in any event include, without limitation, (i)
the amortization of debt discounts, (ii) the amortization of all fees payable
in connection with the incurrence of Indebtedness to the extent included in
interest expense, (iii) the portion of any Capitalized Lease Obligation
allocable to interest expense, (iv) all fixed or calculable dividend payments
on preferred stock, and (v) payments of interest expense in kind.
"Consolidated Net Income Available for Interest Charges" for any
period shall mean the sum of (1) Consolidated Adjusted Net Income during such
period, plus (to the extent deducted in determining adjusted net income), (ii)
all provisions for any federal, state or other income taxes made by the
Borrower during such period, and (iii) Interest Charges during such period.
"Consolidated Tangible Net Worth" shall mean for the Borrower and its
Subsidiaries, the excess of (i) the aggregate net book value of the assets
(other than patents, patent rights, trademarks, trade names, treasury stock,
franchises, copyrights, licenses, permits, goodwill and other intangible
assets classified as such in accordance with generally accepted accounting
principles and appearing on the balance sheet as of the Effective Date) after
all appropriate adjustments in accordance with generally accepted accounting
principles applied on a consistent basis (including, without limitation,
reserves for doubtful receivables, obsolescence, depreciation and amortization
and excluding the amount of any write-up or revaluation of any asset) over
(ii) Consolidated Total Liabilities, in each case computed and consolidated in
accordance with generally accepted accounting principles applied on a
consistent basis.
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<PAGE>
"Consolidated Total Unsubordinated Liabilities" shall mean all items
which, in accordance with generally accepted accounting principles applied on
a consistent basis, would properly be included on the liability side of the
balance sheet (other than Subordinated Debt, capital stock, capital surplus
and retained earnings), as of the date on which the amount of Consolidated
Total Unsubordinated Liabilities is to be determined, of the Borrower and its
Subsidiaries computed and consolidated in accordance with generally accepted
accounting principles applied on a consistent basis.
"Contractual Obligation" as to any Person, any provision of any
security issued by such Person or any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Conversion Request" has the meaning set forth in Section 2.04.
"Default" shall mean any of the events specified in Article VIII
hereof, whether or not any requirement for the giving of notice or the lapse
of time or both or any other condition has been satisfied.
"EBIT" shall mean the Consolidated Net Income Available For Interest
Charges.
"EBITDA" shall mean the sum of Consolidated Net Income Available for
Interest Charges, plus depreciation and amortization.
"Environmental Laws" shall mean any and all Federal, State, local or
municipal laws, rules orders, regulations, statutes, ordinances, codes,
decrees or requirements of any Governmental Authority regulating, relating to
or imposing liability or standards of conduct concerning environmental
protection matters, including, without limitation, Hazardous Materials, as now
or may hereafter be in effect.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time. Section references to ERISA are to ERISA,
as in effect at the date of this Agreement and any subsequent provisions of
ERISA, amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower or a Subsidiary would be deemed to
be a member of the same "controlled group" within the meaning of Section
414(b), (c), (m) and (o) of the Code.
"Eurodollar Rate Loan" shall mean a Revolving Credit Loan or a Term
Loan (or portion thereof) bearing interest in accordance with Section 2.10 of
this Agreement.
"Eurodollar Rate" and "Eurodollar Reserves" shall have the meaning
specified in the definition of "Adjusted Eurodollar Rate".
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<PAGE>
"Event of Default" shall mean any Event of Default set forth in
Article VIII.
"Executive Officer" shall mean either the Chairman, the President,
the Chief Financial Officer, the Secretary, any Vice-President, Treasurer of
the Borrower and their respective successors, if any, designated by the Board
of Directors.
"Expiration Date" shall mean the final payment date of any Term Loan,
whether as stated by its terms or by acceleration hereunder.
"Fixed Rate Loan" shall mean any Eurodollar Rate Loan, Absolute Rate
Loan or Treasury Rate Loan.
"Funded Debt" shall mean, with respect to any Person, all
Indebtedness of such Person for money borrowed which by its terms matures more
than one year from the date as of which such Funded Debt is incurred, and any
Indebtedness of such Person maturing within one year from such date which is
renewable or extendable at the option of the obligor to a date beyond one year
from such date (whether or not theretofore renewed or extended), including any
such Indebtedness renewable or extendable at the option of the obligor under,
or payable from the proceeds of other Indebtedness which may be incurred
pursuant to, the provisions of any revolving credit agreement or other similar
agreement plus the aggregate amount of guaranties by that Person of all such
liabilities of other Persons.
"GAAP" and "Generally Accepted Accounting Principles" shall have the
meanings set forth in Section 1.02.
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Hazardous Materials" includes, without limit, any flammable
explosives, radioactive materials, hazardous materials, hazardous wastes,
hazardous or toxic substances, defined in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C.
Sections 9601, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 9601, et seq.), and in the
regulations adopted and publications promulgated pursuant thereto, or any
other laws.
"Indebtedness" shall include all obligations, contingent and
otherwise, which in accordance with generally accepted accounting principles
should be classified upon the obligor's balance sheet as liabilities, but in
any event including liabilities (whether or not they should be so classified
upon such balance sheet) secured by any lien existing on property owned or
acquired subject thereto, whether or not the liability secured thereby shall
have been assumed, and all guarantees.
"Insolvency" shall mean with respect to any Multiemployer Plan, the
condition that such plan is insolvent within the meaning of such term used in
Section 4245 of ERISA.
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Insolvent" shall mean the condition of Insolvency.
"Interbank Market" shall mean the London interbank market.
"Interest Charges" for any period shall mean all interest and all
amortization of debt discount and expense on all Indebtedness of the Borrower
and its Subsidiaries.
"Interest Payment Date" shall mean (i) as to any Treasury Rate Loan,
Prime Rate Loan and Absolute Rate Loan, the last day of each calendar quarter
during the term thereof commencing with the calendar quarter immediately
following the date of such Loan and (ii) as to any Eurodollar Rate Loan,
the last day of each Interest Period with respect thereto, and the last day of
any calendar quarter ending during such Interest Period, and (iii) the
Termination Date or Expiration Date, as the case may be.
"Interest Period" means:
(a) as to any Eurodollar Rate Loan, the period commencing on
the Borrowing Date of such Loan and ending on the numerically
corresponding day (or if there is no numerically corresponding day,
the last day) of the calendar month that is one, two, three or six
months, thereafter, as the Borrower may elect, and
(b) as to any Treasury Rate Loan or any Absolute Rate Loan,
the period requested by the Borrower and agreed to by the Bank as
available in respect of such Treasury Rate or Absolute Rate Loan and
indicating the period over which such Term Loan (or part thereof)
shall be a Treasury Rate or Absolute Rate Loan, which at the time of
selection shall be from the Borrowing Date to the Expiration Date of
such Treasury Rate or Absolute Rate Loan;
provided, however, that (i) if any Interest Period would end on a day which
shall not be a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, with respect to Eurodollar Rate Loans
only, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the first preceding Business
Day and (ii) no Interest Period may be selected for any Eurodollar Rate Loan
which expires later than the Termination Date or the Expiration Date, as the
case may be and (iii) if any Interest Period for any Eurodollar Rate Loan that
is a part of a Term begins prior to any principal repayment date and would
otherwise end after such principal repayment date, the Interest Period for
that portion of the principal amount of such Loan which is to be repaid by the
Borrower in accordance herewith shall terminate on such principal repayment
date, and the Interest Period for the remaining principal of such Loan shall
remain unaffected by such termination notwithstanding the provisions of the
preceding clause.
"Loan(s)" shall mean a loan by the Bank to the Borrower pursuant to
Article II hereof and shall refer to a Prime Rate Loan, Absolute Rate Loan,
Eurodollar Rate Loan or Treasury Rate Loan, each of which shall be a "Type" of
Loan.
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"Loan Documents" shall mean collectively, the Agreement, the Notes,
any agreements or documents referred to in Article IV hereof and all other
documents, certificates and instruments executed in connection therewith.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of the Borrower to perform its obligations under the Loan Documents,
or (c) the validity or enforceability of any of the Loan Documents or the
rights or remedies of the Bank hereunder or thereunder.
"Multiemployer Plan" shall mean a Plan which is a Multiemployer Plan
as defined in Section 4001(a)(3) of ERISA.
"Note(s)" shall mean the Revolving Credit Notes and the Term Notes.
"Operating Agreement" shall mean the Operating Agreement dated
October 10, 1986 between Raymond Leasing and Raymond, as may be amended from
time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title 1 of ERISA or any successor
thereto.
"Person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency
or political subdivision thereof.
"Plan" shall mean, at any particular time, any employee benefit plan
which is covered by ERISA and in respect of which a Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate" shall mean the rate of interest per annum announced from
time to time by the Bank as its prime rate; each change in the Prime Rate
shall be effective on the date such change is announced.
"Prime Rate Loan" means a Loan bearing interest in accordance with
Section 2.08 of this Agreement.
"Raymond Working Capital" shall mean the total of Manufacturing
Current Assets, minus Manufacturing Current Liabilities as such terms are
reflected on Raymond's consolidated financial statements.
"Reportable Event" shall mean any of the events described in Section
4043(b) of ERISA other than those events as to which the twenty day notice
period is waived under Subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
Section 2615.
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"Revolving Credit Loan" shall mean any Loan to the Borrower pursuant
to Section 2.01.
"Revolving Credit Note" shall mean the promissory note of the
Borrower delivered pursuant to Section 2.02.
"Senior Indebtedness" shall mean the Notes and all other Indebtedness
of the Borrower for money borrowed, whether outstanding on the date hereof or
hereafter created or incurred, which has not been approved by the Bank in
writing as being subordinate and junior to the Loans, and which is permitted
hereby.
"Single Employer Plan" shall mean any plan which is not covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Short Term Indebtedness" shall mean Indebtedness for money borrowed
with a maturity of less than 365 days.
"Subordinated Debt or Indebtedness" shall mean all Indebtedness which
is subordinated in right of payment, in form and substance satisfactory to the
Bank to all Indebtedness of the Borrower to the Bank, including the currently
outstanding Raymond 6.50% Convertible Subordinated Debentures of $57,500,000
due 12/15/2003 which exists in form and substance satisfactory to the Bank.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which at least a majority of the securities or other ownership
interests having ordinary voting power (absolutely or contingently) for the
election of directors or other persons performing similar functions are at the
time owned directly or indirectly by such Person, but excluding Unconsolidated
Investees.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the reserve percentages expressed as a
decimal established by the Board of Governors of the Federal Reserve System
and any other banking authority for determining the reserve requirements of
the Bank in respect of new non-personal negotiable time deposits in dollars of
over $100,000 with maturities approximately equal to the applicable Interest
Period, such reserve requirements including, without limitation, those imposed
under Regulation D of such Board of Governors. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change in such
percentage
"Term Loan" shall mean any term loan pursuant to Section 2.04 hereof.
"Term Note" shall mean the promissory note of the Borrower delivered
pursuant to Section 2.05 hereof.
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"Termination Date" shall mean the earlier of August 31, 1997 or the
date the Commitment may otherwise be terminated in accordance herewith.
"Treasury Rate" shall mean a fixed rate of interest equal to the
annual yield on United States Treasury Securities having the same maturity as
the Treasury Rate Loan, or the portion thereof, to which such rate applies,
determined on the Business Day prior to the Borrowing Date for such Treasury
Date Loan.
"Treasury Rate Loan" means a Term Loan, or a portion thereof, bearing
interest at the Treasury Rate in accordance with Section 2.09.
"Type" shall have the meaning specified in definition of "Loan".
"Unconsolidated Investees" shall mean any Persons in which either
Borrower has an investment and which does not report its results on a
consolidated basis with the Borrowers.
"Unfunded Current Liability" of any Plan means the amount, if any, by
which the present value of the accrued benefits under the Plan as of the close
of its most recent plan year exceeds the fair market value of the assets
allocable thereto, determined in accordance with Section 412 of the Code.
"Working Capital" shall mean for the Borrower and its Subsidiaries,
the amount by which Consolidated Current Assets exceed Consolidated Current
Liabilities.
SECTION 1.02. Accounting Terms/Other Definitional Provisions. (a)
Except as otherwise herein specifically provided, each accounting term used
herein shall have the meaning given to it under Generally Accepted Accounting
Principles. "Generally Accepted Accounting Principles" ("GAAP") shall mean
those generally accepted accounting principles and practices which are
recognized as such by the American Institute of Certified Public Accountants
acting through the Financial Accounting Standards Board ("FASB") or through
other appropriate boards or committees thereof and which are consistently
applied for all periods so as to properly reflect the financial condition, and
the results of operations and changes in financial position, of the Borrower,
except that any accounting principle or practice required to be changed by the
FASB (or other appropriate board or committee of the FASB) in order to
continue as a generally accepted accounting principle or practice may be so
changed. Any dispute or disagreement between the Borrower and the Bank
relating to the determination of Generally Accepted Accounting Principles
shall, in the absence of manifest error, be conclusively resolved for all
purposes hereof by the written opinion with respect thereto, delivered to the
Bank, of independent accountants selected by the Borrower and approved by the
Bank for the purpose of auditing the periodic financial statements of the
Borrower.
(b) Meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
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II. LOANS
SECTION 2.01. Revolving Credit Loans. (a) Subject to the terms and
conditions, and relying upon the representations and warranties, set forth
herein, the Bank agrees to make loans (individually a "Revolving Credit Loan"
and, collectively, the "Revolving Credit Loans") to the Borrowers at any time
or from time to time on or after the date hereof and until the earlier of the
Termination Date or the date the Commitment shall have been terminated in
accordance with the terms hereof, in an aggregate principal amount not in
excess of $10,000,000 at any time (the "Commitment"). Within the foregoing
limits, each Borrower may borrow, hereunder on or after the date hereof and
prior to the Termination Date, repay or reborrow subject to the terms,
provisions and limitations set forth herein. After the Termination Date, no
amounts repaid may be reborrowed. The obligations of the Borrowers in regard
to payment of the Loans hereunder are several not joint, it being expressly
agreed and understood that each Borrower shall be liable to the Bank for only
the Loans and interest accruing thereon made to such Borrower. Notwithstanding
the foregoing, each Borrower shall be jointly and severally liable for any
commitment or facility fees, increased costs, indemnities and expenses
hereunder and performance of the terms and conditions of this Agreement.
(b) Revolving Credit Loans made by the Bank on any one day shall be
in any combination of Prime Rate Loans and Eurodollar Rate Loans, provided,
that each Prime Rate Loan shall be in an amount not less than $250,000 and in
integral multiples of $250,000, and each Eurodollar Rate Loan shall be in an
amount not less than $500,000 and in integral multiples of $100,000. The
initial Revolving Credit Loan by the Bank shall be made against delivery to
the Bank of the Borrowers Revolving Credit Note, payable to the order of the
Bank, as described in Section 2.02 hereof and upon delivery of the other
documentation required in Article IV herein.
(c) Each Revolving Credit Loan made as a Prime Rate Loan shall be
made upon one (1) Business Day's and each Eurodollar Rate Loan shall be made
upon three (3) Business Days' prior written, telegraphic or facsimile notice
from the Borrower to the Bank. Each such notice (a "Notice of Borrowing")
shall be in substantially the form of Schedule I hereto and shall specify (i)
the requested date of such Loan, (ii) the requested Type of Loan, (iii) the
requested Interest Period for such Loan, if any, and (iv) the requested amount
of such Loan.
SECTION 2.02. Revolving Credit Note. The Revolving Credit Loans by
the Bank shall be evidenced by promissory notes (each a "Revolving Credit
Note"), substantially in the form attached hereto as Exhibits A and A-1,
appropriately completed by the appropriate Borrower, duly executed and
delivered on behalf of each Borrower and payable to the order of the Bank in
the principal amount equal to the Commitment. The date and amount of each
Revolving Credit Loan and the date and amount of each payment or prepayment of
principal of any Revolving Credit Loan shall be recorded on the grid schedule
annexed to the appropriate Revolving Credit Note and each Borrower authorizes
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the Bank to make such recordation The Revolving Credit Notes and grid
schedules shall be presumptive evidence of the Revolving Credit Loans, absent
manifest error. The aggregate unpaid amount of the Revolving Credit Loans to a
Borrower at any time shall be the principal amount owing on the Revolving
Credit Note of such Borrower at such time. The aggregate principal amount
outstanding on each Revolving Credit Note shall be payable on the Termination
Date. All accrued and unpaid interest on the Revolving Credit Loans shall be
payable on each Interest Payment Date and on the Termination Date (if such
date is not an Interest Payment Date); provided, however, that if any such day
is not a Business Day, such accrued interest, if any, shall be payable on the
next succeeding Business Day with additional accrued interest until paid.
SECTION 2.03. Interest on Revolving Credit Loans. Each Revolving
Credit Loan shall bear interest in accordance with Section 2.08, if it is a
Prime Rate Loan and Section 2.10, if it is a Eurodollar Rate Loan.
SECTION 2.04. Term Loan. At any time and from time to time until the
Termination Date either Borrower may deliver to the Bank a request (a
"Conversion Request") that all or a portion of the then outstanding principal
amount of Revolving Credit Loans made to such Borrower be converted to a Term
Loan. The Bank agrees that provided no Event of Default exists hereunder, and
upon the simultaneous payment or prepayment, as the case may be, (which may be
from the proceeds of such Term Loan) in full of the principal of and interest
on the Revolving Credit Loans then being converted to such Term Loan to make a
three four or five year term loan (the "Term Loan") to the requesting Borrower
either on a date not less than 3 days after the Conversion Request, if all
Loans to be converted are Prime Rate Loans, or if any converted Loan is a
Fixed Rate Loan, on the last day of the latest expiring Interest Period then
in effect for the Revolving Credit Loans being converted. The Term Loan shall
be in the principal amount contained in the Conversion Request, and may be in
any combination of Prime Rate Loans and Fixed Rate Loans; provided that each
Term Loan shall be in a principal amount of not less than $1,000,000;
provided, further, that any request for a conversion to an Absolute Rate Loan
or a Treasury Rate Loan must be for an Interest Period co-extensive with the
term remaining between the Borrowing Date for such new Loan and the Expiration
Date (as defined in Section 2.05). The Conversion Request shall be in
substantially the form of Schedule I to this Agreement and shall specify (i)
the requested amount and the requested Revolving Loans to be converted, (ii)
the requested date of Conversion, (iii) the requested Type(s) of Term Loans,
and the amount of each Type of Loan, if more than one, (iv) the requested term
of the Term Loan, and (v) the Interest Period for any portion of such Term
Loan requested to be a Eurodollar Rate Loan. The Bank shall make each Term
Loan hereunder against delivery to it of the Borrower's Term Note payable to
the Bank, as described in Section 2.05 hereof. The principal amount of any
Term Loans made under this section when made shall act as a reduction of the
Bank's Commitment to make any Revolving Credit Loans in such principal
amounts, provided, however, that prior to the Termination Date, at the time of
each principal installment payment, such Commitment to make Revolving Credit
Loans shall be deemed re-instated by the amount of such principal payment.
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SECTION 2.05. Term Note; Grid Schedules. (a) Each Term Loan shall be
evidenced by a promissory note ("Term Note") substantially in the form
attached hereto as Exhibit B, appropriately completed, payable to the order of
the Bank, duly executed and delivered on behalf of the appropriate Borrower,
dated the Borrowing Date and in the principal amount of such Term Loan. The
principal amount outstanding on such Term Note shall be payable as to
principal in twelve (12), sixteen (16) or twenty (20) equal consecutive
quarterly installments and payable on the last day of each calendar quarter,
commencing on the first such day to occur after such Term Loan Borrowing Date
with a final payment due on the last day of the 12th, 16th or 20th calendar
quarter thereafter as applicable (the "Expiration Date"). The date and amount
of each Term Loan, each Term Loan term, each applicable interest rate and
related Interest Period, and the date and amount of each payment or prepayment
of principal of such Term Loan shall be recorded on the grid schedule annexed
to such Term Note, and each Borrower authorizes the Bank to make such
recordation. Each Term Note and grid schedule shall be presumptive evidence of
such Term Loan made by the Bank, absent manifest error.
(b) All said notations and endorsements on the grid schedules annexed
to all Notes shall, in the absence of manifest error, be conclusive as to such
notations and endorsements, provided, however, that the failure to make said
notation or endorsement with respect to any Loan or payment shall not limit or
otherwise affect the obligation of any Borrower under the Agreement or the
Notes.
SECTION 2.06. Interest on the Term Loan. Each Term Loan shall bear
interest in accordance with Section 2.07, to the extent that it is an Absolute
Rate Loan, Section 2.08, to the extent that it is a Prime Rate Loan, Section
2.10, to the extent that it is a Eurodollar Rate Loan, and Section 2.09, to
the extent that it is a Treasury Rate Loan.
SECTION 2.07. Interest on Absolute Rate Loans. The Borrower shall pay
interest on the unpaid principal amount of each Absolute Rate Loan from the
Borrowing Date of such Loan until the date such principal amount is due and
payable, on each Interest Payment Date for such Loan at an interest rate per
annum equal to the Absolute Rate applicable to such Loan. Notwithstanding any
other provision of this Agreement, the Absolute Rate so quoted by the Bank
shall be determined in the sole discretion of the Bank as described in the
definitional section hereof, and the Bank shall not be required to quote a
rate for a proposed Absolute Rate Loan.
SECTION 2.08. Interest on Prime Rate Loans. The Borrower shall pay
interest on the unpaid principal amount of each Prime Rate Loan from the
Borrowing Date of such Loan until the date such principal amount is due and
payable, on each Interest Payment Date for such Loan at an interest rate per
annum equal to the Prime Rate.
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<PAGE>
SECTION 2.09. Interest on Treasury Rate Loans. The Borrower shall pay
interest on the unpaid principal amount of each Treasury Rate Loan from the
Borrowing Date of such Loan until the date such principal amount is due and
payable on each Interest Payment Date for such Loan, at the Treasury Rate
applicable to such Loan plus the appropriate margin. For a Treasury Rate Loan
whose term is up to three years, the margin shall be 1%, for a Loan of
between three and four years, the margin shall be 1.125%, and for a Loan of
more than four years, the margin shall be 1.25%.
SECTION 2.10. Interest on Eurodollar Rate Loans. The Borrower shall
pay interest on the unpaid principal amount of each Eurodollar Rate Loan
from the Borrowing Date of such Loan until the date such principal amount
is due and payable, on each Interest Payment Date for such Loan at an interest
rate per annum equal to the Adjusted Eurodollar Rate plus .5%.
SECTION 2.11. Continuation and Conversion of Loans. The Borrower
shall have the right at any time on three (3) Business Days' prior irrevocable
written notice to the Bank, to continue any Eurodollar Rate Loan or portion
thereof into a subsequent Interest Period if applicable, and to convert any
Loan or portion thereof into a Loan of a different Type, subject to the
selection of Interest Periods in accordance with the definition thereof and to
the following conditions precedent:
(a) no Event of Default shall have occurred and be
continuing at the time of such continuation or conversion;
(b) in the case of a conversion of a Prime Rate Loan into a
Fixed Rate Loan, or of a Eurodollar Rate Loan into another Type of
Fixed Rate Loan, the aggregate principal amount of the Loan converted
shall not be less than $250,000;
(c) each conversion shall be effected by the Bank by
applying the proceeds of the new Loan to the Loan (or portion thereof)
being converted, and accrued interest on the Loan (or portion thereof)
being converted shall be paid by the Borrower at the time of
conversion;
(d) a Eurodollar Rate Loan may be converted to another Type
of Loan only on the last day of its Interest Period, and, while Prime
Rate Loans and Eurodollar Rate Loans may be converted into Absolute
Rate Loans and Treasury Rate Loans, no Absolute Rate Loan or Treasury
Rate Loan may be converted into another Type of Loan;
(e) each request for a Eurodollar Rate Loan or a
continuation thereof which shall fail to state an applicable
Interest Period shall be deemed to be a request for an Interest
Period of one month's duration;
(f) if the last day of an Interest Period with respect to a
Eurodollar Rate Loan that is to be converted to another Type of Fixed
Rate Loan is not a Business Day, then such conversion shall be made
on the next succeeding Business Day and during the period from the
last such day of an Interest Period to such succeeding Business Day
such Loan shall bear interest as if it were an Prime Rate Loan;
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(g) in the event that the Borrower does not give notice to
continue any Eurodollar Rate Loan into a subsequent Interest Period,
the Borrower shall be deemed to have requested that such Loan
(unless repaid) be converted to a Prime Rate Loan at the expiration
of the then current Interest Period; and
(h) any conversion of a Revolving Credit Loan into a Term
Loan must also comply with the provisions of Section 2.04 hereof.
SECTION 2.12. Prepayment of Loans. (a) Subject to the provisions of
Sections 2.12(b), 2.12(d), 2.17, 2.20 and 2.21 hereof, the Borrower may, by 11
a.m. of the day of prepayment in the case of a Prime Rate Loan and three (3)
Business Days' notice to the Bank in the case of a Fixed Rate Loan, prepay the
outstanding amount of any Loan in whole or in part with accrued interest to the
date of such prepayment on the amount prepaid; provided, however, that any
prepayment of any Eurodollar Rate Loan shall be made on the last day of an
Interest Period for such Loan; and provided, further, that each partial
prepayment of any Loan shall be in a principal amount not less than $500,000 and
integral multiples thereof, except in the case of a Term Loan with a balance
of less than $500,000 which may be prepaid in full. Each prepayment of a Term
Loan shall be permanent provided, however, that prior to the Termination Date,
as described in Section 2.04 hereof such payments shall cause a re-instatement
in such amount of the Bank's Commitment to make Revolving Credit Loans.
(b) The Borrower shall reimburse the Bank on demand for any loss
incurred or to be incurred by it in the reemployment of the funds released by
any prepayment or conversion of any Fixed Rate Loan required or permitted by
any provision of this Agreement, in each case if such Loan is prepaid or
converted other than on the last day of an Interest Period for such Loan. The
Borrower further agrees to reimburse the Bank on demand for any loss incurred
or to be incurred by it in the reemployment of the funds released by any
refusal by the Borrower to accept any requested Fixed Rate Loan or any
requested conversion thereto.
(c) Each prepayment of any Term Loan shall be applied to the
installments thereof in the inverse order of maturity and accompanied by
accrued interest on the amount of such prepayment to the date thereof.
(d) In the event that there is a partial or complete prepayment of
any Fixed Rate Loan for any reason (including, without limitation, as a result
of acceleration upon default or otherwise), the Borrower shall pay to the Bank
an amount computed in accordance with the provisions of this paragraph (the
"Prepayment Premium"). The Prepayment Premium shall equal the aggregate of the
present values of the streams of payments of all installments of such Fixed
Rate Loan being fully or partially prepaid. For each installment, the present
value of the stream of payments shall be calculated in accordance with
generally accepted practices as determined by the Bank, using as bases for
calculation: (i) the Semiannual Stream of Payments (as hereinafter defined),
(ii) the number of whole and partial semiannual periods between the date of
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prepayment to the due date of such installment (for the purpose of this
calculation, any partial period shall be deemed to be the first period), and
(iii) the Treasury Yield (as hereinafter defined) adjusted to a semiannual
basis. For each installment, the "Semiannual Stream of Payments" shall mean a
stream of payments with each component equal to the product (pro-rated
in the case of a partial semiannual period) of the amount of principal of such
installment prepaid and one-half (1/2) of the excess (if any) of the Effective
Annual Interest Rate (as hereinafter defined) over the annual yield of United
States Treasury obligations offered on the secondary market as of the date of
prepayment (the "Treasury Yield") with maturities as close to the aforesaid due
date as are reasonably available on a constant maturity yield curve as
determined by the Bank (if necessary, interpolating such yield on a linear
basis). If the Effective Annual Interest Rate does not exceed the Treasury
Yield as computed in accordance with the preceding sentence, no Prepayment
Premium shall be payable hereunder. The "Effective Annual Interest Rate" shall
mean the stated interest rate of such Fixed Rate Loan, adjusted, if necessary,
to reflect the same basis of calculation as the Treasury Yield. The Bank's
calculation of the Prepayment Premium shall be conclusive absent manifest
error, and the Prepayment Premium shall be payable on demand. In the event
that the Prepayment Premium, as computed in accordance with the provisions of
this paragraph, shall exceed the maximum amount permissible by law, the
amount of the Prepayment Premium shall be reduced to such maximum permissible
amount.
SECTION 2.13. Reduction or Termination of the Commitment. The
Borrowers acting jointly shall have the right, upon at least two (2) Business
Days' prior written or telephonic notice (promptly confirmed in writing) to
the Bank, at any time to terminate or from time to time reduce the
Commitment without premium or penalty; provided, however, that the
Commitment may not be reduced to the extent that following such reduction the
unpaid principal of the Notes would exceed the Commitment and provided
further that, any acceleration of the Termination Date shall be accompanied
by the payment of Commitment Fee then accrued hereunder.
SECTION 2.14. Fees. The Borrowers agree to pay to the Bank, in
consideration of its Commitment, a commitment fee ("Commitment Fee") of .3%
per annum on the average daily unused portion of the Commitment (based on a
year of 360 days), payable quarterly commencing on the first day of the second
quarter following the Closing Date.
SECTION 2.15, Default Rate of Interest: Late Payment Penalty. (a)
Upon the occurrence of a Default or an Event of Default, the interest rates
applicable to the Loans shall immediately without further action by this Bank
be increased to 3% above the rate(s) of interest then in effect on the Loans
and shall be deemed converted at the end of each then Interest Period to Prime
Rate Loans and be deemed to bear interest at a rate equal to 2% above the Prime
Rate until paid in full.
(b) Borrower also agrees to pay a late charge on any principal and/or
interest payments not paid when due at a fluctuating interest rate per annum
equal to 2% above the Prime Rate calculated upon the amount due until the
date of payment.
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SECTION 2.16. Application of Payments and Computations. All
computations of the Absolute Rate, Prime Rate, Treasury Rate and Eurodollar
Rate and of fees, overdue payment interest charges and penalties hereunder
shall be made by the Bank on the basis of a year of 360 days, for the actual
number of days (including the first day but excluding the last day) occurring
in the period for which such interest is payable.
SECTION 2.17. Funds; Manner of Payment. Each Loan and each payment
and prepayment of principal and interest on the Notes shall be made in federal
or other immediately available funds without set-off or counterclaim to the
Bank. Whenever any payment to be made hereunder or under any Note shall be
stated to be due, or whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, (i) such payment shall be
made and the last day of such Interest Period shall occur, on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may
be, except that (ii) with respect to Eurodollar Rate Loans, if such next
succeeding Business Day would fall in the next calendar month, such payment
shall be made and such Interest Period shall end on the first preceding
Business Day. Each Borrower hereby authorizes the Bank to charge its accounts
maintained with the Bank for all principal and interest payments and any fees
due hereunder.
SECTION 2.18. Capital Adequacy. If the Bank shall have determined
that, after the date hereof, the adoption of any applicable 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
the Bank (or any lending office of the Bank) or the Bank'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 the
Bank's capital or on the capital of the Bank's holding company, if any, as a
consequence of its obligations hereunder to a level below that which the Bank
or the Bank's holding company could have achieved but for such adoption,
change, compliance or directive (taking into consideration the Bank's policies
and the policies of the Bank's holding company with respect to capital
adequacy) by an amount deemed by the Bank to be material, then from time to
time the Borrower shall pay to the Bank such additional amount or amounts as
will compensate the Bank or the Bank's holding company for any such reduction
suffered.
SECTION 2.19. Inability to Determine Rate. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Fixed Rate Loan, the Bank shall have determined (which
determination shall, in the absent of manifest error, be conclusive and
binding upon the Borrower) that such rate will not accurately reflect the cost
to the Bank of making or funding the principal amount of a Fixed Rate Loan
during such Interest Period, or that reasonable means do not exist for
ascertaining the rate on the Fixed Rate Loan, the Bank shall, as soon as
practicable thereafter, give written, telegraphic, telephonic or facsimile
notice of such determination to the Borrower and any request by the Borrower
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for a Fixed Rate Loan conversion or continuation of a Fixed Rate Loan shall be
deemed a request for a Prime Rate Loan or another Type of Fixed Rate Loan if
it is then currently available. After such notice shall have been given, and
until the circumstances giving rise to such notice no longer exist, each
request for a Fixed Rate Loan shall be deemed to be a request for a Prime Rate
Loan or another Type of Fixed Rate Loan if it is then currently available.
SECTION 2.20. Other Events. (a) In the event that any enactment of or
change after the date hereof in applicable law, regulation, condition,
directive or interpretation thereof (including any request, guideline or
policy whether or not having the force of law and including, without
limitation, Regulation D promulgated by the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect) by any
authority charged with the administration or interpretation thereof:
(i) subjects the Bank to any tax with respect to the Loans
hereunder or changes the basis of taxation of payment to the Bank of
principal of or interest on any Loan or any Commitment hereunder or
any other amounts payable hereunder (other than any tax measured by
or based upon the overall net income of the Bank or any branch or
office thereof, imposed by the United States of America or by any
other jurisdiction in which the Bank is qualified to do business or
any political subdivision or taxing authority therein); or
(ii) imposes, modifies or deems applicable any reserve or
deposit requirements against any assets held by, deposits with or for
the account of, or loans or commitments by, an office of the Bank in
connection with payments by the Bank hereunder; or
(iii) imposes upon the Bank or the Interbank Market any
other condition with respect to any amount paid or payable to or by
the Bank pursuant to this Agreement,
and the result of any of the foregoing is to increase the cost to the Bank of
making the payment or maintaining its Commitment or any Term Loan or to reduce
the amount of the payment receivable by the Bank hereunder or to require the
Bank to make the payment on or calculated by reference to the gross amount of
the sum received by it pursuant hereto, in each case by an amount which the
Bank in its reasonable judgment deems material, then;
(A) the Bank shall promptly notify the Borrower in writing of the
happening of such event;
(B) the Bank shall promptly deliver to the Borrower a certificate
stating the change which has occurred or the reserve
requirements or other conditions which have been imposed on the
Bank or the request, direction or requirement with which it has
complied, together with the date thereof, the amount of such
increased cost, reduction or payment and the way in which
such amount has been calculated; and
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(C) the Borrower shall pay to the Bank, within 30 days after
delivery of the certificate referred to in clause (B) above,
such an amount or amounts as will compensate the Bank for such
additional cost, reduction or payment.
The Bank agrees to designate a different office of the Bank as its lending
office for Eurodollar Rate Loans if the designation would avoid or reduce any
amount payable by the Borrower to the Bank pursuant to this paragraph (a);
provided, however, that such designation need not be made if it would result
in any additional costs, expenses or risks to the Bank that are not reimbursed
by the Borrower pursuant hereto or would be in any other respect prejudicial
to the Bank. If the Bank makes a demand for compensation pursuant to this
paragraph (a), the Borrower may at any time, upon at least three Business Days'
prior written or telegraphic notice to the Bank either (i) repay in full
any outstanding Fixed Rate Loan that is so affected, together with accrued
interest thereon to the date of prepayment, notwithstanding any
contrary provisions of Section 2.12(a), or (ii) convert such Loan to an
available Loan of a different Type, notwithstanding the provisions of
Section 2.11(b), (d) and (f).
(b) Failure on the part of the Bank to demand compensation under
paragraph (a) above on any one occasion shall not constitute a waiver of its
right to demand such compensation on any other occasion and failure on the
part of the Bank to deliver any certificate in a timely manner shall not in
any way reduce any obligations of the Borrower to the Bank under this
Section 2.20.
SECTION 2.21. Change in Legality. (a) Notwithstanding anything to the
contrary contained elsewhere in this Agreement, if any change after the date
hereof in any law or regulation or in the interpretation thereof by any
governmental authority charged with the administration thereof shall make it
unlawful (based on the opinion of any counsel, whether in-house, special or
general, for the Bank) for the Bank to make or maintain any Type of Fixed Rate
Loan or to give effect to its obligations as contemplated hereby with respect
to any Type of Fixed Rate Loan, then, by written notice to the Borrower by
the Bank, the Bank may:
(i) declare that such Type of Fixed Rate Loans will not
thereafter be made by the Bank hereunder, whereupon the Borrower
shall be prohibited from requesting such Type of Loans from the Bank
hereunder unless such declaration is subsequently withdrawn; and the
Bank agrees to withdraw any such declaration if and to the extent
that the making and/or maintenance by the Bank of such Type of Fixed
Rate Loans shall cease to be unlawful; and
(ii) require that all outstanding Fixed Rate Loans of the
affected Type made by it to be converted to Prime Rate Loans,
whereupon all such Loans shall be automatically converted to Prime
Rate Loans as of the effective date of such notice as provided in
paragraph (b) below (notwithstanding the provisions of Section 2.11).
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(b) For purposes of this Section 2.21, a notice to the Borrower by
the Bank pursuant to paragraph (a) above shall be effective, if lawful and if
any affected Type of Fixed Rate Loans shall then be outstanding, on the last
day of then current Interest Period; otherwise, such notice shall be effective
on the date of receipt by the Borrower.
(c) The Bank agrees to designate a different office of the Bank as
its lending office for Eurodollar Rate Loans if such designation will effect
compliance with the law or regulation or interpretation thereof invoking the
provisions of this Section 2.21; provided, however, that such designation
need not be made if it would result in any additional costs, expenses or risks
to the Bank that are not reimbursed by the Borrower pursuant hereto or would
be in any other respect prejudicial to the Bank.
III. REPRESENTATIONS AND WARRANTIES
Each Borrower, for itself, represents and warrants to the Bank,
that:
SECTION 3.01. Organization. Corporate Powers, etc. The Borrower (i)
is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware or New York, as applicable, and (ii)
has the power and authority to own its properties and to carry on its business
as now being conducted, (iii) is duly qualified to do business in every
jurisdiction wherein the conduct of its business or the ownership of its
properties is such as to require such qualification and (iv) has the corporate
power to execute, deliver and perform the Loan Documents.
SECTION 3.02. Corporate and Governmental Authorization: No
Contravention. The execution, delivery and performance by the Borrower of the
Loan Documents and the borrowings by the Borrower hereunder (a) has been duly
authorized, (b) will not violate (i) any provision of law or any governmental
rule or regulation applicable to the Borrower, (ii) any order of any court or
other agency of government binding on the Borrower or any indenture, agreement
or other instrument to which the Borrower is a party, or by which the Borrower
or any of its property is bound, and (c) will not be in conflict with, result
in a breach of or constitute (with due notice and/or lapse of time) a default
under, any such indenture, agreement or other instrument, or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of its property or assets other than as contemplated by
the Loan Documents. Each person executing the Loan Documents has full
authority to execute and deliver same for and on behalf of the Borrower
SECTION 3.03. Financial Condition. (a) The Borrower has furnished the
Bank with consolidated financial statements of it and its Subsidiaries for the
fiscal year ending December 31, 1994, audited and certified by Ernst & Young
together with unaudited statement/balance sheet and the related statements of
income and retained earnings for the period ending June 30, 1995. Such
financial statements were prepared in conformity with Generally Accepted
Accounting Principles, and present fairly the financial condition of the
Borrower and its Subsidiaries and as of the date of such financial statements
and the results of operations for the period covered thereby.
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(b) Neither the Borrower nor any of its consolidated Subsidiaries
had, at the date of the most recent balance sheet referred to above, any
material contingent obligation, contingent liability or liability for taxes,
or any long-term lease or unusual forward or long-term commitment, including,
without limitation, any interest rate or foreign currency swap or exchange
transaction or other financial derivative, which is not reflected in the
foregoing statements or in the notes thereto.
(c) During the period from June 30, 1995 to and including the date
hereof there has been no sale, transfer or other disposition by the Borrower
or any of its consolidated Subsidiaries of any material part of its business
or property and no purchase or other acquisition of any business or property
(including any capital stock of any other Person) material in relation to the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries at June 30, 1995.
(d) Since June 30, 1995 there has been no development or event nor
any prospective development or event, which has had or could reasonably be
expected to have a Material Adverse Effect. There is no obligation or
liability, contingent or otherwise, of the Borrower and its Subsidiaries,
which is material in amount and which is not, or shall not be, reflected in the
foregoing statements (and the related notes thereto) as of said date.
SECTION 3.04. Taxes. All assessed deficiencies resulting from
Internal Revenue Service examinations of the Federal income tax returns of the
Borrower have been discharged or reserved against. The Borrower has filed or
caused to be filed all Federal, state and local tax returns which are required
to be filed, and has paid or have caused to be paid all taxes as shown on said
returns or on any assessment received by it, to the extent that such taxes
have become due, except any such taxes that are immaterial in amount or are
being contested in good faith with appropriate reserves set aside therefor.
SECTION 3.05. Title to Properties. The Borrower has good and
marketable title to its properties and assets reflected on the most recent
balance sheet referred to in Section 3.03(a) hereof, except for such
properties and assets as have been disposed of since the date of such balance
sheet as no longer used or useful in the conduct of its business or as have
been disposed of in the ordinary course of business, and all such properties
and assets are free and clear of mortgages, pledges, liens, charges and other
encumbrances, except as required or permitted by the provisions hereof or as
disclosed in the most recent balance sheet referred to in Section 3.03(a)
hereof.
SECTION 3.06. Litigation. (a) There are no actions, suits or
proceedings (whether or not purportedly on behalf of the Borrower) pending or,
to the knowledge of the Borrower, threatened against or affecting the Borrower
or any material property of the Borrower, at law or in equity or before or by
any Federal, state, municipal or other governmental department, commission,
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board, bureau, agency or instrumentality, domestic or foreign, which involve
any of the transactions contemplated herein or which, if adversely determined
against the Borrower. would have a Material Adverse Effect; and (b) the
Borrower is not in default with respect to any judgment, writ, injunction,
decree, rule or regulation of any court or Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which would have a Material Adverse Effect.
SECTION 3.07. Agreements. The Borrower is not a party to any
agreement or instrument or subject to any charter or other corporate
restriction or any judgment, order, writ, injunction, decree or regulation
materially and adversely affecting its business, properties or assets,
operations or condition (financial or otherwise). The Borrower is not in
default in any manner which would have a Material Adverse Effect or
materially and adversely affect the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in any other
agreement or instrument to which it is a party.
SECTION 3.08. ERISA. No Reportable Event has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code. The
present value of all accrued benefits under each Single Employer Plan
maintained by the Borrower or any Commonly Controlled Entity (based on those
assumptions used to fund the Plans) did not, as of the last annual
vauation date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan allocable to such
accrued benefits. Neither the Borrower nor any Commonly Controlled Entity has
had a complete or partial withdrawal from any Multiemployer Plan, and neither
the Borrower nor any Commonly Controlled Entity would become subject to any
liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in reorganization or Insolvent.
SECTION 3.09. Proceeds of the Loan. The proceeds of the Loans shall
be used by the Borrower only for the purposes described in the preamble hereto.
SECTION 3.10. Federal Reserve Regulations. (a) The Borrower is not
engaged principally in, nor have as one of its important activities, the
business of extending credit for the purpose of purchasing or carrying any
"margin stock" (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System of the United States, as amended to the date hereof).
No part of the proceeds of the borrowings hereunder will be used to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock. No part of the proceeds of the
borrowings hereunder will be used for any purpose which violates or which is
inconsistent with the provisions of Regulation X of said Board of Governors. If
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requested by the bank, the Borrower will furnish to the Bank a statement on
Federal Reserve Form U-1.
(b) No part of the proceeds of the Loans will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately,
(i) to purchase or to carry margin stock or to extend credit to others for
the purpose of purchasing or carrying margin stock, or to refund indebtedness
originally incurred for such purpose, or (ii) for any purpose which violates
or is inconsistent with the provisions of the Regulations G, T, U, or X of the
Board of Governors of the Federal Reserve System.
SECTION 3.11. Subsidiaries. Attached hereto as Schedule II is a
correct and complete list of all the Borrower's Subsidiaries and Affiliates,
showing as to each Subsidiary, its name, the jurisdiction of its incorporation
and the percentage of such outstanding shares owned by the Borrower and other
Subsidiaries, respectively. Each of the Borrower's Subsidiaries and Affiliates
is a corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, and has all corporate powers
and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 3.12. Environmental Matters. To the best knowledge of the
Borrower, each of the representations and warranties set forth in paragraphs
(a) through (e) of this subsection is true and correct with respect to each
parcel of real property owned or operated by the Borrower and/or its
Subsidiaries (the "Properties"), except to the extent that the facts and
circumstances giving rise to any such failure to be so true and correct could
not reasonably be expected to have a Material Adverse Effect:
(a) The Properties do not contain, and have not previously
contained, in, on, or under, including, without limitation, the
soil and groundwater thereunder, any Hazardous Materials.
(b) The Properties and all operations and facilities at the
Properties are in compliance with all Environmental Laws, and there
is no Hazardous Materials contamination or violation of any
Environmental Law which could interfere with the continued operation
of any of the Properties or impair the fair market value of any
thereof,
(c) Neither the Borrower nor any of its Subsidiaries has
received any complaint, notice of violation, alleged violation,
investigation or advisory action or of potential liability or of
potential responsibility regarding environmental protection matters
or permit compliance with regard to the Properties, nor is the
Borrower aware that any Governmental Authority is contemplating
delivering to the Borrower or any of its Subsidiaries any such notice.
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<PAGE>
(d) Hazardous Materials have not been generated, treated,
stored, disposed of, at, on or under any of the Properties, nor have
any Hazardous Materials been transferred from the Properties to any
other location.
(e) There are no governmental, administrative actions or
judicial proceedings pending or contemplated under any
Environmental Laws to which the Borrower or any of its Subsidiaries
is or will be named as a party with respect to the Properties, nor
are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Laws with
respect to any of the Properties.
SECTION 3.13. Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of
1940, as amended. The Borrower is not subject to regulation under any
Federal or State statute or regulation which limits its ability to incur
Indebtedness.
SECTION 3.14. Material Change. No material adverse change in the
business or operations of the Borrower has occurred since the financial
statements dated as of June 30, 1995 previously delivered to Bank.
SECTION 3.15. Governmental Approval. No registration with or consent
or approval of, or other action by, any Federal, state or other governmental
authority or regulatory body is required in connection with the execution,
delivery and performance of the Loan Documents or the borrowings hereunder.
SECTION 3.16. Full Disclosure. All written information heretofore
furnished by the Borrower to the Bank for purposes of or in connection with
this Agreement is, and all such information hereafter furnished by the
Borrower to the Bank will be, true and accurate in all material respects on
the date as of which such information is stated or certified. The Borrower
has disclosed to the Bank in writing any and all facts which, in the
reasonable judgment of the Borrower have or would be reasonably likely to
cause a Material Adverse Effect.
SECTION 3.17. Binding Effect. This Agreement and each other Loan
Document to which the Borrower or any of its Subsidiaries is a party
constitute the legal, valid and binding obligations of the Borrower and any of
its Subsidiaries to the extent it is a party thereto, enforceable against
such Person in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
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<PAGE>
SECTION 3.18. Trademarks and Licenses, etc. The Borrower and its
Subsidiaries own or are licensed or otherwise have the right to use, to the
best of their knowledge, all of the trademarks, service marks, trade names,
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person, to the extent that failure to have such rights would
reasonably be likely to cause a Material Adverse Effect. To the best knowledge
of the Borrower, no slogan or other advertising device or product, now
employed, or now contemplated to be employed by the Borrower or any of its
Subsidiaries infringes upon any rights held by any other Person; no claim or
litigation regarding any of the foregoing is pending or threatened, and no
statute, law, rule, regulation, standard or code is pending or, to the
knowledge of the Borrower, proposed regarding the foregoing, which, in either
case, would reasonably be expected to result in a Material Adverse Effect.
IV. CONDITIONS OF LENDING
The obligation of the Bank to lend hereunder is subject to the
following conditions precedent:
SECTION 4.01. Representations and Warranties; No Default. At the time
of each borrowing hereunder: (i) the representations and warranties set forth
in Article III hereof shall be true and correct in all material respects on and
as of such time with the same effect as though such representations and
warranties had been made on and as of such time; and (ii) the Borrowers
shall be in compliance with all the terms and provisions set forth herein on
their part to be observed or performed, and no Default or Event of Default
shall have occurred and be continuing at the time of each borrowing hereunder.
SECTION 4.02. Opinion of Counsel. On or prior to the Closing Date,
the Bank shall have received the legal opinion of the Borrowers' Vice President
- - General Counsel and Secretary, counsel to the Borrowers covering such
matters incident to the transactions contemplated by this Agreement as the
Bank may reasonably require.
SECTION 4.03. No Default Certificate; Deemed Representation. At the
time of the initial borrowing hereunder, each Borrower shall deliver to the
Bank a certificate in the form of Schedule III, dated such date and signed by
the Chief Financial Officer of such Borrower confirming compliance with
the conditions precedent set forth in Section 4.01 hereof. Each request for a
subsequent borrowing hereunder shall be deemed a representation and warranty
by such Borrower that the conditions precedent set forth in Section 4.01
hereof are true and correct with the same effect as though such
representations and warranties had been made on and as of the date of such
borrowing.
SECTION 4.04. Supporting Documents. On or prior to the Closing Date,
the Bank shall have received (a) a certificate of good standing for the
Borrowers from the Secretary of the State of Delaware or New York, as
appropriate, dated as of a recent date; (b) copies of the Certificates of
Incorporation and By-laws of the Borrower; (c) a certificate of the Secretary
or an Assistant Secretary of the Borrowers dated the Closing Date and
certifying (i) that neither the Certificates of Incorporation nor the By-laws
of the Borrowers have been amended since attaching a true and correct copy of
any such amendment; (ii) that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors of the Borrowers authorizing the
execution, delivery and performance of the Loan Documents; (iii) the
incumbency and specimen signature of each officer of the Borrowers executing
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the Loan Documents, and a certification by another officer of the Borrowers as
to the incumbency and signature of the Secretary or Assistant Secretary of the
Borrowers; (d) such other documents as the Bank may reasonably request.
SECTION 4.05. Other Information, Documentation. The Bank shall receive
such other and further information and documentation as it may reasonably
require, including, but not limited to, any information or documentation or a
letter from the Borrowers relating to their compliance with ERISA and with the
requirements of all federal, state and local laws, ordinances, rules,
regulations or policies governing the use, storage, treatment, transportation,
refinement, handling, production or disposal of Hazardous Materials.
V. AFFIRMATIVE COVENANTS
Each Borrower, for itself, covenants and agrees with the Bank that,
so long as this Agreement shall remain in effect or any of the principal of or
interest on the Notes or any fees remain unpaid, it will, and will cause each
of its Subsidiaries to:
SECTION 5.01. Corporate Existence, Properties, Insurance, etc. Except
as permitted in Section 5.02, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a corporation,
its rights and franchises and comply, in all material respects, with all
laws applicable to it; at all times maintain, preserve and protect all
franchises, trade names, licenses, patents, trademarks and copyrights and
preserve all material property used or useful in the conduct of their
business and keep the same in good repair, working order and condition,
reasonable wear and tear excluded, and from time to time make, or cause
to be made, all needful and proper repairs, renewals, replacements,
betterments and improvements thereto so that the business carried on in
connection therewith may be properly and advantageously conducted at all times
and at all times keep its insurable proportions adequately insured.
SECTION 5.02. Payment of Indebtedness, Taxes, etc. (a) Pay all
indebtedness and obligations as and when due and payable and (b) pay and
discharge or cause to be paid and discharged promptly all taxes, assessments and
governmental charges or levies imposed upon it or upon its income and profits,
or upon any of its property, real, personal or mixed, or upon any part thereof,
before the same shall become in default, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might become a lien or
charge upon such properties or any part thereof; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be required to pay and
discharge or cause to be paid and discharged any such tax, assessment, charge,
levy or claim so long as the validity thereof shall be contested in good faith
by appropriate proceedings, and the Borrower or such Subsidiary, as the case may
be, shall have set aside on its books adequate reserves with respect to any such
tax, assessment, charge, levy or claim so contested; and further provided that,
subject to the foregoing proviso, the Borrower and its Subsidiaries will pay or
cause to be paid all such taxes, assessments, charges, levies or claims upon the
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commencement of proceedings to foreclose any lien which has attached as security
therefor.
SECTION 5.03. Reporting Requirements. In the case of each Borrower,
furnish directly to the Bank:
(a) as soon as available and in any event within 120 days
after the end of each fiscal year of each Borrower, a consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as
of the end of such fiscal year and a consolidated income statement
and statements of cash flows and changes in stockholders' equity of
the Borrower and its consolidated Subsidiaries for such fiscal year,
all in reasonable detail and stating in comparative form the
respective consolidated figures for the corresponding date and
period in the prior fiscal year, and all prepared in accordance with
GAAP and as to the consolidated statements accompanied by an
opinion thereon acceptable to the Bank by Ernst & Young or other
independent accountants of national standing selected by the
Borrower;
(b) deliver together, with the information required in (a)
above, the same information presented on a consolidating basis
prepared by management of each Borrower;
(c) as soon as available and in any event within 45 days
after the end of each of the first three quarters of each fiscal
year of the Borrower, a consolidated and consolidating balance sheet
of the Borrower and its consolidated Subsidiaries as of the end of
such quarter and a consolidated and consolidating income statement
and statements of cash flows and changes in stockholders' equity, of
the Borrower and its consolidated Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the
end of such quarter, all in reasonable detail and stating in
comparative form the respective consolidated and consolidating
figures for the corresponding date and period in the previous fiscal
year and all prepared in accordance with GAAP and certified by the
chief financial officer of the Borrower (subject to year-end
adjustments);
(d) promptly upon receipt thereof, copies of any reports
submitted to the Borrower or any of its Subsidiaries by independent
certified public accountants in connection with examination of the
financial statements of the Borrower or any such Subsidiary made by
such accountants;
(e) simultaneously with the delivery of the financial
statements referred to above, a certificate of the chief financial
officer of the Borrower (i) certifying that to the best of his
knowledge no Default or Event of Default has occurred and is
continuing or, if a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof and the action which
is proposed to be taken with respect thereto, and (ii) with
computations demonstrating compliance with the covenants contained
in Sections VII, VIIA or VIIB, as applicable;
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(f) promptly after the commencement thereof, notice of each
action, suit, arid proceeding before any court or governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting the Borrower or any of its
Subsidiaries which, (i) involves a claim in which it appears that the
potential liability exceeds 1/2% of the Consolidated Tangible Net
Worth plus Subordinated Debt approved by the Bank in writing; (ii)
if determined adversely to the Borrower or such Subsidiary, could
have a material adverse effect on the financial condition,
properties, or operations of the Borrower or such Subsidiary; or
(iii) questions the validity of any of the Loan Documents;
(g) as soon as possible after the occurrence of each Default
or Event of Default, a written notice setting forth the details of
such Default or Event of Default and the action which is proposed to
be taken by the Borrower with respect thereto;
(h) at all times indicated in (a) above, a copy of the
management letter prepared by the independent auditors;
(i) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
the Borrower and any of its Subsidiaries as the Bank may reasonably
request.
SECTION 5.04. Access to Premises and Records. Maintain financial
records in accordance with Generally Accepted Accounting Principles and permit
representatives of the Bank to have access to such financial records and the
premises of the Borrower and any of its Subsidiaries upon request, and to make
such excerpts from such records or to conduct such audits and field
examinations as such representatives deem reasonably necessary.
SECTION 5.05. Notice of Adverse Change. Promptly, but not later than
fifteen (15) Business Days after any change or information shall have come to
the attention of any Executive Officer of the Borrower, notify the Bank in
writing of (a) any change in the business or the operations which, in the good
faith judgment of such officer, would be reasonably likely to have a Material
Adverse Effect, and (b) any information which indicates that any financial
statements which are the subject of any representation contained in this
Agreement, or which are furnished to the Bank pursuant to this Agreement,
fail, to any material extent, to present fairly the financial condition and
results of operations purported to be presented therein, disclosing the nature
thereof.
SECTION 5.06. Notice of Default. Promptly, in the event any Executive
Officer of the Borrower knows of any Default or Event of Default, or knows of
an event of default under any other agreement, furnish to the Bank a written
statement as to such occurrence, specifying the nature and extent thereof and
the action (if any) which is proposed to be taken with respect thereto.
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<PAGE>
SECTION 5.07. ERISA. (a) Comply, in all material respects with the
provisions of ERISA applicable to any Plan maintained by the Borrower and
the Subsidiaries; (b) As soon as possible and, in any event, within 10 days
after the Borrower or any Subsidiary knows any of the following, deliver to
the Bank a certificate of the Chief Financial Officer setting forth details as
to such occurrence and such action, if any, which the Borrower, any
Subsidiary or ERISA Affiliate is required or proposes to take, together with
any notices required or proposed to be given to or filed with or by the
Borrower, the Subsidiary, ERISA Affiliate, the PBGC, a Plan participant or the
Plan Administrator with respect thereto: that a Reportable Event has occurred
or is expected to occur, that an accumulated funding deficiency has been
incurred or an application may be or has been made to the Secretary of the
Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan, that
a Plan has been or may be terminated, reorganized, partitioned or declared
insolvent under Title IV of ERISA, that a Plan has an Unfunded Current
Liability giving rise to a lien under ERISA, that proceedings may be or have
been instituted to terminate a Plan, that a proceeding has been instituted
pursuant to Section 515 of ERISA to collect a delinquent contibution to a
Plan, or that the Borrower, any Subsidiary or any ERISA Affiliate will or may
incur any liability (including any contingent or secondary liability) to or on
account of the termination of or withdrawal from a Plan under Section 4062,
4063, 4064, 4201 or 4204 of ERISA. In addition to any certificates or notices
delivered to the Bank pursuant to the second sentence hereof, copies of annual
reports and any other notices received by the Borrower or Subsidiary required
to be delivered to the Bank hereunder shall be delivered to the Bank no later
than 30 days after the later of the date such report or notice has been filed
with the Internal Revenue Service or the PBGC. given to Plan participants or
received by the Borrower or the Subsidiary.
SECTION 5.08. Compliance with Contractual Obligations and Require-
ments of Law; Applicable Laws. Comply, in all material respects, with all
Contractual Obligations and requirements of law, the breach of which would be
reasonably likely to have a Material Adverse Effect.
SECTION 5.09. Subsidiaries. Give the Bank prompt written notice of
the creation, establishment or acquisition, in any manner, of any Subsidiary
or Affiliate not existing on the date hereof.
SECTION 5.10. Environmental Laws.
(a) Comply with, and insure compliance by all tenants and subtenants,
if any, with, all Environmental Laws and obtain and comply with and maintain
and insure that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, registrations or permits required
by Environmental Laws except to the extent that failure to do so could not be
reasonably expected to have a Material Adverse Effect;
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<PAGE>
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives
of all Governmental Authorities respecting Environmental Laws except to the
extent that the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings could not be reasonably
expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Bank and its respective
employees, agents officers and directors, from and against any claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the violation of or non-compliance
with any Environmental Laws applicable to the real property owned or operated
by the Borrower or any of its Subsidiaries, or any orders requirements or
demands of Governmental Authorities related thereto, including, without
limitation, attorney's and consultant's fees, investigation and laboratory
fees, court costs and litigation expenses, except to the extent that any of
the foregoing arise out of the gross negligence or willful misconduct of the
party seeking indemnification therefor.
SECTION 5.11. Support Services Agreement. Raymond shall maintain the
Support Services Agreement dated September 1, 1993, among it and its Canadian
Subsidiaries, R.H.E., Ltd. and Raymond Industrial Equipment, Ltd., in
effect, comply with its obligations thereunder, and enforce the obligations
of its Subsidiaries thereunder, all without waiver, amendment or assignment by
any of the parties, except with the prior written consent of the Bank.
SECTION 5.12. Voting of Subsidiaries' Shares. The Borrowers will each
vote the shares of any Subsidiary, and cause any Subsidiary share to be voted,
in a manner which will not violate any of the covenants or restrictions of
this Agreement or any other of the Loan Documents.
VI. NEGATIVE COVENANTS
Each Borrower for itself covenants and agrees with the Bank that, so
long as this Agreement shall remain in effect or any of the principal of or
interest on the Notes or any fees remain unpaid, it will not, nor will it
permit any Subsidiary to, directly or indirectly:
SECTION 6.01. Liens. Incur, create, assume or suffer to exist any
mortgage, pledge, lien, charge or other encumbrance or restriction of any
nature whatsoever (including conditional sales, other title retention
agreements or liens on inventory or accounts receivables) on any of their
assets now or hereafter owned, other than:
(a) liens existing on the date hereof as set forth on
Schedule IV attached hereto which liens are not to be renewed,
extended or refinanced;
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(b) deposits under workmen's compensation, unemployment
insurance and social security laws, or to secure the performance of
bids, tenders, contracts (other than for the repayment of borrowed
money) or leases or to secure statutory obligations or surety, appeal
bonds or discharge of lien bonds, or to secure indemity,
performance or other similar bonds in the ordinary course of
business;
(c) statutory liens of landlords and other liens imposed by
law, such as carriers', warehousemen's or mechanic's liens, incurred
in good faith in the ordinary course of business and deposits made or
bonds filed in the ordinary course of business to obtain the release
of such liens;
(d) liens for taxes not yet due, or liens for taxes
contested as permitted by Section 5.02;
(e) any other liens granted to the Bank, and
(d) debt secured by purchase money mortgages, or other
encumbrances on after acquired property, provided that the principal
amount of all such secured debt does not exceed 10% of the Borrower's
tangible net worth plus Subordinated Debt approved by the Bank in
writing.
SECTION 6.02. Guarantees, Etc. Assume, guarantee, endorse or
otherwise be or become directly or contingently responsible or
liable (including, but not limited to, an agreement to purchase any
obligation, stock, assets, goods or services or to supply or advance
any funds, assets, goods or services, or any agreement to maintain
or cause such Person to maintain a minimum working capital or net
worth or otherwise to assure the creditors of any Person against
loss) for the obligations of any Person ("Guarantee"), or permit any
of its Subsidiaries to do so, (i) except Guarantees by endorsement of
negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business, and (ii) except
Guarantees of obligations aggregating not more than 10% of the
amount of its tangible net worth (excluding, however, from such
calculation Raymond's guarantee of Raymond Leasing's 8.86% Senior
Notes due November 27, 1997) from time to time, which Guarantee
obligations shall be included in current liabilities, total
liabilities or Funded Debt, as appropriate, depending on the terms of
the guaranteed obligations.
SECTION 6.03. Sale of Notes. Sell, transfer, discount or
otherwise dispose of notes, accounts receivable or other rights to
receive payment with or without recourse, except for the purpose of
collection in the ordinary course of business.
SECTION 6.04. Investments. Make investments, lend or advance
money, purchase or hold beneficially any stock, other securities,
or evidences of indebtedness of, purchase or acquire all or a
substantial part of the assets of, make or permit to exist any
interest whatsoever in, any other Person, other than as set forth in
Section 6.12 hereof, except that the Borrower may invest in:
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(a) direct obligations of the United States of America or
obligations guaranteed by the United States of America, provided
that such obligations mature within one year from the date of
acquisition thereof; or
(b) time certificates of deposit issued by any commercial
bank organized and existing under the laws of the United States or
any state thereof and having aggregate capital and surplus in excess
of $500,000,000; or
(c) commercial paper rated not less than A-1 or P-1 or their
equivalent by Moody's Investor Services, Inc. or Standard & Poor's
Corporation, respectively; or
(d) money market mutual funds having assets in excess of two
billion dollars;
(e) advances to and/or investments in Subsidiaries that
guaranty all Loans on terms satisfactory to the Bank;
(f) Capital Lease Obligations under which Raymond Leasing is
the lessor, entered into by Raymond Leasing in the ordinary course of
its equipment leasing business; and
(g) advances or investments by Raymond in Unconsolidated
Investees made after December 31, 1994 aggregating up to 15% of
tangible net worth plus Subordinated Debt approved by the Bank in
writing, or
(h) advances and/or investments in any Person (other than
permitted above), whether by acquisition of stock, indebtedness, other
obligation or security, or by loan, advance, capital contribution, or
otherwise so long as (i) the sum of such acquisition, advance or
investment (valued immediately after such action) made after December
31, 1994 does not exceed 10% of the Borrowers tangible net worth plus
Subordinated Debt approved by the Bank in writing, (ii) a Default or an
Event of Default under this Agreement would not exist, and (iii) the
Borrower could incur at least $1.00 of additional Senior Indebtedness.
SECTION 6.05. Change in Business. Materially change or alter the
nature of its business from the business currently engaged in.
SECTION 6.06. Dividends. Declare or pay any cash dividend on its
capital stock or make any other distribution with respect to its capital stock
(other than distributions in accordance with Section 6.11 hereof or redeem,
retire, purchase or otherwise acquire, directly or indirectly, for value or
set apart any sum for the redemption, retirement, purchase or other
acquisition of, directly or indirectly, any share of its capital stock or
warrants or options therefor except that: (a) the Borrower may declare and
deliver dividends and make distributions payable solely in common stock of the
Borrower; (b) the Borrower may purchase or otherwise acquire shares of its
capital stock by exchange for or out of the proceeds received from a
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substantially concurrent issue of new shares of its capital stock; (c) either
Borrower may make or declare cash dividends with respect to the capital stock
of the Borrower unless immediately after giving effect thereto, the sum of
such cash dividends would exceed the sum of 50% of cumulative net income
(minus 100% of any net loss) subsequent to December 31, 1993, plus $2,000,000
for Raymond and $1,000.000 for Raymond Leasing. In addition, neither Borrower
will authorize or make any cash dividends if, after giving effect thereto, a
Default or Event of Default would exist or if the Borrower could not incur at
east $1.00 of additional Senior Indebtedness.
SECTION 6.07. Subordinated Debt. Make any optional prepayment of, or
purchase, redeem or otherwise acquire, or amend any provision in respect of
the subordination or the terms of payment of any Subordinated Debt except
such Subordinated Debt may be converted in part or in full to equity.
SECTION 6.08. Accounting Policies and Procedures. Permit any material
change in the accounting policies and procedures of the Borrower, other than
as required by Generally Accepted Accounting Principles, including a change
in the Borrower's fiscal year, without the prior consent of the Bank.
SECTION 6.09. Stock of Subsidiaries. Etc. (a) Sell or otherwise
dispose of any shares of capital stock of any of its Subsidiaries, or (b)
permit any such Subsidiary to issue any additional shares of its capital
stock, except as permitted by Section 6.06, and except for directors'
qualifying shares.
SECTION 6.10. Transactions with Affiliates. Enter into any
transaction, including, without limitation, the purchase, sale or exchange of
property or the rendering of any service, with any Affiliate or permit any of
its Subsidiaries to enter into any transaction, including, without limitation,
the purchase, sale or exchange of property or the rendering of any service,
with any Affiliate, except in the ordinary course of and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's business and
upon fair and reasonable terms no less favorable to the Borrower or such
Subsidiary than it would obtain in a comparable arm's length transaction with
a Person not an Affiliate.
SECTION 6.11. Merger or Consolidation or Sales of Assets. Neither
Borrower will and will not permit a Subsidiary to, become a party to any
merger or consolidation or sell, lease, assign or otherwise dispose of 10% or
more of its consolidated assets in any fiscal year or assets which have
accounted for 10% or more of Consolidated Adjusted Net Income in the fiscal
year (except that any Subsidiary may merge into or consolidate with either
Borrower or another Subsidiary so long as the Borrower would be the surviving
corporation) unless immediately thereafter (1) the Borrower would be the
surviving corporation or (2) the surviving corporation would be (i) organized
under the laws of the United States, (ii) would be engaged in the same line of
business as Borrower, (iii) the surviving corporation expressly assumes, in
writing, the due and punctual payment of the principal and interest and
premium, if any, on the Loans and the due and punctual performance and
observance of all covenants and, (iv) in the case of Leasing, Raymond
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expressly acknowledges such merger or consolidation and the continuing
validity of the Operating Agreement; provided, however, that in any case, no
Event of Default would exist under the covenants contained in this Agreement
and the Borrower would be able to issue at least $1.00 of additional Senior
Indebtedness.
SECTION 6.12. Restrictions on Leases of Equipment. Raymond Leasing
shall not, and shall not permit any Subsidiary to, at any time permit the
aggregate original cost of all equipment at any time subject to a lease and
manufactured or sold by a Person other than Raymond to exceed 15% of the
aggregate original cost of all equipment at such time subject to a lease
provided, however, that for purposes of this Section, batteries and chargers
shall be deemed to be equipment manufactured by Raymond.
SECTION 6.13. The Raymond Corporation Subsidiaries. Raymond shall
not enter into any agreement or other arrangement, or take or permit its
Subsidiaries to take any action, which would limit is ability to receive
loans or dividends from any of its Subsidiaries other than Raymond Leasing, or
would limit the ability of such Subsidiaries to make such loans or pay such
dividends.
VII. FINANCIAL COVENANTS -- THE RAYMOND CORPORATION
So long as any of the Notes shall remain unpaid or the Bank shall
have any Commitment under this Agreement, Raymond agrees that it shall, at all
times, with respect to (i) itself, (ii) its existing consolidated Subsidiaries
other than Raymond Leasing and (iii) any Subsidiaries that become
consolidated Subsidiaries after the date of this Agreement:
SECTION 7.01. Minimum Working Capital. Maintain Raymond Working
Capital of not less than $45,000,000.
SECTION 7.02. Minimum Tangible Net Worth. Maintain a tangible net
worth of not less than $42,000,000 plus 50% of its net income earned
subsequent to December 31, 1993.
SECTION 7.03. Leverage Ratio. Maintain a ratio of total
unsubordinated liabilities to tangible net worth of not greater than 1.25 to
1.00.
SECTION 7.04. Interest Coverage. Maintain as of the end of each
calendar quarter a ratio of EBITDA for the four calendar quarter period then
ended, to Interest Charges for such period of not less than 2.25 to 1.0.
SECTION 7.05. Loss Quarters. Not have a net loss in two (2)
consecutive calendar quarters or in any fiscal year.
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VII-A. FINANCIAL COVENANTS - RAYMOND LEASING
So long as any of the Notes shall remain unpaid or the Bank shall
have any Commitment under this Agreement, Raymond Leasing agrees that it
shall, at all times:
SECTION 7A.01. Minimum Tangible Net Worth. Maintain a tangible net
worth of not less than $20,000,000, plus 50% of its net income earned
subsequent to December 31, 1993,
SECTION 7A.02. Leverage Ratio. Maintain a ratio of Senior Indebtedness
to tangible net worth of not greater than 3.0 to 1.0.
SECTION 7A.03. Interest Coverage. Maintain as of the end of each
calendar quarter a ratio of EBITDA for the four calendar quarter period then
ended, to Interest Charges for such period of not less than 1.3 to 1.00.
SECTION 7A.04. Loss Quarter. Not incur a net loss in two (2)
consecutive calendar quarters or in any fiscal year.
SECTION 7A.05. Working Capital. Maintain a Working Capital of not less
than $0.
VII-B. FINANCIAL COVENANTS - CONSOLIDATED
So long as any of the Notes shall remain unpaid or the Bank shall
have any Commitment under this Agreement, the Borrowers agree that they
shall, at all times, with respect to (i) themselves, (ii) their existing
consolidated Subsidiaries, and (iii) any Subsidiaries that become
consolidated Subsidiaries after the date of this Agreement:
SECTION 7B.01. Minimun Tangible Net Worth. Maintain at all times a
Consolidated Tangible Net Worth of not less than $65,000,000, plus 50% of their
consolidated net income earned subsequent to December 31, 1993.
SECTION 7B.02. Leverage Ratio. Maintain at all times a ratio of
Consolidated Total Unsubordinated Liabilities to Consolidated Tangible Net
Worth of not greater than 1.50 to 1,00.
SECTION 7B.03. Interest Coverage. Maintain as of the end of each
calendar quarter a ratio of consolidated EBITDA for the four calendar quarter
period then ended, to Consolidated Interest Charges for such period of not less
than 2.00 to 1.00.
SECTION 7B.04. Consolidated Losses. Not incur consolidated net losses
in two consecutive calendar quarters or in any fiscal year.
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VIII. EVENTS OF DEFAULT
SECTION 8.01. Events of Default. In the case of the happening of any
of the following events ("Events of Default"):
(a) default shall occur (i) in the payment of the principal
or interest on any of the Notes or Loans when due or (ii) in the
payment of any fees or other amounts due hereunder within five (5)
days after such fees or other amounts become due in accordance
herewith;
(b) any representation or warranty herein or in any of the
Loan Documents, in any certificate or report furnished in
connection herewith or in any amendment to this Agreement, shall
prove to be false or misleading in any material respect when made or
given or deemed made or given;
(c) default shall be made in respect of any agreement or
obligation relating to any obligation of either Borrower or its
Subsidiaries for borrowed money (other than the Notes), if the
effect of such default or the result of any action by the obligee is
to accelerate the maturity of such obligation or to permit the holder
or obligee thereof (or a trustee on behalf of such holder or obligee)
to cause such obligation to become due prior to the stated maturity
thereof or which, with the passage of time, the giving of notice or
both would constitute an event of default under any agreement, or
any such obligation shall not be paid when due after giving effect to
any applicable grace period;
(d) default shall be made in the due observance or
performance of any covenant, condition or agreement to be performed
pursuant to Article VI of this Agreement;
(e) default shall be made in the due observance or
performance of any covenant, condition or agreement to be performed
pursuant to this Agreement other than as described in (d) above which
shall continue unremedied for more than ten (10) days;
(f) (i) default shall be made in the due observance or
performance of any covenant, condition or agreement of either
Borrower to be performed pursuant to the Loan Documents (other than
this Agreement) and not cured within any applicable grace period or
(ii) any of the Loan Documents (other than this Agreement), shall
cease to be in full force and effect or shall be declared to be null
and void, or the validity or enforceability thereof shall be
contested or any party thereto shall deny that it has any further
liability to the Bank with respect thereto;
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(g) either Borrower or any of its Subsidiaries shall (i)
voluntarily commence any case, proceeding or other action or file
any petition seeking relief under Title 11 of the United States
Code or any other existing or future Federal domestic or foreign
bankruptcy, insolvency or similar law, (ii) consent to the
institution of, or fail to controvert in a timely and appropriate
manner, any such proceeding or the filing of any such petition,
(iii) apply for or consent to the employment of a receiver, trustee,
custodian, sequestrator or similar official for the Borrower or any
of its Subsidiaries or for a substantial part of its property, (iv)
file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as
they become due or (vii) take corporate action for the purpose of
effecting any of the foregoing;
(h) an involuntary case, proceeding or other action shall be
commenced or an involuntary petition shall be filed in a court of
competent jurisdiction seeking (i) relief in respect of either
Borrower or any of its Subsidiaries or of a substantial part of
its property, under Title 11 of the United States Code or any other
existing or future Federal, domestic or foreign bankruptcy,
insolvency or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator or similar official for either
Borrower or any Subsidiary or for a substantial part of its property,
or (iii) the winding-up or liquidation of either Borrower or any
Subsidiary; and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering
any of the foregoing shall continue unstayed and in effect for 60
days;
(i) there shall be commenced against either Borrower or any
of its Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets
which results in the entry of an order for any such relief which
shall not have been vacated, discharged or stayed or bonded pending
appeal within sixty (60) days from the entry thereof;
(j) one or more judgments or decrees shall be entered
against either Borrower or any of its Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance) of
$500,000 or more and all such judgments or decrees shall not have
been vacated, discharged, stayed or bonded pending appeal within 60
days from the entry thereof and have not been reserved for on the
Borrower's financial statements and which are not actually being
contested in good faith in appropriate proceeding;
(k) (i) any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan, or any lien shall arise
on the assets of a Borrower or any Commonly Controlled Entity in favor
of the PBGC or a Plan (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed,
or a trustee shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion
of the Bank, likely to result in the termination of such Plan for
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purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) a Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Bank is likely to, incur any liability in connection with a withdrawal
from, or the insolvency or reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist, with respect
to a Plan; and in each case in clauses (i) through (vi) above, such
event or condition, together with all other such events or conditions,
if any, could subject a Borrower or any of its Subsidiaries to any
tax, penalty or other liabilities in the aggregate material in
relation to the business, operation, property or financial or other
condition of the Borrower and its Subsidiaries taken as a whole;
(l) Raymond shall at any time and for any reason cease to own
beneficially 100% of the outstanding capital stock of Raymond
Leasing;
then, at any time thereafter during the continuance of any such event, the
Bank may, by written notice to the Borrowers (i) terminate the Commitment and
its obligations to make Revolving Credit Loans and Term Loan(s) and, (ii)
declare the Notes to be forthwith due and payable, both as to principal and
interest, without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived, anything contained herein or in the
Notes to the contrary notwithstanding, provided, however, that if an event
specified in Section 8.01(g) or (h) hereof shall have occurred, the
Commitment, and the Bank's obligations to make Revolving Credit Loans and Term
Loan(s) shall automatically terminate and the Notes shall immediately become
due and payable, and the Bank in each instance shall have the right to
exercise its rights under the Loan Documents as permitted by law.
IX. MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications
provided for hereunder shall be in writing and shall be deemed to have been
duly given or made when delivered by hand or facsimile at the address set
forth below, or if sent by certified mail, three days after the day on which
mailed, or, in the case of telex, when answer back is received, or, in the
case of an overnight courier service, one business day after delivery to such
courier service, addressed as set forth below, or to such other address as may
be hereafter notified by the respective parties hereto:
(a) if to the Bank, at
Marine Midland Bank
One Marine Midland Plaza
Binghamton, New York 13902
Attn: Ronald W. Lesch, V.P.
Fax #: (607) 772-5611
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(b) if to the Borrowers, at
Mr. William B. Lynn, Executive Vice President
The Raymond Corporation
Mr. Patrick J. McManus, President
Raymond Leasing Corporation
Corporate Headquarters
Greene, NY 13778
Fax #: 607-656-9942
c) as to each such party at such other address as such party shall
have designated to the other in a written notice complying as to delivery with
the provisions of this Section 9.01.
SECTION 9.02. Survival of Agreement: Successors and Assigns. (a) All
covenants, agreements. representations and warranties made herein and in the
certificates delivered pursuant hereto shall survive the making by the Bank
of the Loans herein contemplated and the execution and delivery to the Bank of
the Notes evidencing such Loans and shall continue in full force and effect so
long as the Notes are outstanding and unpaid or the Commitment is outstanding.
(b) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include (i) the successors and assigns
of such party; (ii) all covenants, promises and agreements by or on behalf of
the Borrower which are contained in this Agreement shall bind and inure to the
benefit of the respective successors and assigns of the Bank and (iii) no
other Person shall be a direct or indirect legal beneficiary of, or have any
direct or indirect cause of action or claim in connection with this Agreement
or any of the other Loan Documents. The Bank shall not have any obligation to
any Person not a party to this Agreement or other Loan Documents.
SECTION 9.03. Expenses of the Bank: Indemnification.
(a) The Borrowers will pay all reasonable out-of-pocket costs and
expenses incurred by the Bank in connection with the preparation, development
and execution of the Loan Documents and any amendment, supplement or
modification to this Agreement, the Notes and the other Loan Documents
including, without limitation, the fees and disbursements of counsel to the Bank
(including, without limitation, allocation of the cost of in-house counsel to
the Bank whether or not the transactions hereby contemplated shall be
consummated), the making of the Loans hereunder, the costs and expenses incurred
in connection with the enforcement or preservation of any rights of the Bank
under this Agreement, the Notes and the other Loan Documents or in connection
with the Loans, including, without limitation, fees and disbursements of counsel
to the Bank (including, without limitation, allocation of the cost of in-house
counsel to the Bank).
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(b) The Borrowers agree to indemnity the Bank and its respective
directors, officers, employees and agents against, and to hold the Bank and
each such person harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees and
expenses, incurred by or asserted against the Bank or any such person arising
out of, in any way connected with, or as a result of (i) the use of any of
the proceeds of the Loans, (ii) this Agreement or other Loan Documents,
(iii) the performance by the parties hereto and thereto of their respective
obligations hereunder and thereunder (including but not limited to the making
of the Commitment) and consummation of the transactions contemplated hereby
and thereby, (iv) breach of any representation or warranty or (v) any claim,
litigation, investigation or proceedings relating to any of the foregoing,
whether or not the Bank or any such person is a party thereto; provided,
however, that such indemnity shall not, as to the Bank, apply to any such
losses, claims, damages, liabilities or related expenses to the extent that
they result from the gross negligence of willful misconduct of the Bank.
(c) The Borrowers agree to indemnify, defend and hold harmless the
Bank and its respective officers, directors, shareholders, agents and
employees (collectively, the "Indemnitees") from and against any loss, cost,
damage, liability, lien, deficiency, fine, penalty or expense (including,
without limitation, reasonable attorney's fees and reasonable expenses for
investigation, removal, cleanup and remedial costs and modification costs
incurred to permit, continue or resume normal operations of any property or
assets or business of the firm) arising from a violation of, or failure to
comply with any Environmental Laws and to remove any lien arising therefrom
except to the extent caused by the gross negligence or willful misconduct of
any Indemnitee, which any of the Indemnitees may incur or which may be
claimed or recorded against any of the indemnitees by any Person.
(d) The provisions of this Section 9.03 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term
or provision of this Agreement or any of the Loan Documents, or any
investigation made by or on behalf of the Bank. All amounts due under this
Section 9.03 shall be payable on written demand therefor.
SECTION 9.04. Applicable Law. This Agreement, the Notes and the other
Loan Documents (other than those containing a contrary express choice of law)
shall be governed and construed by and interpreted in accordance with the laws
of the State of New York.
SECTION 9.05. Waiver of Rights by the Bank; Waiver of Jury Trial, etc.
(a) Neither any failure nor any delay on the part of the Bank in exercising
any right, power or privilege hereunder or under the Loan Documents shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise of any other right, power or privilege.
Except as prohibited by law, each party hereto hereby waives any right it may
have to claim or recover in any litigation referred to in this Section any
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special, exemplary punitive or consequential damages or any damages other
than, or in addition to, actual damages. Each party hereto (i) certifies
that neither any representative, agent or attorney of the Bank has
represented, expressly or otherwise, that the Bank would not, in the event
of litigation, seek to enforce the foregoing waivers and (ii) acknowledges
that it has been induced to enter into this Agreement or the Loan Documents,
as applicable, by, among other things, the mutual waivers and
certifications herein.
(b) THE BORROWERS AND THE BANK HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT
OF ANY ISSUE, CLAIM OR ACTION IN ANY WAY, INVOLVING OR ARISING, DIRECTLY OR
INDIRECTLY, OUT OF, RELATED TO, OR CONNECTED WTH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
SECTION 9.06. Acknowledgments. The Borrowers hereby acknowledge that:
(a) each has been advised by counsel in the negotiation, execution
and delivery of this Agreement, the Notes and the other Loan Documents;
(b) the Bank does not have any fiduciary relationship with either
Borrower and the relationship between the Bank, on one hand, and each
Borrower, on the other hand, is solely that of debtor and creditor; and
(c) no joint venture exists between either Borrower and the Bank.
SECTION 9.07. Consent to Jurisdiction. (a) The Borrowers hereby
irrevocably submit to the non-exclusive jurisdiction of any United States
federal or New York State court sitting in Rochester, in any action or
proceedings arising out of or relating to any Loan Documents and the
Borrowers hereby irrevocably agree that all claims in respect of such action
or proceeding may be heard and determined in any such court and irrevocably
waives any objection it may now or hereafter have as to the venue of any such
action or proceeding brought in such a court or the fact that such court is an
inconvenient forum.
(b) The Borrowers irrevocably and unconditionally consent to the
service or process in any such action or proceeding in any of the aforesaid
courts by the mailing of copies of such process to it by certified or
registered mail at its address specified in Subsection 9.01.
SECTION 9.08. Extension of Maturity. Except as otherwise expressly
provided herein, whenever a payment to be made hereunder shall fall due and
payable on any day other than a Business Day, such payment may be made on the
next succeeding Business Day, and such extension of time shall be included in
computing interest.
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SECTION 9.09. Modification of Agreement. No modification, amendment
or waiver of any provision of this Agreement or the Notes, nor consent to
any departure by the Borrowers or any of their Subsidiaries therefrom
shall in any event be effective unless the same shall be in writing and
signed by the Bank and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice to or
demand on the Borrowers or any of their Subsidiaries in any case shall
entitle the Borrowers or any of their Subsidiaries, as the case may be, to
any other or further notice or demand in the same, similar or other
circumstance.
SECTION 9.10. Participations and Assignments. (a) Neither Borrower may
assign or transfer any of its interests under this Agreement, the Notes or
the Loan Documents.
(b) The Bank reserves the right to grant participations in or to sell
and assign its rights, duties or obligations with respect to the Loans or
the Commitment to such banks, lending institutions or other parties as it may
choose, including, without limitation, any Federal Reserve Bank in accordance
with applicable law and without the consent of the Borrower, which consent
is deemed to be granted.
SECTION 9.11. Reinstatements; Certain Payments. If claim is ever made
upon the Bank for repayment or recovery of any amount or amounts received
by the Bank in payment or on account of any of the obligations under this
Agreement, the Bank shall give prompt notice of such claim to the Borrower,
and if the Bank repays all or part of said amount by reason of (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over the Bank or any of its property, or (ii) any settlement
or Compromise of any such claim effected by the Bank with any such
claimant, then and in such event such Borrower agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon such
Borrower notwithstanding the cancellation of the Notes or other instrument
evidencing the obligations under this Agreement or the termination of this
Agreement, and such Borrower shall be and remain liable to the Bank hereunder
for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by the Bank.
SECTION 9.12. Right of Setoff. In addition to any rights and
remedies of the Bank provided by law, the Bank is hereby authorized at any
time and from time to time, without prior notice to the Borrowers (any such
notice being expressly waived by the Borrowers) to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by the Bank to or for the credit or the account
of a Borrower against any and all of the obligations of the Borrower now and
hereafter existing under this Agreement and the Note held by the Bank,
irrespective of whether or not the Bank shall have made any demand under this
Agreement or the Note and although such obligations may be in any currency,
direct or indirect, absolute or contingent, matured or unmatured. The Bank
agrees to promptly notify the Borrowers after any such setoff and application
made by the Bank, but the failure to give such notice shall not affect the
validity of such setoff and application. The rights of the Bank under this
- 47 -
<PAGE>
Section are in addition to other rights and remedies (including, without
limitation, other rights of setoff) which the Bank may have.
SECTION 9.13. Severability. In case any one or more of the provisions
contained in this Agreement or in the Notes should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby.
SECTION 9.14. Counterparts. This Agreement 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 instrument.
SECTION 9.15. Entire Agreement; Cumulative Remedies.
(a) This Agreement and the other Loan Documents constitute the entire
agreement among the parties hereto and thereto as to the subject matter
hereof and thereof and supersede any previous agreement, oral or written, as
to such subject matter.
(b) The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 9.16. Headings. Section headings used herein are for
convenience of reference only and are not to affect the construction of or be
taken into consideration in interpreting this Agreement.
SECTION 9.17. Exhibits and Schedules. Exhibits A, A-1, B and C and
Schedules I through IV shall constitute an integral part of this Agreement.
- 48 -
<PAGE>
IN WITNESS WHEREOF, the Borrower and the Bank have caused this
Agreement to be duly executed by their duly authorized officers, all of the
day and year first above written.
RAYMOND LEASING CORPORATION
By:
---------------------------------
TITLE: President and General Manager
THE RAYMOND CORPORATION
By:
---------------------------------
TITLE: Executive Vice President
MARINE MIDLAND BANK
By:
---------------------------------
Vice President
- 49 -
<PAGE>
SCHEDULE I
Notice of Borrowing (or Conversions)
To: Marine Midland Bank Dated: _________________ , 1995
Reference is made to the Revolving Credit and Term Loan Agreement
dated September 1, 1995 (the "Agreement") between MARINE MIDLAND BANK (the
"Bank") and THE RAYMOND CORPORATION AND RAYMOND LEASING CORPORATION. Unless
otherwise defined herein, the terms defined in the Agreement are used herein
as so defined.
The undersigned, an authorized officer of _____________ (the
"Borrower") hereby requests that a Loan [be made to Borrower] [previously made
be converted to another Type of Loan] and certifies in accordance with the
provisions of Section 2.01 or 2.04 of the Agreement as follows:
1. The requested date for the funding [conversion] of such Loan is
__________.
The amount of the proposed Loan is $_______ and the outstanding
balances of all Loans after giving effect to the proposed Loan, will be as
follows, which sums are and will be owed to the Bank without any offsets or
defenses whatsoever:
A. Loans under Section 2.01 made by Bank:
Borrower Balance
The Raymond Corporation $_________
Raymond Leasing Corporation $_________
Total $_________
B. Loans made under Section 2.04 made by Bank:
Borrower Balance
-------- -------
The Raymond Corporation $_________
Raymond Leasing Corporation $_________
Total $_________
- 50 -
<PAGE>
2. The Borrower hereby elects in accordance with Section 2.03 or 2.06
of the Agreement that ____________ of the Loan being requested shall be a
_________ Rate Loan. [If a Term Loan - "The Term Loan shall have a term of
years."] [The Interest Period for the new Loan shall __________, be ending on
________________.
3. The amount requested should be credited to checking account number
_________ which is currently maintained with your Bank. (Not to be completed
in cases of conversion. Instead, conversions should read, "The amount
requested to be converted is $______ and the Loans to be converted
are__________.")
4. No Default or Event of Default has occurred or would result from
such Loan.
5. No Material Adverse Effect has occurred.
6. The representations and warranties contained in Article III of the
Agreement are true and correct on and as of the date of this Certificate, and
will be true and correct on and as of the date of the requested Loan, as
though made on and as of such dates. With respect to Section 3.03, all
additional borrowings and repayments under existing credit arrangements have
been adequately reflected in Borrower's financial statements. With respect to
Section 3.12, there have been no material developments which increase
Borrower's environmental exposure.
THE RAYMOND CORPORATION or
RAYMOND LEASING CORPORATION,
as appropriate
By:
------------------------------------ Title:
- 51 -
<PAGE>
SCHEDULE II
List of Subsidiaries of Raymond
Name of Subsidiary State of Incorporation of Shares Owned
List of Affiliates of Raymond
Name of Subsidiary State of Incorporation of Shares Owned
List of Subsidiaries of Raymond Leasing
Name of Subsidiary State of Incorporation of Shares Owned
List of Affiliates of Raymond Leasing
Name of Subsidiary State of Incorporation of Shares Owned
- 52 -
<PAGE>
SCHEDULE III
No Default Certificate
To: Marine Midland Bank
Re: Revolving Credit and Term Loan Agreement with The Raymond Corporation and
Raymond Leasing Corporation.
Pursuant to the provisions of the Revolving Credit and Term Loan
Agreement dated September 1, 1995 between Marine Midland Bank and The Raymond
Corporation and Raymond Leasing Corporation, the undersigned, hereby
certifies as the Chief Financial Officer of The Raymond Corporation and
Raymond Leasing Corporation as follows:
1. No Event of Default specified in Section 8 of the Revolving Credit
and Term Loan Agreement referred to above (the "Agreement") and no event
which, pursuant to the provisions of Section 8 of the Agreement would, with a
lapse of time and/or notice specified therein, become such an Event of Default,
has occurred or is continuing;
2. No Material Adverse Effect has occurred with respect to either The
Raymond Corporation or Raymond Leasing Corporation; and
3. The representations and warranties contained in Section 3 of the
Agreement continue to be true and correct.
THE RAYMOND CORPORATION or
RAYMOND LEASING CORPORATION,
as appropriate
By:
----------------------------------
Title:
- 53 -
<PAGE>
SCHEDULE IV
List of Liens of Raymond
NONE
List of Liens of Raymond Leasing
NONE
- 54 -
<PAGE>
EXHIBIT A
RAYMOND REVOLVING CREDIT NOTE
$10,000,000 Binghamton, New York
September 1, 1995
FOR VALUE RECEIVED, the undersigned, THE RAYMOND CORPORATION, a
New York corporation (the "Borrower"), DOES HEREBY PROMISE to pay to the
order of MARINE MIDLAND BANK (the "Bank"), at the office of the Bank at One
Marine Midland Plaza, Binghamton, New York 13902 on the Termination Date as
defined in the Revolving Credit and Term Loan Agreement (the "Agreement")
dated as of September 1, 1995 among the Borrower, Raymond Leasing
Corporation and the Bank, in lawful money of the United States of America, in
immediately available funds, the principal amount of Ten Million Do11ars
($10,000,000) or, if less than such principal amount, the aggregate unpaid
principal amount of all Revolving Credit Loans (as defined in Section 2.01
of the Agreement) made by the Bank to the Borrower pursuant to the
Agreement as shown on grid schedules annexed hereto, and to pay interest
from the date hereof on the unpaid principal amount hereof, in like money,
at said office, on the dates and at the rates selected in accordance with
Article II of the Agreement and, upon default, on demand from time to time,
on any overdue principal and on any overdue charge or fee, and, to the extent
permitted by law, on any overdue interest, for each day from the due date
thereof (by acceleration or otherwise) until such sum is paid in full, at the
rate in effect from time to time as described in the Agreement.
The obligations of the Borrower in regard to payment of the Loans
under the Agreement are several not joint with the Raymond Leasing
Corporation, it being expressly agreed and understood that Borrower shall be
liable to the Bank for only the Loans and interest accruing thereon made to
Borrower. Notwithstanding the foregoing, Borrower and Raymond Leasing shall be
jointly and severally liable for any commitment or facility fees, increased
costs, indemnities and expenses under the Agreement and for the performance of
the terms and conditions of the Agreement. Loans incurred by Raymond Leasing
under the Agreement shall reduce amounts available under the Agreement and
this Note for borrowings by Borrower.
This Revolving Credit Note is a Revolving Credit Note referred to in
Section 2.02 of the Agreement, and is subject to prepayment and acceleration
of maturity as set forth in the Agreement. All terms defined in the Agreement
are used herein with their defined meanings unless otherwise provided.
All Revolving Credit Loans made by the Bank to the Borrower under the
Agreement and the applicable rates and Interest Periods (as defined in the
Agreement) together with all payments or prepayments of principal shall be
recorded by the Bank and endorsed on the grid schedule or grid schedules
attached hereto and hereby made a part of this Revolving Credit Note.
- 55 -
<PAGE>
This Note shall be governed by and construed in accordance with the
laws of the State of New York and any applicable laws of the United States of
America.
THE RAYMOND CORPORATION
By:
--------------------------------
Title:
- 56 -
<PAGE>
EXHIBIT A-1
Raymond Leasing Revolving Credit Note
$10,000,000 Binghamton, New York
September 1, 1995
FOR VALUE RECEIVED, the undersigned, RAYMOND LEASING CORPORATION, a
Delaware corporation (the "Borrower"), DOES HEREBY PROMISE to pay to the order
of MARINE MIDLAND BANK (the "Bank"), at the office of the Bank at One Marine
Midland Plaza, Binghamton, New York 13902 on the Termination Date as defined
in the Revolving Credit and Term Loan Agreement (the "Agreement") dated as
of September 1, 1995 among the Borrower, The Raymond Corporation and the Bank,
in lawful money of the United States of America, in immediately available
funds, the principal amount of Ten Million Dollars ($10,000,000) or, if less
than such principal amount, the aggregate unpaid principal amount of all
Revolving Credit Loans (as defined in Section 2.01 of the Agreement) made
by the Bank to the Borrower pursuant to the Agreement as shown on the grid
schedules annexed hereto, and to pay interest from the date hereof on the
unpaid principal amount hereof, in like money, at said office, on the dates
and at the rates selected in accordance with Article II of the Agreement and,
upon default, on demand from time to time, or any overdue principal and on
any overdue charge or fee, and, to the extent permitted by law, on any overdue
interest, for each day from the due date thereof (by acceleration or
otherwise) until such sum is paid in full, at the rate in effect from time to
time as described in the Agreement.
The obligations of the Borrower in regard to payment of the Loans
hereunder are several not joint with The Raymond Corporation, it being
expressly agreed and understood that Borrower shall be liable to the Bank for
only the Loans and interest accruing thereon made to Borrower. Notwithstanding
the foregoing, Borrower shall be jointly and severally liable for any
commitment or facility fees, increased costs, indemnities and expenses
under the Agreement and for the performance of the terms and conditions of
the Agreement. Loans incurred by The Raymond Corporation under the Agreement
shall reduce amounts available under the Agreement and this Note for
borrowings by Borrower.
This Revolving Credit Note is a Revolving Credit Note referred to
in Section 2.02 of the Agreement, and is subject to prepayment and
acceleration of maturity as set forth in the Agreement. All terms defined in
the Agreement are used herein with their defined meanings unless otherwise
provided.
All Revolving Credit Loans made by the Bank to the Borrower under the
Agreement and the applicable rates and Interest Periods (as defined in the
Agreement) together with all payments or prepayments of principal shall be
recorded by the Bank and endorsed on the grid schedule or grid schedules
attached hereto and hereby made a part of this Revolving Credit Note.
- 57 -
<PAGE>
This Note shall be governed by and construed in accordance with the
laws of the State of New York and any applicable laws of the United States of
America.
RAYMOND LEASING CORPORATION
By:
----------------------------
Title:
- 58 -
<PAGE>
EXHIBIT B
Term Note
$________________ Binghamton, New York
September 1, 1995
FOR VALUE RECEIVED, the undersigned, _______________ a
_______________, corporation (the "Borrower"), DOES HEREBY PROMISE to pay to
the order of MARINE MIDLAND BANK (the "Bank"), at the office of the Bank at
One Marine Midland Plaza, Binghamton, New York 13902 in lawful money of the
United States of America. in immediately available funds, the principal amount
of_________________ ($_____) in equal consecutive quarterly calendar
installments payable on the last day of each calendar quarter commencing on
and on __________ the dates described in the Revolving Credit and Term Loan
Agreement ("Agreement") dated as of September 1, 1995 between the Borrower and
the Bank, and to pay interest from the date hereof on the unpaid principal
amount hereof, in like money, at said office, on the dates and at the rates
selected in accordance with Article II of the Agreement and, upon default, on
demand from time to time, on any overdue principal and on any overdue charge
or fee, and, to the extent permitted by law, on any overdue interest, for each
day from the due date thereof (by acceleration or otherwise) until such sum is
paid in full, at the rate in effect from time to time as described in the
Agreement.
This Term Note is a Term Note referred to in Section 2.05 of the
Agreement, and is subject to prepayment and acceleration of maturity as set
forth in the Agreement. All terms defined in the Agreement are used herein
with their defined meanings unless otherwise provided.
The Term Loan made by the Bank to the Borrower under the Agreement
and the applicable rates and Interest Periods (as defined in the Agreement)
together with all payments or prepayments of principal shall be recorded by
the Bank and endorsed on the grid schedule or grid schedules attached hereto
and hereby made a part of this Term Note.
This Note shall be governed by and construed in accordance with the
laws of the State of New York and any applicable laws of the United States of
America.
[BORROWER]
By:
----------------------------------
Title:
- 59 -
<PAGE>
GRID SCHEDULE
DATE TYPE INTEREST AMOUNT MATURITY
<PAGE>
EXHIBIT 10.9
$10,000,000
REVOLVING CREDIT AND TERM LOAN AGREEMENT
Dated as of September 22, 1995
among
THE RAYMOND CORPORATION
AND
RAYMOND LEASING CORPORATION
AND
MANUFACTURERS AND TRADERS
TRUST COMPANY
<PAGE>
TABLE OF CONTENTS
Page
I. DEFINITIONS........................................................... 1
SECTION 1.01. Definitions........................................ 1
SECTION 1.02. Accounting Terms/Other Definitional Provisions..... 9
II. LOANS................................................................. 10
SECTION 2.01. Revolving Credit Loans............................. 10
SECTION 2.02. Revolving Credit Notes............................. 11
SECTION 2.03. Interest on Revolving Credit Loans................. 11
SECTION 2.04. Term Loans......................................... 11
SECTION 2.05. Term Notes, Grid Schedules......................... 12
SECTION 2.06. Interest on Term Loans............................. 12
SECTION 2.07. Interest on Absolute Rate Loans.................... 12
SECTION 2.08. Interest on Prime Rate Loans...................... 12
SECTION 2.09. Intentionally Deleted.............................. 12
SECTION 2.10. Interest on Eurodollar Rate Loans.................. 12
SECTION 2.11. Continuation and Conversion of Loans............... 13
SECTION 2.12. Prepayment of Loans................................ 14
SECTION 2.13. Reduction or Termination of the Commitment......... 15
SECTION 2.14. Fees............................................... 15
SECTION 2.15. Default Rate of Interest; Late Payment Penalty..... 15
SECTION 2.16. Application of Payments and Computations........... 15
SECTION 2.17. Funds, Manner of Payment........................... 15
SECTION 2.18. Capital Adequacy................................... 16
SECTION 2.19. Inability to Determine Rate........................ 16
SECTION 2.20. Other Events....................................... 16
SECTION 2.21. Change in Legality................................. 18
SECTION 2.22. Limitation on Interest............................. 18
III. REPRESENTATIONS AND WARRANTIES........................................ 19
SECTION 3.01. Organization, Corporate Powers, etc................ 19
SECTION 3.02. Corporate and Governmental Authorization;
No Contravention................................ 19
SECTION 3.03. Financial Condition................................ 19
SECTION 3.04. Taxes.............................................. 20
SECTION 3.05. Title to Properties................................ 20
SECTION 3.06. Litigation......................................... 20
SECTION 3.07. Agreements......................................... 21
SECTION 3.08. ERISA.............................................. 21
SECTION 3.09. Proceeds of the Loans.............................. 21
SECTION 3.10. Federal Reserve Regulations........................ 21
SECTION 3.11. Subsidiaries....................................... 22
SECTION 3.12. Environmental Matters.............................. 22
<PAGE>
SECTION 3.13. Not an Investment Company......................... 23
SECTION 3.14. Material Change................................... 23
SECTION 3.15. Governmental Approval............................. 23
SECTION 3.16. Full Disclosure................................... 23
SECTION 3.17. Binding, Effect................................... 23
SECTION 3.18. Trademarks and Licenses, etc...................... 23
IV. CONDITIONS OF LENDING................................................. 24
SECTION 4.01. Representations and Warranties; No Default........ 24
SECTION 4.02. Opinion of Counsel................................ 24
SECTION 4.03. No Default Certificate; Deemed Representation..... 24
SECTION 4.04. Supporting Documents.............................. 24
SECTION 4.05. Other Information, Documentation.................. 24
V. AFFIRMATIVE COVENANTS................................................. 25
SECTION 5.01. Corporate Existence, Properties, Insurance. etc... 25
SECTION 5.02. Payment of Indebtedness, Taxes, etc............... 25
SECTION 5.03. Reporting Requirements............................ 25
SECTION 5.04. Access to Premises and Records.................... 27
SECTION 5.05. Notice of Adverse Change.......................... 25
SECTION 5.06. Notice of Default................................. 27
SECTION 5.07. ERISA............................................. 27
SECTION 5.08. Compliance with Contractual Obligations and
Requirements of Law; Applicable Laws........... 28
SECTION 5.09. Subsidiaries...................................... 28
SECTION 5.10. Environmental Laws................................ 28
SECTION 5.11. Support Services Agreement........................ 29
SECTION 5.12. Voting of Subsidiaries' Shares.................... 29
VI. NEGATIVE COVENANTS.................................................... 29
SECTION 6.01. Liens............................................. 29
SECTION 6.02. Guarantees, Etc................................... 30
SECTION 6.03. Sale of Notes..................................... 30
SECTION 6.04. Investments....................................... 30
SECTION 6.05. Change in Business................................ 31
SECTION 6.06. Dividends......................................... 31
SECTION 6.07. Subordinated Debt................................. 31
SECTION 6.08. Accounting Policies and Procedures................ 32
SECTION 6.09. Stock of Subsidiaries, Etc........................ 32
SECTION 6.10. Transactions with Affiliates...................... 32
SECTION 6.11. Merger or Consolidation or Sales of Assets........ 32
SECTION 6.12. Restrictions on Leases of Equipment............... 32
SECTION 6.13. The Raymond Corporation Subsidiaries.............. 33
ii
<PAGE>
VII. FINANCIAL COVENANTS - THE RAYMOND CORPORATION......................... 33
SECTION 7.01. Minimum Working Capital........................... 33
SECTION 7.02. Minimum Tangible Net Worth........................ 33
SECTION 7.03. Leverage Ratio.................................... 33
SECTION 7.04. Interest Coverage................................. 33
SECTION 7.05. Net Loss.......................................... 33
VII-A.FINANCIAL COVENANTS - RAYMOND LEASING................................. 33
SECTION 7A.01. Minimum Tangible Net Worth........................ 33
SECTION 7A.02. Leverage Ratio.................................... 33
SECTION 7A.03. Interest Coverage................................. 34
SECTION 7A.04. Net Loss.......................................... 34
SECTION 7A.05. Working Capital................................... 34
VII-B.FINANCIAL COVENANTS - CONSOLIDATED.................................... 34
SECTION 7B.01. Minimum Tangible Net Worth........................ 34
SECTION 7B.02. Leverage Ratio.................................... 34
SECTION 7B.03. Interest Coverage................................. 34
SECTION 7B.04. Net Loss.......................................... 34
VIII. EVENTS OF DEFAULT..................................................... 34
SECTION 8.01. Events of Default................................. 34
IX. MISCELLANEOUS......................................................... 37
SECTION 9.01. Notices........................................... 37
SECTION 9.02. Survival of Agreement; Successors and Assigns..... 38
SECTION 9.03. Expenses of the Bank: Indemnification............. 38
SECTION 9.04. Applicable Law.................................... 39
SECTION 9.05. Waiver of Rights by the Bank;
Waiver of Jury Trial, etc......................... 39
SECTION 9.06. Acknowledgments................................... 40
SECTION 9.07. Consent to Jurisdiction........................... 40
SECTION 9.08. Extension of Maturity............................. 40
SECTION 9.09. Modification of Agreement......................... 40
SECTION 9.10. Participations and Assignments.................... 40
SECTION 9.11. Reinstatement; Certain Payments................... 41
SECTION 9.12. Right of Setoff................................... 41
SECTION 9.13. Severability...................................... 41
SECTION 9.14. Counterparts...................................... 41
SECTION 9.15. Entire Agreement: Cumulative Remedies............. 42
SECTION 9.16. Headings.......................................... 42
SECTION 9.17. Exhibits and Schedules............................ 42
iii
<PAGE>
REVOLVING CREDIT AND TERM LOAN AGREEMENT
REVOLVING CREDIT AND TERM LOAN AGREEMENT dated as of September 22, 1995
(the "Agreement") among THE RAYMOND CORPORATION, a New York corporation
("Raymond") and RAYMOND LEASING CORPORATION, a Delaware corporation ("Raymond
Leasing") (Raymond and Raymond Leasing individually the "Borrower" and
collectively the "Borrowers" as the case may be) and Manufacturers and Traders
Trust Company, a New York banking corporation (the "Bank").
WHEREAS, the Borrowers have requested the Bank to extend credit to them
severally on a revolving credit basis at any time and from time to time prior to
the Termination Date (as defined below) by making revolving credit loans to the
Borrowers not in excess of $10,000,000 in the aggregate at any time outstanding
and to have the option to from time to time up to and including the Termination
Date convert the principal amounts outstanding under the revolving credit loans
to three, four or five year term loans; and
WHEREAS, the proceeds of the revolving credit and term loan shall be used
by the Borrowers for general corporate working capital purposes and to fund
growth in Raymond Leasing's lease portfolio; and
WHEREAS, the Bank is willing to extend such credit to the Borrowers,
subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing the parties hereto agree
to the following:
1. DEFINITIONS
SECTION 1.01. Definitions. As used herein, the terms defined in the
preamble shall have the same meaning when used in this Agreement and the
following words and terms shall have the following meanings:
"Absolute Rate" shall mean, with respect to any Absolute Rate Loan for any
Interest Period, a fixed interest rate per annum equal to 1% above the yield on
constant maturity United States Treasury Obligations next maturing during or
after the month in which the final scheduled payment of principal or interest is
due and payable on such Loan, as such yield is published by the Wall Street
Journal one Business Day preceding the Borrowing Date for such Loan.
"Absolute Rate Loan" shall mean a Loan bearing interest in accordance with
Section 2.07 hereto.
"Adjusted Eurodollar Rate" shall mean, with respect to any Eurodollar Rate
Loan for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the product of (i) the Eurodollar
1
<PAGE>
Rate in effect for such Interest Period and (ii) Eurodollar Reserves. For the
purposes hereof, "Eurodollar Rate" shall mean, for any Interest Period, the
London Interbank Offered Rate for United States dollar deposits for a duration
equal to the applicable proposed Interest Period in the London Interbank
Eurodollar Market at approximately 11:00 a.m., London time (or as soon
thereafter as practicable) as determined by the Bank from any broker, quoting
service or commonly available source utilized by the Bank. For purposes hereof,
the term "Eurodollar Reserves" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the stated maximum rate of all reserves required to be maintained
against "Libor rate liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System (or any successor) (or against any other
category of liabilities which includes deposits by reference to which the
interest rate on Eurodollar Rate Loans or Loans is determined or any category of
extensions of credit or other assets which includes loans by a non-United States
office of a bank to United States residents) on such date to any member bank of
the Federal Reserve System. It is agreed that for purposes hereof any amount
bearing interest at the Eurodollar Rate shall be deemed to constitute a " Libor
rate liability" as defined in Regulation D and to be subject to the reserve
requirements of Regulation D, without benefit of credit or proration, exemptions
or offsets which might otherwise be available to the Bank from time to time
under Regulation D.
"Affiliate" shall mean any person which directly or indirectly controls, or
is controlled by, or is under common control with, a Borrower or any of its
Subsidiaries. The term "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by contract, or
otherwise.
"Borrowing Date" shall mean, with respect to any Loan, the date on which
such Loan is disbursed to the Borrower.
"Business Day" shall mean any day not a Saturday, Sunday or legal holiday,
on which the Bank is open for business in Buffalo, New York, provided, however,
that when used in connection with determining the Eurodollar Rate, the term
"Business Day" shall also exclude any day on which the Bank is not open for
dealings in dollar deposits in the London interbank market.
"Capitalized Lease Obligation" shall mean an obligation to pay rent or
other amounts under any lease of (or other arrangement conveying the right to
use) real and/or personal property which obligation is required to be classified
and accounted for as a capital lease on a balance sheet prepared in accordance
with generally accepted accounting principles, and for purposes hereof the
amount of such obligation shall be the capitalized amount thereof determined in
accordance with such principles.
"Chief Financial Officer" shall mean the Chief Financial Officer of either
Borrower, as applicable.
2
<PAGE>
"Closing Date" shall mean September 22, 1995.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" shall have the meaning assigned to such term in Section 2.01
hereof. The Commitment shall be deemed permanently terminated on the Termination
Date or such earlier date on which the Commitment shall have been terminated in
accordance herewith.
"Commonly Controlled Entity" shall mean an entity, whether or not
incorporated, which is under common control with a Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes a Borrower and
which is treated as a single employer under Section 414 of the Code.
"Consolidated Adjusted Net Income" for any period shall mean the
consolidated gross revenues of a Borrower for such period less all expenses and
other proper charges (including taxes on income) and extraordinary items of
income, but excluding in any event (to the extent not previously deducted as
extraordinary items of income):
(a) any gains or losses on the sale or other disposition of
investments or fixed or capital assets, and any taxes on such excluding
gains and any tax deductions or credits on accounts of any such excluded
losses;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any corporation, substantially all the
assets of which have been acquired in any manner by such Borrower or a
Subsidiary thereof, realized by such corporation prior to the date of such
acquisition;
(d) net earnings and losses of any corporation with which such
Borrower or a Subsidiary thereof shall have consolidated or which shall
have merged into or with such Borrower or a Subsidiary thereof prior to the
date of such consolidation or merger;
(e) net earnings of any business entity in which such Borrower or a
Subsidiary thereof has an ownership interest unless such net earnings shall
have actually been received by the Borrower in the form of cash
distributions;
(f) earnings resulting from any reappraisal, revaluation or write-up
of assets;
(g) any gain arising from the acquisition of any securities of such
Borrower; and
(h) any reversal of any contingency reserve, except to the extent that
provision for such contingency reserve shall have been made from income
arising during such period.
3
<PAGE>
"Consolidated Current Assets" shall mean, at any date, the aggregate amount
of all assets of a Borrower and its Subsidiaries which would be properly
classified as current assets at such date, but excluding deferred assets, all
computed as per management statements prepared on a consistent basis.
"Consolidated Current Liabilities" shall mean the aggregate amount of all
liabilities of a Borrower and its Subsidiaries (including tax and other proper
accruals) which would be classified as current liabilities, all computed as per
management statements prepared on a consistent basis.
"Consolidated Interest Expense" shall mean the interest expense of a
Borrower and its Subsidiaries during such period determined on a consolidated
basis in accordance with generally accepted accounting principles consistently
applied, and shall in any event include, without limitation, (i) the
amortization of debt discounts, (ii) the amortization of all fees payable in
connection with the incurrence of Indebtedness to the extent included in
interest expense, (iii) the portion of any Capitalized Lease Obligation
allocable to interest expense, (iv) all fixed or calculable dividend payments on
preferred stock, and (v) payments of interest expense in kind.
"Consolidated Net Income Available for Interest Charges" for any period
shall mean the sum of (i) Consolidated Adjusted Net Income during such period,
plus (to the extent deducted in determining adjusted net income), (ii) all
provisions for any federal, state or other income taxes made by a Borrower
during such period, and (iii) Interest Charges during such period.
"Consolidated Tangible Net Worth" shall mean for a Borrower and its
Subsidiaries, the excess of (i) the aggregate net book value of the assets
(other than patents, patent rights, trademarks, trade names, treasury stock,
franchises, copyrights, licenses, permits, goodwill and other intangible assets
classified as such in accordance with generally accepted accounting principles
and appearing on the balance sheet as of the Effective Date) after all
appropriate adjustments in accordance with generally accepted accounting
principles applied on a consistent basis (including, without limitation,
reserves for doubtful receivables, obsolescence, depreciation and amortization
and excluding the amount of any write-up or revaluation of any asset) over (ii)
Consolidated Total Liabilities, in each case computed and consolidated in
accordance with generally accepted accounting principles applied on a consistent
basis.
"Consolidated Total Unsubordinated Liabilities" shall mean all items which,
in accordance with generally accepted accounting principles applied on a
consistent basis, would properly be included on the liability side of the
balance sheet (other than Subordinated Debt, capital stock, capital surplus and
retained earnings), as of the date on which the amount of Consolidated Total
Unsubordinated Liabilities is to be determined, of a Borrower and its
Subsidiaries computed and consolidated in accordance with generally accepted
accounting principles applied on a consistent basis.
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"Contractual Obligation" as to any Person, any provision of any security
issued by such Person or any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its property is bound.
"Default" shall mean any of the events specified in Article VIII hereof,
whether or not any requirement for the giving of notice or the lapse of time or
both or any other condition has been satisfied.
"EBITDA" shall mean the sum of Consolidated Net Income Available for
Interest Charges, plus depreciation and amortization.
"Environmental Laws" shall mean any and all Federal, State, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees
or requirements of any Governmental Authority regulating, relating to or
imposing liability or standards of conduct concerning environmental protection
matters, including, without limitation, Hazardous Materials, as now or may
hereafter be in effect.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9) of
ERISA) which together with a Borrower or a Subsidiary thereof would be deemed to
be a member of the same to controlled group" within the meaning of Section
414(b), (c), (m) and (o) of the Code.
"Eurodollar Rate Loan" shall mean a Loan bearing interest in accordance
with Section 2.10 of this Agreement.
"Eurodollar Rate" and "Eurodollar Reserves" shall have the meaning
specified in the definition of "Adjusted Eurodollar Rate".
"Event of Default" shall mean any Event of Default set forth in Article
VIII.
"Executive Officer" shall mean any of the Chairman, the President, the
Chief Financial Officer, the Secretary, the Treasurer, and any Vice-President of
either Borrower, as applicable, and their respective successors, if any,
designated by the Board of Directors.
"Expiration Date" shall mean the final payment date of any Term Loan,
whether as stated by its terms or by acceleration hereunder.
"Fixed Rate Loan" shall mean any Eurodollar Rate Loan or Absolute Rate
Loan.
"Funded Debt" shall mean, with respect to any Person, all Indebtedness of
such Person for money borrowed which by its terms matures more than one year
from the date as of which such Funded Debt is incurred, and any Debt of such
Person maturing within one year from such date which is renewable or extendable
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at the option of the obligor to a date beyond one year from such date (whether
or not theretofore renewed or extended), including any such indebtedness
renewable or extendable at the option of the obligor under, or payable from the
proceeds of other indebtedness which may be incurred pursuant to, the provisions
of any revolving credit agreement or other similar agreement plus the aggregate
amount of guaranties by that Person of all such liabilities of other Persons.
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Hazardous Materials" includes, without limit, any flammable explosives,
radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic
substances, defined in the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 1801, et
seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C.
Sections 9601, et seq.), and in the regulations adopted and publications
promulgated pursuant thereto, or any other laws.
"Indebtedness" shall include all obligations, contingent and otherwise,
which in accordance with generally accepted accounting principles should be
classified upon the obligor's balance sheet as liabilities, but in any event
including liabilities (whether or not they should be so classified upon such
balance sheet) secured by any lien existing on property owned or acquired
subject thereto, whether or not the liability secured thereby shall have been
assumed, and all guarantees.
"Insolvency" shall mean with respect to any Multiemployer Plan, the
condition that such plan is insolvent within the meaning of such term used in
Section 4245 of ERISA.
"Insolvent" shall mean having the condition of Insolvency.
"Interest Charges" for any period shall mean all interest and all
amortization of debt discount and expense on all Indebtedness of a Borrower and
a Subsidiaries.
"Interest Payment Date" shall mean as to any Eurodollar Rate Loan, Prime
Rate Loan and Absolute Rate Loan: (i) the last day of each calendar quarter
during the term thereof commencing with the calendar quarter immediately
following the date of such Loan and (ii) the Termination Date or Expiration
Date, as the case may be.
"Interest Period" means:
(a) as to any Prime Rate Loan, the period commencing on the date of
such Loan and ending on the date on which the Borrower elects to select a
different interest rate pursuant to this Agreement, and
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(b) as to any Eurodollar Rate Loan, the period commencing on the date
of such Loan and ending on the numerically corresponding day (or if there
is no numerically corresponding day, the last day) of the calendar month
that is one, two, three or six months thereafter, as the Borrower may
elect, and
(c) as to any Absolute Rate Loan, the period requested by the Borrower
and agreed to by the Bank in respect of such Absolute Rate Loan, which
shall be from the Borrowing Date to the Expiration Date of such Absolute
Rate Loan;
provided, however, that (i) if any Interest Period would end on a day which
shall not be a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, with respect to Eurodollar Rate Loans only, such
next succeeding Business Day, would fall in the next calendar month, in which
case such Interest Period shall end on the first preceding Business Day, and
(ii) no Interest Period may be selected for any Fixed Rate Loan which expires
later than the Termination Date or the Expiration Date, as the case may be, and
(iii) if any Interest Period for any Fixed Rate Loan begins prior to any
principal repayment date and would otherwise end after such principal repayment
date, the Interest Period for that portion of the principal amount of such Loan
which is to be repaid by the Borrower in accordance herewith shall terminate on
such principal repayment date, and the Interest Period for the remaining
principal of such Loan shall remain unaffected by such termination
notwithstanding the provisions of the preceding clause.
"Loan(s)" shall mean a loan by the Bank to a Borrower pursuant to Article
II hereof and shall refer to a Prime Rate Loan, Absolute Rate Loan or Eurodollar
Rate Loan, each of which shall be a "Type" of Loan.
"Loan Documents" shall mean collectively, the Agreement, the Notes, any
agreements or documents referred to in Article IV hereof and all other
documents, certificates and instruments executed in connection therewith.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or prospects
of a Borrower and its Subsidiaries taken as a whole, (b) the ability of a
Borrower to perform its obligations under the Loan Documents, or (c) the
validity or enforceability of any of the Loan Documents or the rights or
remedies of the Bank hereunder or thereunder.
"Multiemployer Plan" shall mean a Plan which is a Multiemployer Plan as
defined in Section 4001(a)(3) of ERISA.
"Note(s)" shall mean the Revolving Credit Note(s) and the Term Note(s).
"Operating Agreement" shall mean the Operating Agreement dated October 10,
1986 between Raymond Leasing and Raymond, as may be amended from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title 1 of ERISA or any successor thereto.
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"Person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Plan" shall mean, at any particular time, any employee benefit plan which
is covered by ERISA and in respect of which a Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" shall mean the rate of interest per annum announced from time
to time by the Bank as its prime rate in effect at its principal office in
Buffalo, New York; each change in the Prime Rate shall be effective on the date
such change is announced.
"Prime Rate Loan" shall mean a Loan bearing interest in accordance with
Section 2.08 hereof.
"Raymond Working Capital" shall mean the total of Manufacturing Current
Assets, minus Manufacturing Current Liabilities, as such terms are reflected on
Raymond's consolidated financial statements.
"Reportable Event" shall mean any of the events described in Section
4043(b) of ERISA other than those events as to which the twenty day notice
period is waived under Subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
Sections 2615.
"Revolving Credit Loan" shall mean any Loan to a Borrower pursuant to
Section 2.01.
"Revolving Credit Note" shall mean a promissory note of a Borrower
delivered pursuant to Section 2.02.
"Senior Indebtedness" shall mean the Notes and all other Indebtedness of a
Borrower for money borrowed, whether outstanding on the date hereof or hereafter
created or incurred, which has not been approved by the Bank in writing as being
subordinate and junior to the Loans, and which is permitted hereby.
"Single Employer Plan" shall mean any plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Short Term Indebtedness" shall mean Indebtedness for money borrowed with a
maturity of less than 365 days.
"Subordinated Debt or Indebtedness" shall mean all Indebtedness which is
subordinated in right of payment, in form and substance satisfactory to the
Bank, to all Indebtedness of a Borrower to the Bank, including the currently
outstanding Raymond 6.50% Convertible Subordinated Debentures of $57,500,000 due
12/15/2003 which exists in form and substance satisfactory to the Bank.
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"Subsidiary" means, with respect to any Person, any corporation or other
entity of which at least a majority of the securities or other ownership
interests having ordinary voting power (absolutely or contingently) for the
election of directors or other persons performing similar functions are at the
time owned directly or indirectly by such Person, but excluding Unconsolidated
Investees.
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the reserve percentages expressed as a decimal
established by the Board of Governors of the Federal Reserve System and any
other banking authority for determining the reserve requirements of the Bank in
respect of new non-personal negotiable time deposits in dollars of over $100,000
with maturities approximately equal to the applicable Interest Period, such
reserve requirements including, without limitation, those imposed under
Regulation D of such Board of Governors. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in such percentage.
"Term Loan" shall mean a term loan pursuant to Section 2.04 hereof.
"Term Note" shall mean a promissory note of a Borrower delivered pursuant
to Section 2.05 hereof.
"Termination Date" shall mean the earlier of September 21, 1997, or the
date the Commitment may otherwise be terminated in accordance herewith.
"Type" shall have the meaning specified in definition of "Loan".
"Unconsolidated Investees" shall mean any Persons in which either Borrower
has an investment and which does not report its results on a consolidated basis
with the Borrowers.
"Unfunded Current Liability" of any Plan means the amount, if any, by which
the present value of the accrued benefits under the Plan as of the close of its
most recent plan year exceeds the fair market value of the assets allocable
thereto, determined in accordance with Section 412 of the Code.
"Working Capital" shall mean for a Borrower and its Subsidiaries, the
amount by which Consolidated Current Assets exceed Consolidated Current
Liabilities.
SECTION 1.02. Accounting Terms/Other Definitional Provisions. (a) Except as
otherwise herein specifically provided, each accounting term used herein shall
have the meaning given to it under Generally Accepted Accounting Principles.
"Generally Accepted Accounting Principles" shall mean those generally accepted
accounting principles and practices which are recognized as such by the American
Institute of Certified Public Accountants acting through the Financial
Accounting Standards Board ("FASB") or through other appropriate boards or
committees thereof and which are consistently applied for all periods so as to
properly reflect the financial condition, and the results of operations and
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changes in financial position, of a Borrower, except that any accounting
principle or practice required to be changed by the FASB (or other appropriate
board or committee of the FASB) in order to continue as a generally accepted
accounting principle or practice may be so changed. Any dispute or disagreement
between a Borrower and the Bank relating to the determination of Generally
Accepted Accounting Principles shall, in the absence of manifest error, be
conclusively resolved for all purposes hereof by the written opinion with
respect thereto, delivered to the Bank, of independent accountants selected by a
Borrower and approved by the Bank for the purpose of auditing the periodic
financial statements of a Borrower.
(b) Meanings given to terms defined herein shall be equally applicable to
both the singular and plural forms of such terms.
II. LOANS
SECTION 2.01. Revolving Credit Loans. (a) Subject to the terms and
conditions, and relying upon the representations and warranties, set forth
herein, the Bank agrees to make loans (individually a "Revolving Credit Loan"
and, collectively, the "Revolving Credit Loans") to the Borrowers at any time or
from time to time on or after the date hereof and until the earlier of the
Termination Date or the date the Commitment shall have been terminated in
accordance with the terms hereof, in an aggregate principal amount not in excess
of $10,000,000 at any time (the "Commitment"). Within the foregoing limits, the
Borrowers may borrow hereunder on or after the date hereof and prior to the
Termination Date, repay or reborrow subject to the terms, provisions and
limitations set forth herein. After the Termination Date, no amounts repaid may
be reborrowed. The obligations of the Borrowers in regard to payment of the
Loans hereunder are several not joint, it being expressly agreed and understood
that each Borrower shall be liable to the Bank for only the Loans and interest
accruing thereon made to such Borrower. Notwithstanding the foregoing, each
Borrower shall be jointly and severally liable for any commitment or facility
fees, increased costs, indemnities and expenses hereunder and performance of the
terms and conditions of this Agreement.
(b) Revolving Credit Loans made by the Bank on any one day shall be in any
combination of Prime Rate Loans and Eurodollar Rate Loans, provided, that each
Revolving Credit Loan shall be in an amount not less than $100,000 and in
integral multiples of $100,000. The initial Revolving Credit Loan by the Bank to
a Borrower shall be made against delivery to the Bank of the Revolving Credit
Note of such Borrower, payable to the order of the Bank, as described in Section
2.02 hereof, and upon delivery of the other documentation required in Article IV
herein.
(c) Each Prime Rate Loan shall be made upon one (1) Business Day's, and
each Eurodollar Rate Loan shall be made upon three (3) Business Days', prior
written, telegraphic or facsimile notice from a Borrower to the Bank. Each such
notice (a "Notice of Borrowing") shall be in substantially the form of Schedule
I hereto and shall specify (i) the requested date of such Loan, (ii) the
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requested Type of Loan, (iii) the requested Interest Period for such Loan, and
(iv) the requested amount of such Loan.
SECTION 2.02. Revolving Credit Notes. The Revolving Credit Loans by the
Bank shall be evidenced by promissory notes (each, a "Revolving Credit Note"),
substantially in the form attached hereto as Exhibits A and A-1, appropriately
completed by the appropriate Borrower, duly executed and delivered on behalf of
each Borrower and payable to the order of the Bank in the principal amount equal
to the Commitment. The date and amount of each Revolving Credit Loan, and the
identity of the Borrower, the date and amount of each payment or prepayment of
principal of any Revolving Credit Loan shall be recorded on the grid schedule
annexed to the appropriate Revolving Credit Note and each Borrower authorizes
the Bank to make such recordation. The Revolving Credit Notes and grid schedules
shall be presumptive evidence of the Revolving Credit Loans, absent manifest
error. The aggregate unpaid amount of the Revolving Credit Loans at any time
shall be the principal amount owing on the Revolving Credit Notes at such time.
Unless the Borrower elects to give a Conversion Request as provided in Section
2.04 hereof, the aggregate principal amount outstanding on each Revolving Credit
Note shall be payable on the Termination Date. All accrued and unpaid interest
on the Revolving Credit Loans shall be payable on each Interest Payment Date and
on the Termination Date (if such date is not an Interest Payment Date);
provided, however, that if any such day is not a Business Day, such accrued
interest, if any, shall be payable on the next succeeding Business Day with
additional accrued interest until paid.
SECTION 2.03. Interest on Revolving Credit Loans. Each Revolving Credit
Loan shall bear interest in accordance with Section 2.08, if it is a Prime Rate
Loan and Section 2.10, if it is a Eurodollar Rate Loan.
SECTION 2.04. Term Loans. At any time and from time to time until the
Termination Date either Borrower may deliver to the Bank a request (a
"Conversion Request") that all or a portion of the then outstanding principal
amount of Revolving Credit Loans made to such Borrower be converted to a Term
Loan. The Bank agrees that provided no Default or Event of Default exists
hereunder, and upon the simultaneous payment or prepayment, as the case may be
(which may be from the proceeds of such Term Loan), in full of the principal of
and interest on the Revolving Credit Loans then being converted to such Term
Loan, to make a three, four or five year term loan (the "Term Loan") to the
requesting Borrower on the last day of the Interest Period then in effect for
the Revolving Credit Loans being converted. The Term Loan shall be in the
principal amount contained in the Conversion Request; provided that each Term
Loan shall be in a principal amount of not less than $1,000,000 and integral
multiples thereof; provided, further, that any request for a conversion to a
Term Loan must be for an Interest Period co-extensive with the term remaining
between the Borrowing Date for such Term Loan request and the Expiration Date
(as defined in Section 2.05). The Bank shall make each Term Loan hereunder
against delivery to it of a Term Note payable to the Bank, as described in
Section 2.05 hereof. The principal amount of any Term Loans made under this
section when made shall act as a reduction of the Bank's Commitment to make any
Revolving Credit Loans in such principal amounts, provided, however, that prior
to the Termination Date, at the time of each principal installment payment
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pursuant to Section 2.05 hereof such Commitment to make Revolving Credit Loans
shall be deemed reinstated by the amount of such principal payment.
SECTION 2.05. Term Notes, Grid Schedules. (a) Each Term Loan shall be
evidenced by a promissory note ("Term Note") substantially in the form attached
hereto as Exhibit B, appropriately completed, payable to the order of the Bank,
duly executed and delivered on behalf of the appropriate Borrower, dated the
Borrowing Date and in the principal amount of such Term Loan. The principal
amount outstanding on such Term Note shall be payable as to principal in twelve
(12), sixteen (16) or twenty (20) equal consecutive quarterly installments and
payable on the last day of each calendar quarter, commencing on the first such
day to occur after such Term Loan Borrowing Date with a final payment due on the
last day of the 12th, 16th or 20th calendar quarter thereafter as applicable
(the "Expiration Date"). The date and amount of each Term Loan, each Term Loan
term, each applicable interest rate and related Interest Period, the identity of
the Borrower, and the date and amount of each payment or prepayment of principal
of such Term Loan shall be recorded on the grid schedule annexed to such Term
Note, and each Borrower authorizes the Bank to make such recordation. Each Term
Note and grid schedule shall be presumptive evidence of such Term Loan made by
the Bank, absent manifest error.
(b) All said notations and endorsements on the grid schedules annexed to
all Notes shall, in the absence of manifest error, be conclusive as to such
notations and endorsements, provided, however, that the failure to make said
notation or endorsement with respect to any Loan or payment shall not limit or
otherwise affect the obligation of any Borrower under the Agreement or the
Notes.
SECTION 2.06. Interest on Term Loans. Each Term Loan shall bear interest in
accordance with Section 2.07.
SECTION 2.07. Interest on Absolute Rate Loans. The Borrowers shall pay
interest on the unpaid principal amount of each Absolute Rate Loan from the
Borrowing Date of such Loan until the date such principal amount is due and
payable, on each Interest Payment Date for such Loan at an interest rate per
annum equal to the Absolute Rate applicable to such Loan.
SECTION 2.08. Interest on Prime Rate Loans. The Borrowers shall pay
interest on the unpaid principal amount of each Prime Rate Loan from the
Borrowing Date of such Loan until the date such principal amount is due and
payable, on each Interest Payment Date for such Loan at an interest rate per
annum equal to the Prime Rate in effect from time to time.
SECTION 2.09. Intentionally Deleted.
SECTION 2.10. Interest on Eurodollar Rate Loans. The Borrowers shall pay
interest on the unpaid principal amount of each Eurodollar Rate Loan from the
Borrowing Date of such Loan until the date such principal amount is due and
payable, on each Interest Payment Date for such Loan at an interest rate per
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annum equal to the Adjusted Eurodollar Rate in effect for the Interest Period
for such Loan, plus 0.875%.
SECTION 2.11. Continuation and Conversion of Loans. The Borrowers shall
have the right, at any time on three (3) Business Days' prior irrevocable
written notice to the Bank, to continue any Prime Rate Loan or Eurodollar Rate
Loan or portion thereof into a subsequent Interest Period, if applicable, and to
convert any Revolving Credit Loan or portion thereof into a Loan of a different
Type, subject to the selection of Interest Periods in accordance with the
definition thereof and to the following conditions precedent:
(a) no Event of Default shall have occurred and be continuing at the
time of such continuation or conversion;
(b) in the case of a continuation of or conversion of a Loan(s), the
aggregate principal amount of Loans continued or converted shall not be
less than $500,000 with respect to Fixed Rate Loans and in multiples of
$250,000 with respect to Prime Rate Loans;
(c) each conversion shall be effected by the Bank by applying the
proceeds of the new Absolute Rate Loan, Prime Rate Loan or Eurodollar Rate
Loan to the Loan (or portion thereof) being converted, and accrued interest
on the Loan (or portion thereof) being converted shall be paid by the
Borrower at the time of conversion; and
(d) a Eurodollar Rate Loan may be converted to another Type of Loan
only on the last day of its Interest Period;
(e) each request for a Eurodollar Rate Loan or a continuation thereof
which shall fail to state an applicable Interest Period shall be deemed to
be a request for an Interest Period of one month's duration;
(f) if the last day of an Interest Period with respect to a Loan that
is to be converted to a Fixed Rate Loan is not a Business Day, then such
conversion shall be made on the next succeeding Business Day and during the
period from the last such day of an Interest Period to such succeeding
Business Day such Loan shall bear interest as if it were a Prime Rate Loan;
(g) in the event that the Borrower does not give notice to continue
any Eurodollar Rate Loan into a subsequent Interest Period, the Borrower
shall be deemed to have requested that such Loan (unless repaid) be
converted to a Prime Rate Loan at the expiration of the then current
Interest Period; and
(h) any conversion of a Revolving Credit Loan into a Term Loan must
also comply with the provisions of Section 2.04 hereof.
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SECTION 2.12. Prepayment of Loans. (a) Subject to the provisions of
Sections 2.12(b), 2.17, 2.20 and 2.21 hereof, a Borrower may, by 11 a.m. of
the day of prepayment in the case of a Prime Rate Loan and upon three (3)
Business Days' notice to the Bank in the case of a Fixed Rate Loan, prepay the
outstanding amount of any Loan in whole or in part with accrued interest to the
date of such prepayment on the amount prepaid; provided, however, that any
prepayment of any Fixed Rate Loan shall be made on the last day of an Interest
Period for such Loan; and provided, further, that each partial prepayment of any
Loan shall be in a principal amount not less than $500,000 and integral
multiples thereof, except in the case of a Term Loan, which may be prepaid in
full. Each prepayment of the Term Loan shall be permanent provided, however,
that prior to the Termination Date, as described in Section 2.04 hereof such
payments shall cause a re-instatement in such amount of the Bank's Commitment to
make Revolving Credit Loans.
(b) The Borrowers shall reimburse the Bank on demand for any loss incurred
or to be incurred by it in the reemployment of the funds released by any
prepayment or conversion of any Fixed Rate Loan required or permitted by any
provision of this Agreement (including in the case of Absolute Rate Loans the
prepayment premium described in paragraph (d) of this section), in each case if
such Loan is prepaid or converted other than on the last day of an Interest
Period for such Loan. The Borrowers further agree to reimburse the Bank on
demand for any loss incurred or to be incurred by it in the reemployment of the
funds released by any refusal by a Borrower to accept any requested Fixed Rate
Loan or any requested continuation thereof or conversion thereto. If any
prepayment hereunder makes it necessary to apply any principal installment
payment on a Note to interest due pursuant to a Fixed Rate Loan, with an
Interest Period extending beyond the date of such installment payment, the
Borrowers shall reimburse the Bank upon demand for any loss incurred or to be
incurred by the Bank (determined in accordance with the immediately preceding
sentence and based on whether such prepayment was voluntary or required) in the
reemployment of funds realized on such installment payment and applied to such
Fixed Rate Loan.
(c) Each prepayment of any Loan shall be applied to the installments
thereof in the inverse order of maturity and accompanied by accrued interest on
the amount of such prepayment to the date thereof.
(d) The prepayment premium for any Absolute Rate Loan shall mean, for any
prepayment of a Note, a premium (as liquidated damages and not as penalty)
payable to the Bank in an amount equal to (i) the difference between the
interest rate on such Absolute Rate Loan and the most recent yield on United
States Treasury Obligations adjusted to a constant maturity having a term most
nearly corresponding to the term remaining from the date of prepayment to the
Expiration Date of such Loan, as most recently published by the Wall Street
Journal (or if not so published, by a similar publication chosen by the Bank in
its sole discretion), multiplied by (ii) a fraction, the numerator of which is
the number of days remaining until such Expiration Date and the denominator of
which is 360, multiplied by (iii) the unpaid principal sum of such Loan
immediately preceding the prepayment. If the Expiration Date of an Absolute Rate
Loan is accelerated following an Event of Default by a Borrower, any tender
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of payment of the amount necessary to satisfy the entire indebtedness made after
such Event of Default shall be expressly deemed a voluntary prepayment. In such
case, to the extent permitted by law, the Bank shall be entitled to the amount
necessary to satisfy the entire indebtedness, plus the appropriate prepayment
premium calculated in accordance with the preceding paragraph.
SECTION 2.13. Reduction or Termination of the Commitment. The Borrowers
acting jointly shall have the right, upon at least two (2) Business Days' prior
written or telephonic notice (promptly confirmed in writing) to the Bank, at any
time to terminate or from time to time reduce the Commitment without premium or
penalty; provided, however, that the Commitment may not be reduced to the extent
that following such reduction the aggregate unpaid principal amount of the Notes
would exceed the Commitment and provided further that, any acceleration of the
Termination Date shall be accompanied by the payment of Commitment Fee then
accrued hereunder.
SECTION 2.14. Fees. (a) The Borrowers agree to pay to the Bank, in
consideration of its Commitment, a commitment fee ("Commitment Fee") of 1/4% per
annum on the average daily unused portion of the Commitment (based on a year of
360 days), payable quarterly commencing on the first day of the second quarter
following the Closing Date.
(b) The Borrowers agree to pay the Bank, at the time of execution and
delivery of this Agreement, a facility fee equal to $25,000.
SECTION 2.15. Default Rate of Interest; Late Payment Penalty. (a) Upon the
occurrence of a Default or an Event of Default, the interest rates applicable to
the Loans shall immediately without further action by the Bank be increased to 3
% above the rate(s) of interest then in effect on the Loans and shall be deemed
converted at the end of the then Interest Period to Prime Rate Loans and be
deemed to bear interest at a rate equal to 2% above the Prime Rate until paid
in full.
(b) The Borrowers also agree to pay a late charge on any principal and/or
interest payments not paid when due at a fluctuating interest rate per annum
equal to 2% above the Prime Rate calculated upon the amount due until the date
of payment.
SECTION 2.16. Application of Payments and Computations. All computations of
the Absolute Rate, Prime Rate and Eurodollar Rate and of fees, overdue payment
interest charges and penalties hereunder shall be made by the Bank on the basis
of a year of 360 days, for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such amounts are
payable.
SECTION 2.17. Funds; Manner of Payment. Each Loan and each payment and
prepayment of principal and interest on the Notes shall be made in federal or
other immediately available funds without set-off or counterclaim to the Bank.
Whenever any payment to be made hereunder or under any Note shall be stated to
be due, or whenever the last day of any Interest Period would otherwise occur on
a day other than a Business Day, such payment shall be made and the last day of
such Interest Period shall occur, on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment
15
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of interest or fees, as the case may be. Each Borrower hereby authorizes the
Bank to charge its accounts 153783 (for Raymond Leasing) and 155879 (for
Raymond), as applicable, for all principal and interest payments and any fees
due hereunder.
SECTION 2.18. Capital Adequacy. If the Bank shall have determined that,
after the date hereof, the adoption of any applicable 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 the Bank (or any
lending office of the Bank) or the Bank'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 the Bank's capital or on the capital of
the Bank's holding company, if any, as a consequence of its obligations
hereunder to a level below that which the Bank or the Bank's holding company
could have achieved but for such adoption, change, compliance or directive
(taking into consideration the Bank's policies and the policies of the Bank's
holding company with respect to capital adequacy) by an amount deemed by the
Bank to be material, then from time to time the Borrowers shall pay to the Bank
such additional amount or amounts as will compensate the Bank or the Bank's
holding company for any such reduction suffered.
SECTION 2.19. Inability to Determine Rate. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Fixed Rate Loan, the Bank shall have determined (which
determination shall, in the absent of manifest error, be conclusive and binding
upon the Borrower) that such rate will not accurately reflect the cost to the
Bank of making or funding the principal amount of a Fixed Rate Loan during such
Interest Period, or that reasonable means do not exist for ascertaining the rate
on the Fixed Rate Loan, the Bank shall, as soon as practicable thereafter, give
written, telegraphic, telephonic or facsimile notice of such determination to
the Borrower and any request by the Borrower for a Fixed Rate Loan conversion or
continuation of a Fixed Rate Loan shall be deemed a request for a Prime Rate
Loan or another Type of Fixed Rate Loan if it is then currently available. After
such notice shall have been given, and until the circumstances giving rise to
such notice no longer exist, each request for a Fixed Rate Loan shall be deemed
to be a request for a Prime Rate Loan or another Type of Fixed Rate Loan if it
is then currently available.
SECTION 2.20. Other Events. (a) In the event that any enactment of or
change after the date hereof in applicable law, regulation, condition, directive
or interpretation thereof (including any request, guideline or policy whether or
not having the force of law and including, without limitation, Regulation D
promulgated by the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect) by any authority charged with the
administration or interpretation thereof:
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(i) subjects the Bank to any tax with respect to the Loans hereunder
or changes the basis of taxation of payment to the Bank of principal of or
interest on any Loan or any commitment hereunder or any other amounts
payable hereunder (other than any tax measured by or based upon the overall
net income of the Bank or any branch or office thereof, imposed by the
United States of America or by any other jurisdiction in which the Bank is
qualified to do business or any political subdivision or taxing authority
therein); or
(ii) imposes, modifies or deems applicable any reserve or deposit
requirements against any assets held by, deposits with or for the account
of, or loans or commitments by, an office of the Bank in connection with
payments by the Bank hereunder; or
(iii) imposes upon the Bank or the London interbank market any other
condition with respect to any amount paid or payable to or by the Bank
pursuant to this Agreement;
and the result of any of the foregoing is to increase the cost to the Bank of
making the payment or maintaining its Commitment and Term Loan or to reduce the
amount of the payment receivable by the Bank hereunder or to require the Bank to
make the payment on or calculated by reference to the gross amount of the sum
received by it pursuant hereto, in each case by an amount which the Bank in its
reasonable judgment deems material, then:
(A) the Bank shall promptly notify the Borrowers in writing of the
happening of such event;
(B) the Bank shall promptly deliver to the Borrowers a certificate stating
the change which has occurred or the reserve requirements or other
conditions which have been imposed on the Bank or the request,
direction or requirement with which it has complied, together with the
date thereof, the amount of such increased cost, reduction or payment
and the way in which such amount has been calculated; and
(C) the Borrowers shall pay to the Bank, within 30 days after delivery of
the certificate referred to in clause (B) above, such an amount or
amounts as will compensate the Bank for such additional cost,
reduction or payment.
The Bank agrees to designate a different office of the Bank as its lending
office for Eurodollar Rate Loans if the designation would avoid or reduce any
amount payable by the Borrowers to the Bank pursuant to this paragraph (a);
provided, however, that such designation need not be made if it would result in
any additional costs, expenses or risks to the Bank that are not reimbursed by
the Borrowers pursuant hereto or would be in any other respect prejudicial to
the Bank. If the Bank makes a demand for compensation pursuant to this paragraph
(a), the Borrowers may at any time, upon at least three Business Days' prior
written or telegraphic notice to the Bank either (i) repay in full any
outstanding Eurodollar Rate Loan or Fixed Rate Loan, together with accrued
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interest thereon to the date of prepayment or (ii) convert such Loan to a Loan
of a different Type, notwithstanding the provisions of Section 2.12(b).
(b) Failure on the part of the Bank to demand compensation under paragraph
(a) above on any one occasion shall not constitute a waiver of its right to
demand such compensation on any other occasion and failure on the part of the
Bank to deliver any certificate in a timely manner shall not in any way reduce
any obligations of the Borrowers to the Bank under this Section 2.20.
SECTION 2.21. Change in Legality. (a) Notwithstanding anything to the
contrary contained elsewhere in this Agreement, if any change after the date
hereof in any law or regulation or in the interpretation thereof by any
governmental authority charged with the administration thereof shall make it
unlawful (based on the opinion of any counsel, whether in-house, special or
general, for the Bank) for the Bank to make or maintain any Fixed Rate Loan or
to give effect to its obligations as contemplated hereby with respect to any
Fixed Rate Loan, then, by written notice to the Borrowers by the Bank, the Bank
may:
(i) declare that such Fixed Rate Loans will not thereafter be made by
the Bank hereunder, whereupon the Borrowers shall be prohibited from
requesting such Loans from the Bank hereunder unless such declaration is
subsequently withdrawn; and the Bank agrees to withdraw any such
declaration if and to the extent that the making and/or maintenance by the
Bank of its Fixed Rate Loans shall cease to be unlawful; and
(ii) require that all outstanding Fixed Rate Loans made by it to be
converted to Prime Rate Loans, whereupon all such Loans shall be
automatically converted to Prime Rate Loans as of the effective date of
such notice as provided in paragraph (b) below (notwithstanding the
provisions of Section 2.12).
(b) For purposes of this Section 2.21, a notice to the Borrowers by the
Bank pursuant to paragraph (a) above shall be effective, if lawful and if any
Fixed Rate Loans shall then be outstanding, on the last day of then current
Interest Period; otherwise, such notice shall be effective on the date of
receipt by the Borrowers.
(c) The Bank agrees to designate a different office of the Bank as its
lending office for Eurodollar Rate Loans if such designation will effect
compliance with the law or regulation or interpretation thereof invoking the
provisions of this Section 2.21; provided, however, that such designation need
not be made if it would result in any additional costs, expenses or risks to the
Bank that are not reimbursed by the Borrowers pursuant hereto or would be in any
other respect prejudicial to the Bank.
SECTION 2.22 Limitation on Interest. Notwithstanding anything to the
contrary contained in this Agreement, (A) in no event shall interest be payable
on any Loan at a rate in excess of the maximum rate permitted by applicable law,
and (B) solely to the extent necessary to result in such interest not being
payable at a rate in excess of such maximum rate, any amount that would be
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treated as part of such interest under a final judicial interpretation of
applicable law shall be deemed to have been a mistake and automatically
canceled, and, if received by the Bank. shall be refunded to the Borrower which
paid such amount, it being the intention of the Bank and of the Borrowers that
such interest not be payable at a rate in excess of such maximum rate.
III. REPRESENTATIONS AND WARRANTIES
Each Borrower, for itself, represents and warrants to the Bank, that:
SECTION 3.01. Organization, Corporate Powers, etc. The Borrower (i) is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware or New York, as applicable, and (ii) has the power
and authority to own its properties and to carry on its business as now being
conducted, (iii) is duly qualified to do business in every jurisdiction wherein
the conduct of its business or the ownership of its properties is such as to
require such qualification and (iv) has the corporate power to execute, deliver
and perform the Loan Documents.
SECTION 3.02. Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Borrower of the Loan Documents
and the borrowings by the Borrower hereunder (a) has been duly authorized, (b)
will not violate (i) any provision of law or any governmental rule or regulation
applicable to the Borrower, (ii) any order of any court or other agency of
government binding on the Borrower or any indenture, agreement or other
instrument to which the Borrower is a party, or by which the Borrower or any of
its property is bound, and (c) will not be in conflict with, result in a breach
of or constitute (with due notice and/or lapse of time) a default under, any
such indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of its property or assets other than as contemplated by the Loan Documents. Each
person executing the Loan Documents has full authority to execute and deliver
same for and on behalf of the Borrower.
SECTION 3.03. Financial Condition. (a) The Borrower has furnished the Bank
with consolidated financial statements of each Borrower and their Subsidiaries
for the fiscal year ending December 31, 1994, audited and certified by Ernst &
Young together with unaudited statement/balance sheets and the related
statements of income and retained earnings for the period ending June 30, 1995.
Such financial statements were prepared in conformity with Generally Accepted
Accounting Principles, and present fairly the financial condition of each
Borrower and their Subsidiaries as of the date of such financial statements and
the results of operations for the period covered thereby.
(b) Neither the Borrowers nor any of their consolidated Subsidiaries had,
at the date of the most recent balance sheet referred to above, any material
contingent obligation, contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction
or other financial derivative, which is not reflected in the foregoing
statements or in the notes thereto. 19
<PAGE>
(c) During the period from June 30, 1995 to and including the date hereof
there has been no sale, transfer or other disposition by the Borrowers or any of
their consolidated Subsidiaries of any material part of its business or property
and no purchase or other acquisition of any business or property (including any
capital stock of any other Person) material in relation to the consolidated
financial condition of the Borrowers and their consolidated Subsidiaries at June
30, 1995.
(d) Since June 30, 1995 there has been no development or event nor any
prospective development or event, which has had or could reasonably be expected
to have a Material Adverse Effect. There is no obligation or liability,
contingent or otherwise, of the Borrowers and its Subsidiaries, which is
material in amount and which is not, or shall not be, reflected in the foregoing
statements (and the related notes thereto) as of said date.
SECTION 3.04. Taxes. All assessed deficiencies resulting from Internal
Revenue Service examinations of the Federal income tax returns of the Borrower
have been discharged or reserved against. The Borrower has filed or caused to be
filed all Federal, state and local tax returns which are required to be filed,
and have paid or have caused to be paid all taxes as shown on said returns or on
any assessment received by it, to the extent that such taxes have become due,
except any such taxes that are immaterial in amount or are being contested in
good faith with appropriate reserves set aside therefor.
SECTION 3.05. Title to Properties. The Borrower has good and marketable
title to its properties and assets reflected on the balance sheets referred to
in Section 3.03 hereof, except for such properties and assets as have been
disposed of since the date of such balance sheet as no longer used or useful in
the conduct of its business or as have been disposed of in the ordinary course
of business, and all such properties and assets are free and clear of mortgages,
pledges, liens, charges and other encumbrances, except as required or permitted
by the provisions hereof or as disclosed in the balance sheets referred to in
Section 3.03 hereof.
SECTION 3.06. Litigation. (a) There are no actions, suits or proceedings
(whether or not purportedly on behalf of the Borrower) pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
material property of the Borrower, at law or in equity or before or by any
Federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which involve any of the
transactions contemplated herein or which, if adversely determined against the
Borrower, would have a Material Adverse Effect; and (b) the Borrower is not in
default with respect to any judgment, writ, injunction, decree, rule or
regulation of any court or Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, which would have a Material Adverse Effect.
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SECTION 3.07. Agreements. The Borrower is not a party to any agreement or
instrument or subject to any charter or other corporate restriction or any
judgment, order, writ, injunction, decree or regulation materially and adversely
affecting its business, properties or assets, operations or condition (financial
or otherwise). The Borrower is not in default in any manner which would have a
Material Adverse Effect or materially and adversely affect the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any other agreement or instrument to which it is a party.
SECTION 3.08. ERISA. No Reportable Event has occurred during the five-year
period prior to the date on which this representation is made or deemed made
with respect to any Plan, and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code. The present value of all
accrued benefits under each Single Employer Plan maintained by the Borrower or
any Commonly Controlled Entity (based on those assumptions used to fund the
Plans) did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the Borrower nor any Commonly Controlled Entity
would become subject to any liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
reorganization or Insolvent.
SECTION 3.09. Proceeds of the Loans. The proceeds of the Loans shall be
used by the Borrower only for the purposes described in the preamble hereto.
SECTION 3.10. Federal Reserve Regulations. (a) The Borrower is not engaged
principally in, nor have as one of its important activities, the business of
extending credit for the purpose of purchasing or carrying any "margin stock"
(within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System of the United States, as amended to the date hereof). No part of
the proceeds of the borrowings hereunder will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any such margin stock. No part of the proceeds of the borrowings
hereunder will be used for any purpose which violates or which is inconsistent
with the provisions of Regulation X of said Board of Governors. If requested by
the Bank, the Borrower will furnish to the Bank a statement on Federal Reserve
Form U-1.
(b) No part of the proceeds of the Loans will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately, (i) to purchase
or to carry margin stock or to extend credit to others for the purpose of
purchasing or carrying margin stock, or to refund indebtedness originally
incurred for such purpose, or (ii) for any purpose which violates or is
inconsistent with the provisions of the Regulations G, T, U, or X of the Board
of Governors of the Federal Reserve System.
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SECTION 3.11. Subsidiaries. Attached hereto as Schedule II is a correct
and complete list of all the Borrower's Subsidiaries and Affiliates, showing as
to each Subsidiary, its name, the jurisdiction of its incorporation and the
percentage of such outstanding shares owned by the Borrower and other
Subsidiaries, respectively. Each of the Borrower's Subsidiaries and Affiliates
is a corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 3.12. Environmental Matters. To the best knowledge of the Borrower,
each of the representations and warranties set forth in paragraphs (a) through
(e) of this subsection is true and correct with respect to each parcel of real
property owned or operated by the Borrower and/or its Subsidiaries (the
"Properties"), except to the extent that the facts and circumstances giving rise
to any such failure to be so true and correct could not reasonably be expected
to have a Material Adverse Effect:
(a) The Properties do not contain, and have not previously contained,
in, on, or under, including, without limitation, the soil and groundwater
thereunder, any Hazardous Materials.
(b) The Properties and all operations and facilities at the Properties
are in compliance with all Environmental Laws, and there is no Hazardous
Materials contamination or violation of any Environmental Law which could
interfere with the continued operation of any of the Properties or impair
the fair market value of any thereof.
(c) Neither the Borrower nor any of its Subsidiaries has received any
complaint, notice of violation, alleged violation, investigation or
advisory action or of potential liability or of potential responsibility
regarding environmental protection matters or permit compliance with regard
to the Properties, nor is the Borrower aware that any Governmental
Authority is contemplating delivering to the Borrower or any of its
Subsidiaries any such notice.
(d) Hazardous Materials have not been generated, treated, stored,
disposed of, at, on or under any of the Properties, nor have any Hazardous
Materials been transferred from the Properties to any other location.
(e) There are no governmental, administrative actions or judicial
proceedings pending or contemplated under any Environmental Laws to which
the Borrower or any of its Subsidiaries is or will be named as a party with
respect to the Properties, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental
Laws with respect to any of the Properties.
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SECTION 3.13. Not an Investment Company. The Borrower is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
The Borrower is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
SECTION 3.14. Material Change. No material adverse change in the business
or operations of the Borrower has occurred since the financial statements dated
as of June 30, 1995 previously delivered to Bank.
SECTION 3.15. Governmental Approval. No registration with or consent or
approval of, or other action by, any Federal, state or other governmental
authority or regulatory body is required in connection with the execution,
delivery and performance of the Loan Documents or the borrowings hereunder.
SECTION 3.16. Full Disclosure. All written information heretofore
furnished by the Borrower to the Bank for purposes of or in connection with this
Agreement is, and all such information hereafter furnished by the Borrower to
the Bank will be, true and accurate in all material respects on the date as of
which such information is stated or certified. The Borrower has disclosed to the
Bank in writing any and all facts which, in the reasonable judgment of the
Borrower have or would be reasonably likely to cause a Material Adverse Effect.
SECTION 3.17. Binding Effect. This Agreement and each other Loan Document
to which the Borrower or any of its Subsidiaries is a party constitute the
legal, valid and binding obligations of the Borrower and any of its Subsidiaries
to the extent it is a party thereto, enforceable against such Person in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization or similar laws affecting
the enforcement of creditors' rights generally or by equitable principles
relating to enforceability.
SECTION 3.18. Trademarks and Licenses, etc. The Borrower and its
Subsidiaries own or are licensed or otherwise have the right to use, to the best
of their knowledge, all of the trademarks, service marks, trade names,
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person, to the extent that failure to have such rights would
reasonably be likely to cause a Material Adverse Effect. To the best knowledge
of the Borrower, no slogan or other advertising device or product, now employed,
or now contemplated to be employed by the Borrower or any of its Subsidiaries
infringes upon any rights held by any other Person; no claim or litigation
regarding any of the foregoing is pending or threatened, and no statute, law,
rule, regulation, standard or code is pending or, to the knowledge of the
Borrower, proposed regarding the foregoing, which, in either case, would
reasonably be expected to result in a Material Adverse Effect.
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IV. CONDITIONS OF LENDING
The obligation of the Bank to lend hereunder is subject to the following
conditions precedent:
SECTION 4.01. Representations and Warranties; No Default. At the time of
each borrowing hereunder: (i) the representations and warranties set forth in
Article III hereof shall be true and correct in all material respects on and as
of such time with the same effect as though such representations and warranties
had been made on and as of such time; and (ii) the Borrowers shall be in
compliance with all the terms and provisions set forth herein on their part to
be observed or performed, and no Default or Event of Default shall have occurred
and be continuing at the time of each borrowing hereunder.
SECTION 4.02. Opinion of Counsel. On or prior to the Closing Date, the Bank
shall have received the legal opinion of the Borrowers' Vice President - General
Counsel and Secretary, counsel to the Borrowers covering such matters incident
to the transactions contemplated by this Agreement as the Bank may reasonably
require.
SECTION 4.03. No Default Certificate; Deemed Representation. At the time
of the initial borrowing hereunder, each Borrower shall deliver to the Bank a
certificate in the form of Schedule III, dated such date and signed by the Chief
Financial Officer of such Borrower confirming compliance with the conditions
precedent set forth in Sections 4.01 hereof. Each request for a subsequent
borrowing hereunder shall be deemed a representation and warranty by such
Borrower that the conditions precedent set forth in Sections 4.01 hereof are
true and correct with the same effect as though such representations and
warranties had been made on and as of the date of such borrowing.
SECTION 4.04. Supporting Documents. On or prior to the Closing Date, the
Bank shall have received (a) a certificate of good standing for the Borrowers
from the Secretary of the State of Delaware or New York, as appropriate, dated
as of a recent date; (b) copies of the Certificates of Incorporation and By-laws
of the Borrowers (c) a certificate of the Secretary or an Assistant Secretary of
the Borrowers dated the Closing Date and certifying (i) that neither the
Certificates of Incorporation nor the By-laws of the Borrowers have been amended
since attaching a true and correct copy of any such amendment; (ii) that
attached thereto is a true and complete copy of resolutions adopted by the Board
of Directors of the Borrowers authorizing the execution, delivery and
performance of the Loan Documents; (iii) the incumbency and specimen signature
of each officer of the Borrowers executing the Loan Documents, and a
certification by another officer of the Borrowers as to the incumbency and
signature of the Secretary or Assistant Secretary of the Borrowers; and (d) such
other documents as the Bank may reasonably request.
SECTION 4.05. Other Information, Documentation. The Bank shall receive such
other and further information and documentation as it may reasonably require,
including, but not limited to, any information or documentation or a letter from
the Borrowers relating to their compliance with ERISA and with the requirements
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of all federal, state and local laws, ordinances, rules, regulations or policies
governing the use, storage, treatment, transportation, refinement, handling,
production or disposal of Hazardous Materials.
V. AFFIRMATIVE COVENANTS
Each Borrower, for itself, covenants and agrees with the Bank that, so long
as this Agreement shall remain in effect or any of the principal of or interest
on the Notes or any fees remain unpaid, it will, and will cause each of their
Subsidiaries to:
SECTION 5.01. Corporate Existence, Properties, Insurance, etc. Except as
permitted in Section 5.02, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a corporation, its
rights and franchises and comply, in all material respects, with all laws
applicable to it; at all times maintain, preserve and protect all franchises,
trade names, licenses, patents, trademarks and copyrights and preserve all
material property used or useful in the conduct of their business and keep the
same in good repair, working order and condition, reasonable wear and tear
excluded, and from time to time make, or cause to be made, all needful and
proper repairs, renewals, replacements, betterments and improvements thereto so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times and at all times keep its insurable
proportions adequately insured.
SECTION 5.02. Payment of Indebtedness, Taxes, etc. (a) Pay all indebtedness
and obligations as and when due and payable and (b) pay and discharge or cause
to be paid and discharged promptly all taxes, assessments and governmental
charges or levies imposed upon it or upon its income and profits, or upon any of
its property, real, personal or mixed, or upon any part thereof, before the same
shall become in default, as well as all lawful claims for labor, materials and
supplies or otherwise which, if unpaid, might become a lien or charge upon such
properties or any part thereof; provided, however, that neither the Borrower nor
any of its Subsidiaries shall be required to pay and discharge or cause to be
paid and discharged any such tax, assessment, charge, levy or claim so long as
the validity thereof shall be contested in good faith by appropriate
proceedings, and the Borrower or such Subsidiary, as the case may be, shall have
set aside on its books adequate reserves with respect to any such tax,
assessment, charge, levy or claim so contested; and further provided that,
subject to the foregoing proviso, the Borrower and its Subsidiaries will pay or
cause to be paid all such taxes, assessments, charges, levies or claims upon the
commencement of proceedings to foreclose any lien which has attached as security
therefor.
SECTION 5.03. Reporting Requirements. In the case of each Borrower, furnish
directly to the Bank:
(a) as soon as available and in any event within 120 days after the
end of each fiscal year of each Borrower, a consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as of the end of such fiscal
year and a consolidated income statement and statements of cash flows and
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changes in stockholders' equity of the Borrower and its consolidated
Subsidiaries for such fiscal year, all in reasonable detail and stating in
comparative form the respective consolidated figures for the corresponding
date and period in the prior fiscal year, and all prepared in accordance
with GAAP and as to the consolidated statements accompanied by an opinion
thereon acceptable to the Bank by Ernst & Young or other independent
accountants of national standing selected by the Borrower:
(b) deliver together with the information required in (a) above, the
same information presented on a consolidating basis prepared by management
of each Borrower;
(c) as soon as available and in any event within 45 days after the end
of each of the first three quarters of each fiscal year of the Borrower, a
consolidated and consolidating balance sheet of the Borrower and its
consolidated Subsidiaries as of the end of such quarter and a consolidated
and consolidating income statement and statements of cash flows and changes
in stockholders' equity, of the Borrower and its consolidated Subsidiaries
for the period commencing at the end of the previous fiscal year and ending
with the end of such quarter, all in reasonable detail and stating in
comparative form the respective consolidated and consolidating figures for
the corresponding date and period in the previous fiscal year and all
prepared in accordance with GAAP and certified by the chief financial
officer of the Borrower (subject to year-end adjustments);
(d) promptly upon receipt thereof, copies of any reports submitted to
the Borrower or any of its Subsidiaries by independent certified public
accountants in connection with examination of the financial statements of
the Borrower or any such Subsidiary made by such accountants;
(e) simultaneously with the delivery of the financial statements
referred to above, a certificate of the Chief Financial Officer of the
Borrower (i) certifying that to the best of his knowledge no Default or
Event of Default has occurred and is continuing or, if a Default or Event
of Default has occurred and is continuing, a statement as to the nature
thereof and the action which is proposed to be taken with respect thereto,
and (ii) with computations demonstrating compliance with the covenants
contained in Sections VII, VIIA or VIIB, as applicable;
(f) promptly after the commencement thereof, notice of each action,
suit, and proceeding before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
affecting the Borrower or any of its Subsidiaries which, (i) involves a
claim in which it appears that the potential liability exceeds 1/2% of the
Consolidated Tangible Net Worth of such Borrower plus Subordinated Debt
approved by the Bank in writing; (ii) if determined adversely to the
Borrower or such Subsidiary, could have a material adverse effect on the
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financial condition, properties, or operations of the Borrower or such
Subsidiary, or (iii) questions the validity of any of the Loan Documents;
(g) as soon as possible after the occurrence of each Default or Event
of Default, a written notice setting forth the details of such Default or
Event of Default and the action which is proposed to be taken by the
Borrower with respect thereto;
(h) at all times indicated in (a) above, a copy of the management
letter prepared by the independent auditors;
(i) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Borrowers and
any of their Subsidiaries as the Bank may reasonably request.
SECTION 5.04. Access to Premises and Records. Maintain financial records in
accordance with Generally Accepted Accounting Principles and permit
representatives of the Bank to have access to such financial records and the
premises of the Borrower and any of its Subsidiaries upon request, and to make
such excerpts from such records or to conduct such audits and field examinations
as such representatives deem reasonably necessary.
SECTION 5.05. Notice of Adverse Change. Promptly, but not later than
fifteen (15) Business Days after any change or information shall have come to
the attention of any Executive Officer of the Borrower, notify the Bank in
writing of (a) any change in the business or the operations which, in the good
faith judgment of such officer, would be reasonably likely to have a Material
Adverse Effect, and (b) any information which indicates that any financial
statements which are the subject of any representation contained in this
Agreement, or which are furnished to the Bank pursuant to this Agreement, fail,
to any material extent, to present fairly the financial condition and results of
operations purported to be presented therein, disclosing the nature thereof.
SECTION 5.06. Notice of Default. Promptly, in the event any Executive
Officer of the Borrower knows of any Default or Event of Default, or knows of an
event of default under any other agreement, furnish to the Bank a written
statement as to such occurrence, specifying the nature and extent thereof and
the action (if any) which is proposed to be taken with respect thereto.
SECTION 5.07. ERISA. (a) Comply in all material respects with the
provisions of ERISA applicable to any Plan maintained by the Borrower and the
Subsidiaries; and (b) as soon as possible and, in any event, within 10 days
after the Borrower or any Subsidiary knows any of the following, deliver to the
Bank a certificate of the Chief Financial Officer setting forth details as to
such occurrence and such action, if any, which the Borrower, any Subsidiary or
ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed with or by the Borrower, the
Subsidiary, ERISA Affiliate, the PBGC, a Plan participant or the Plan
Administrator with respect thereto: that a Reportable Event has occurred or is
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expected to occur, that an accumulated funding deficiency has been incurred or
an application may be or has been made to the Secretary of the Treasury for a
waiver or modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under Section
412 of the Code with respect to a Plan, that a Plan has been or may be
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA, that a Plan has an Unfunded Current Liability giving rise to a lien under
ERISA, that proceedings may be or have been instituted to terminate a Plan, that
a proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan, or that the Borrower, any Subsidiary or any
ERISA Affiliate will or may incur any liability (including any contingent or
secondary liability) to or on account of the termination of or withdrawal from a
Plan under Section 4062, 4063, 4064, 4201 or 4204 of ERISA. In addition to any
certificates or notices delivered to the Bank pursuant to clause (b) of the
preceding sentence, copies of annual reports and any other notices received by
the Borrower or Subsidiary required to be delivered to the Bank hereunder shall
be delivered to the Bank no later than 30 days after the later of the date such
report or notice has been filed with the Internal Revenue Service or the PBGC,
given to Plan participants or received by the Borrower or the Subsidiary.
SECTION 5.08. Compliance with Contractual Obligations and Requirements of
Law; Applicable Laws. Comply, in all material respects, with all Contractual
Obligations and requirements of law, the breach of which would be reasonably
likely to have a Material Adverse Effect.
SECTION 5.09. Subsidiaries. Give the Bank prompt written notice of the
creation, establishment or acquisition, in any manner, of any Subsidiary or
Affiliate not existing on the date hereof.
SECTION 5.10. Environmental Laws.
(a) Comply with, and insure compliance by all tenants and subtenants, if
any, with, all Environmental Uses and obtain and comply with and maintain and
insure that all tenants and subtenants obtain and comply with and maintain, any
and all licenses, approvals, registrations or permits required by Environmental
Laws except to the extent that failure to do so could not be reasonably expected
to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws
and promptly comply with all lawful orders and directives of all Governmental
Authorities respecting Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings and the pendency of
such proceedings could not be reasonably expected to have a Material Adverse
Effect; and
(c) Defend, indemnify and hold harmless the Bank and its respective
employees, agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising out
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of, or in any way relating to the violation of or non-compliance with any
Environmental Laws applicable to the real property owned or operated by the
Borrower or any of its Subsidiaries, or any orders requirements or demands of
Governmental Authorities related thereto, including, without limitation,
attorney's and consultant's fees, investigation and laboratory fees, court costs
and litigation expenses, except to the extent that any of the foregoing arise
out of the gross negligence or willful misconduct of the party seeking
indemnification therefor.
SECTION 5.11. Support Services Agreement. Raymond shall maintain the
Support Services Agreement dated September 1, 1993, among it and its Canadian
Subsidiaries, R.H.E., Ltd. and Raymond Industrial Equipment, Ltd., in effect,
comply with its obligations thereunder, and enforce the obligations of its
Subsidiaries thereunder, all without waiver, amendment or assignment by any of
the parties, except with the prior written consent of the Bank.
SECTION 5.12. Voting of Subsidiaries' Shares. The Borrowers will each vote
the shares of any Subsidiary, and cause any Subsidiary share to be voted, in a
manner which will not violate any of the covenants or restrictions of this
Agreement or any other of the Loan Documents.
VI. NEGATIVE COVENANTS
Each Borrower for itself covenants and agrees with the Bank that, so long
as this Agreement shall remain in effect or any of the principal of or interest
on the Notes or any fees remain unpaid, it will not, nor will it permit any
Subsidiary to, directly or indirectly:
SECTION 6.01. Liens. Incur, create, assume or suffer to exist any mortgage,
pledge, lien, charge or other encumbrance or restriction of any nature
whatsoever (including conditional sales, other title retention agreements or
liens on inventory or accounts receivables) on any of their assets now or
hereafter owned, other than:
(a) liens existing on the date hereof as set forth on Schedule IV
attached hereto which liens are not to be renewed, extended or refinanced;
(b) deposits under workmen's compensation, unemployment insurance and
social security laws, or to secure the performance of bids, tenders,
contracts (other than for the repayment of borrowed money) or leases or to
secure statutory obligations or surety, appeal bonds or discharge of lien
bonds, or to secure indemnity, performance or other similar bonds in the
ordinary course of business;
(c) statutory liens of landlords and other liens imposed by law, such
as carriers', warehousemen's or mechanic's liens, incurred in good faith in
the ordinary course of business and deposits made or bonds filed in the
ordinary course of business to obtain the release of such liens;
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(d) liens for taxes not yet due, or liens for taxes contested as
permitted by Section 5.02;
(e) any other liens granted to the Bank; and
(f) debt secured by purchase money mortgages or other encumbrances on
after acquired property, provided that the principal amount of all such
secured debt does not exceed 10% of the Borrower's tangible net worth plus
Subordinated Debt approved by the Bank in writing.
SECTION 6.02. Guarantees, Etc. Assume, guarantee, endorse or otherwise be
or become directly or contingently responsible or liable (including, but not
limited to, an agreement to purchase any obligation, stock, assets, goods or
services or to supply or advance any funds, assets, goods or services, or any
agreement to maintain or cause such Person to maintain a minimum working capital
or net worth or otherwise to assure the creditors of any Person against loss)
for the obligations of any Person ("Guarantee"), or permit any of its
Subsidiaries to do so, (i) except Guarantees by endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business, and (ii) except Guarantees of obligations aggregating not
more than 10% of the amount of its tangible net worth (excluding, however, from
such calculation Raymond's guarantee of Raymond Leasing's 8.86% Senior Notes due
November 27, 1997) from time to time, which Guarantee obligations shall be
included in current liabilities, total liabilities or funded debt, as
appropriate, depending on the terms of the guaranteed obligations.
SECTION 6.03. Sale of Notes. Sell, transfer, discount or otherwise dispose
of notes, accounts receivable or other rights to receive payment with or without
recourse, except for the purpose of collection in the ordinary course of
business.
SECTION 6.04. Investments. Make investments, lend or advance money,
purchase or hold beneficially any stock, other securities, or evidences of
indebtedness of, purchase or acquire all or a substantial part of the assets of,
make or permit to exist any interest whatsoever in, any other Person, other than
as set forth in Section 6.11 hereof, except that the Borrower may invest in:
(a) direct obligations of the United States of America or obligations
guaranteed by the United States of America, provided that such obligations
mature within one year from the date of acquisition thereof;
(b) time certificates of deposit issued by any commercial bank
organized and existing under the laws of the United States or any state
thereof and having aggregate capital and surplus in excess of $500,000,000;
(c) commercial paper rated not less than A-1 or P-1 or their
equivalent by Moody's Investor Services, Inc. or Standard & Poor's
Corporation, respectively;
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(d) money market mutual funds having assets in excess of two billion
dollars;
(e) advances to and/or investments in Subsidiaries that guaranty all
Loans on terms satisfactory to the Bank;
(f) capital leases under which Raymond Leasing is the lessor, entered
into by Raymond Leasing in the ordinary course of its equipment leasing
business; and
(g) advances or investments by Raymond in Unconsolidated Investees
made after December 31, 1994 aggregating up to 15% of Raymond's tangible
net worth plus Subordinated Debt approved by the Bank in writing; or
(h) advances and/or investments in any Person (other than permitted
above), whether by acquisition of stock, indebtedness, other obligation or
security, or by loan, advance, capital contribution, or otherwise so long
as (i) the sum of such acquisition, advance or investment (valued
immediately after such action) made after December 31, 1994 does not exceed
10% of the Borrower's tangible net worth plus Subordinated Debt approved by
the Bank in writing, (ii) a Default or an Event of Default under this Loan
Agreement would not exist, and (iii) the Borrowers could incur at least
$1.00 of additional Senior Indebtedness.
SECTION 6.05. Change in Business. Materially change or alter the nature of
its business from the business currently engaged in.
SECTION 6.06. Dividends. Declare or pay any cash dividend on its capital
stock or make any other distribution with respect to its capital stock (other
than distributions in accordance with Section 6.11 hereof) or redeem, retire,
purchase or otherwise acquire, directly or indirectly, for value or set apart
any sum for the redemption, retirement, purchase or other acquisition of,
directly or indirectly, any share of its capital stock or warrants or options
therefor except that: (a) the Borrower may declare and deliver dividends and
make distributions payable solely in common stock of the Borrower; (b) the
Borrower may purchase or otherwise acquire shares of its capital stock by
exchange for or out of the proceeds received from a substantially concurrent
issue of new shares of its capital stock; (c) the Borrower may make or declare
cash dividends with respect to the capital stock of the Borrower unless
immediately after giving effect thereto, the sum of such cash dividends would
exceed the sum of 50% of cumulative net income (minus 100% of any net loss) of
such Borrower subsequent to December 31, 1993, plus $2,000,000 for Raymond and
$1,000,000 for Raymond Leasing. In addition, neither Borrower will authorize or
make any cash dividends if, after giving effect thereto, a default or event of
default would exist or if the Borrower could not incur at least $1.00 of
additional Senior Indebtedness.
SECTION 6.07. Subordinated Debt. Make any optional prepayment of, or
purchase, redeem or otherwise acquire, or amend any provision in respect of the
subordination or the terms of payment of any Subordinated Debt except such
Subordinated Debt may be converted in part or in full to equity.
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SECTION 6.08. Accounting Policies and Procedures. Permit any material
change in the accounting policies and procedures of the Borrower, other than as
required by generally accepted accounting principles, including a change in the
Borrower's fiscal year, without the prior consent of the Bank.
SECTION 6.09. Stock of Subsidiaries, Etc. (a) Sell or otherwise dispose of
any shares of capital stock of any of its Subsidiaries, or (b) permit any such
Subsidiary to issue any additional shares of its capital stock, except as
permitted by Section 6.06, and except for directors' qualifying shares.
SECTION 6.10. Transactions with Affiliates. Enter into any transaction,
including, without limitation, the purchase, sale or exchange of property or the
rendering of any service, with any Affiliate or permit any of its Subsidiaries
to enter into any transaction, including, without limitation, the purchase, sale
or exchange of property or the rendering of any service, with any Affiliate,
except in the ordinary course of and pursuant to the reasonable requirements of
the Borrower's or such Subsidiary's business and upon fair and reasonable terms
no less favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's length transaction with a Person not an Affiliate.
SECTION 6.11. Merger or Consolidation or Sales of Assets. Neither Borrower
will and will not permit a Subsidiary to become a party to any merger or
consolidation or sell, lease, assign or otherwise dispose of 10% or more of
its consolidated assets in any fiscal year or assets which have accounted for
10% or more of Consolidated Adjusted Net Income of such Borrower in the fiscal
year (except that any Subsidiary may merge into or consolidate with either
Borrower, so long as the Borrower would be the surviving Corporation, or with
another Subsidiary) unless immediately thereafter (1) the Borrower would be the
surviving corporation or (2) the surviving corporation would be (i) organized
under the laws of the United States, (ii) would be engaged in the same line of
business as Borrower, (iii) the surviving corporation expressly assumes, in
writing, the due and punctual payment of the principal and interest and premium,
if any, on the Loans and the due and punctual performance and observance of all
covenants under the Loan Documents, and (iv) in the case of Raymond Leasing,
Raymond expressly acknowledges such merger or consolidation and the continuing
validity of the Operating Agreement; provided, however, that in any case, no
event of default would exist under the covenants contained in this Agreement and
the Borrower would be able to issue at least $1.00 of additional Senior
Indebtedness.
SECTION 6.12. Restrictions on Leases of Equipment. Raymond Leasing shall
not, and shall not permit its Subsidiary to, at any time permit the aggregate
original cost of all equipment at any time subject to a lease and manufactured
or sold by a Person other than Raymond to exceed 15% of the aggregate original
cost of all equipment at such time subject to a lease provided, however, that
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for purposes of this Section, batteries and chargers shall be deemed to be
equipment manufactured by Raymond.
SECTION 6.13. The Raymond Corporation Subsidiaries. Raymond shall not enter
into any agreement or other arrangement, or take or permit its Subsidiaries to
take any action, which would limit its ability to receive loans or dividends
from any of its Subsidiaries other than Raymond Leasing, or would limit the
ability of such Subsidiaries to make such loans or pay such dividends.
VII. FINANCIAL COVENANTS - THE RAYMOND CORPORATION
So long as any of the Notes shall remain unpaid or the Bank shall have any
Commitment under this Agreement, Raymond agrees that it shall, at all times,
with respect to (i) itself, (ii) its existing consolidated Subsidiaries other
than Raymond Leasing and (iii) any Subsidiaries that become consolidated
Subsidiaries after the date of this Agreement:
SECTION 7.01. Minimum Working Capital. Maintain Raymond Working Capital
of not less than S45,000,000.
SECTION 7.02. Minimum Tangible Net Worth. Maintain a tangible net worth of
not less than $42,000,000 plus 50% of its net income earned subsequent to
December 31, 1993.
SECTION 7.03. Leverage Ratio. Maintain a ratio of total unsubordinated
liabilities to tangible net worth of not greater than 1.25 to 1.00.
SECTION 7.04. Interest Coverage. Maintain as of the end of each calendar
quarter a ratio of EBITDA for the four calendar quarter period then ended, to
Interest Expense for such period, of not less than 2.25 to 1.0.
SECTION 7.05. Net Loss. Not incur a net loss in two (2) consecutive
calendar quarters or in any fiscal year.
VII-A. FINANCIAL COVENANTS - RAYMOND LEASING
So long as any of the Notes shall remain unpaid or the Bank shall have any
Commitment under this Agreement, Raymond Leasing agrees that it shall, at all
times:
SECTION 7A.01. Minimum Tangible Net Worth. Maintain a tangible net worth
of not less than $20,000,000 plus 50% of its net income earned subsequent to
December 31, 1993.
SECTION 7A.02. Leverage Ratio. Maintain a ratio of Senior Indebtedness to
tangible net worth of not greater than 3.0 to 1.0.
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SECTION 7A.03. Interest Coverage. Maintain as of the end of each calendar
quarter a ratio of EBITDA for the four calendar quarter period then ended, to
Interest Expense for such period, of not less than 1.3 to 1.0.
SECTION 7A.04. Net Loss. Not incur a net loss in two (2) consecutive
calendar quarters or in any fiscal year.
SECTION 7A.05. Working Capital. Maintain a Working Capital of not less than
$0.
VII-B. FINANCIAL COVENANTS - CONSOLIDATED
So long as any of the Notes shall remain unpaid or the Bank shall have any
Commitment under this Agreement, the Borrowers agree that they shall, at all
times, with respect to (i) Raymond, (ii) its existing consolidated Subsidiaries,
including Raymond Leasing, and (iii) any Subsidiaries that become consolidated
Subsidiaries after the date of this Agreement:
SECTION 7B.01. Minimum Tangible Net Worth. Maintain at all times a
Consolidated Tangible Net Worth of not less than $65,000,000, plus 50% of their
consolidated net income earned subsequent to December 31, 1993.
SECTION 7B.02. Leverage Ratio. Maintain at all times a ratio of
Consolidated Total Unsubordinated Liabilities to Consolidated Tangible Net Worth
of not greater than 1.5 to 1.0.
SECTION 7B.03. Interest Coverage. Maintain as of the end of each calendar
quarter a ratio of EBITDA for the four calendar quarter period then ended, to
Consolidated Interest Expense for such period, of not less than 2.0 to 1.0.
SECTION 7B.04. Net Loss. Not incur a net loss in two (2) consecutive
calendar quarters or in any fiscal year.
VIII. EVENTS OF DEFAULT
SECTION 8.01. Events of Default. In the case of the happening of any of the
following events ("Events of Default"):
(a) default shall occur (i) in the payment of the principal or
interest on any of the Notes or Loans when due or (ii) in the payment of
any fees or other amounts due hereunder within five (5) days after such
fees or other amounts become due in accordance herewith;
(b) any representation or warranty herein or in any of the Loan
Documents, in any certificate or report furnished in connection herewith or
in any amendment to this Agreement, shall prove to be false or misleading
in any material respect when made or given or deemed made or given;
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(c) default shall be made in respect of any agreement or obligation
relating to any obligation of the Borrowers or their Subsidiaries for
borrowed money (other than the Notes), if the effect of such default or the
result of any action by the obligee is to accelerate the maturity of such
obligation or to permit the holder or obligee thereof (or a trustee on
behalf of such holder or obligee) to cause such obligation to become due
prior to the stated maturity thereof or which, with the passage of time,
the giving of notice or both would constitute an event of default under any
agreement, or any such obligation shall not be paid when due after giving
effect to any applicable grace period;
(d) default shall be made in the due observance or performance of any
covenant, condition or agreement to be performed pursuant to, Article VI of
this Agreement;
(e) default shall be made in the due observance or performance of any
covenant, condition or agreement to be performed pursuant to this Agreement
other than as described in (d) above which shall continue unremedied for
more than ten (10) days;
(f) (i) default shall be made in the due observance or performance of
any covenant, condition or agreement of the Borrowers to be performed
pursuant to the Loan Documents (other than this Agreement) and not cured
within any applicable grace period or (ii) any of the Loan Documents (other
than this Agreement), shall cease to be in full force and effect or shall
be declared to be null and void, or the validity or enforceability thereof
shall be contested or any party thereto shall deny that it has any further
liability to the Bank with respect thereto;
(g) the Borrowers or any of their Subsidiaries shall (i) voluntarily
commence any case, proceeding or other action or file any petition seeking
relief under Title 11 of the United States Code or any other existing or
future Federal domestic or foreign bankruptcy, insolvency or similar law,
(ii) consent to the institution of, or fail to controvert in a timely and
appropriate manner, any such proceeding or the filing of any such petition,
(iii) apply for or consent to the employment of a receiver, trustee,
custodian, sequestrator or similar official for either Borrower or any of
their Subsidiaries or for a substantial part of their property, (iv) file
an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due, or (vii) take corporate
action for the purpose of effecting any of the foregoing;
(h) an involuntary case, proceeding or other action shall be commenced
or an involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of a Borrower or any of its
Subsidiaries or of a substantial part of its property, under Title 11 of
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the United States Code or any other existing or future Federal, domestic or
foreign bankruptcy, insolvency or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator or similar official for a
Borrower or any Subsidiary thereof or for a substantial part of their
property, or (iii) the winding-up or liquidation of a Borrower or any
Subsidiary thereof; and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall continue unstayed and in effect for 60 days;
(i) there shall be commenced against a Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged or
stayed or bonded pending appeal within sixty (60) days from the entry
thereof;
(j) one or more judgments or decrees shall be entered against a
Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $500,000 or more and all such
judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 60 days from the entry thereof and have not
been reserved for on such Borrower's financial statements and which are not
actually being contested in good faith in appropriate proceeding;
(k) (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan, or
any lien shall arise on the assets of a Borrower or any Commonly Controlled
Entity in favor of the PBGC or a Plan, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence to have a trustee appointed,
or a trustee shall be appointed, to administer or to terminate, any Single
Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Bank, likely
to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title
IV of ERISA, (v) the Company or any Commonly Controlled Entity shall, or in
the reasonable opinion of the Bank is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or reorganization of,
a Multiemployer Plan, or (vi) any other event or condition shall occur or
exist, with respect to a Plan; and in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or
conditions, if any, could subject a Borrower or any of its Subsidiaries to
any tax, penalty or other liabilities in the aggregate material in relation
to the business, operation, property or financial or other condition of a
Borrower or any of its Subsidiaries and its Subsidiaries taken as a whole;
(l) Raymond shall at any time and for any reason cease to own
beneficially 100% of the outstanding capital stock of Raymond Leasing;
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then, at any time thereafter during the continuance of any such event, the
Bank may, by written notice to the Borrowers (i) terminate the Commitment,
Revolving Credit Loans and the Term Loan(s), and (ii) declare the Notes to
be forthwith due and payable, both as to principal and interest, without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived, anything contained herein or in the Notes to the
contrary notwithstanding, provided, however, that if an event specified in
Section 8.01(g) or (h) hereof shall have occurred, the Commitment,
Revolving Credit Loans and Term Loan(s) shall automatically terminate and
the Notes shall immediately become due and payable, and the Bank in each
instance shall have the right to exercise its rights under the Loan
Documents as permitted by law.
IX. MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications
provided for hereunder shall be in writing and shall be deemed to have been duly
given or made when delivered by hand or facsimile at the address set forth
below, or if sent by certified mail, three days after the day on which mailed,
or, in the case of telex, when answer back received, or, in the case of an
overnight courier service, one business day after delivery to such courier
service, addressed as set forth below, or to such other address as may be
hereafter notified by the respective parties hereto:
(a) if to the Bank, at
Manufacturers and Traders Trust Company
One Fountain Plaza
Buffalo, New York 14203-1495
Attention: Mr. Geoffrey R. Fenn, Vice President
Fax #: 716-848-7318
(b) if to the Borrowers, at
Mr. William B. Lynn, Executive Vice President
The Raymond Corporation
Mr. Patrick J. McManus, President
Raymond Leasing Corporation
Corporate Headquarters
Greene, NY 13778
Fax #: 607-656-9942
(c) as to each such party at such other address as such party shall
have designated to the other in a written notice complying as to
delivery with the provisions of this Section 9.01.
37
<PAGE>
SECTION 9.02. Survival of Agreement-;Successors and Assigns. (a) All
covenants, agreements, representations and warranties made herein and in the
certificates delivered pursuant hereto shall survive the making by the Bank of
the Loans herein contemplated and the execution and delivery to the Bank of the
Notes evidencing such Loans and shall continue in full force and effect so long
as the Notes are outstanding and unpaid or the Commitment is outstanding.
(b) Whenever in this Agreement any of the parties hereto is referred to,
(i) such reference shall be deemed to include the successors and assigns of such
party; (ii) all covenants, promises and agreements by or on behalf of the
Borrowers which are contained in this Agreement shall bind the respective
successors and assigns of the Borrowers and inure to the benefit of the
successors and assigns of the Bank; and (iii) no other Person shall be a direct
or indirect legal beneficiary of, or have any direct or indirect cause of action
or claim in connection with this Agreement or any of the other Loan Documents.
The Bank shall not have any obligation to any Person not a party to this
Agreement or other Loan Documents.
SECTION 9.03. Expenses of the Bank; Indemnification.
(a) The Borrowers will pay all reasonable out-of-pocket costs and expenses
incurred by the Bank in connection with the preparation, development and
execution of the Loan Documents and any amendment, supplement or modification to
this Agreement, the Notes and the other Loan Documents including, without
limitation, the fees and disbursements of counsel to the Bank (including,
without limitation, allocation of the cost of in-house counsel to the Bank
whether or not the transactions hereby contemplated shall be consummated), the
making of the Loans hereunder, the costs and expenses incurred in connection
with the enforcement or preservation of any rights of the Bank under this
Agreement, the Notes and the other Loan Documents or in connection with the
Loans, including, without limitation, fees and disbursements of counsel to the
Bank (including, without limitation, allocation of the cost of in-house counsel
to the Bank).
(b) The Borrowers agree to indemnify the Bank and its respective directors,
officers, employees and agents against, and to hold the Bank and each such
person harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees and expenses, incurred by or
asserted against the Bank or any such person arising out of, in any way
connected with, or as a result of (i) the use of any of the proceeds of the
Loans, (ii) this Agreement or other Loan Documents, (iii) the performance by the
parties hereto and thereto of their respective obligations hereunder and
thereunder (including but not limited to the making of the Commitment) and
consummation of the transactions contemplated hereby and thereby, (iv) breach of
any representation or warranty, or (v) any claim, litigation, investigation or
proceedings relating to any of the foregoing, whether or not the Bank or any
such person is a party thereto; provided, however, that such indemnity shall
not, as to the Bank, apply to any such losses, claims, damages, liabilities or
related expenses to the extent that they result from the gross negligence or
willful misconduct of the Bank.
(c) The Borrowers agree to indemnify, defend and hold harmless the Bank and
its officers, directors, shareholder, agents and employees (collectively, the
"Indemnitees") from and against any loss, cost, damage, liability, lien,
38
<PAGE>
deficiency, fine, penalty or expense (including, without limitation, reasonable
attorney's fees and reasonable expenses for investigation, removal, cleanup and
remedial costs and modification costs incurred to permit, continue or resume
normal operations of any property or assets or business of the firm) arising
from a violation of, or failure to comply with any Environmental Laws and to
remove any lien arising therefrom except to the extent caused by the gross
negligence or willful misconduct of any Indemnitee, which any of the Indemnitees
may incur of which may be claimed or recorded against any of the Indemnitees by
any Person.
(d) The provisions of this Section 9.03 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the invalidity or unenforceability of any term or provision of this
Agreement or any of the Loan Documents, or any investigation made by or on
behalf of the Bank. All amounts due under this Section 8.03 shall be payable on
written demand therefor.
SECTION 9.04. Applicable Law. This Agreement, the Notes and the other Loan
Documents (other than those containing a contrary express choice of law) shall
be governed and construed by and interpreted in accordance with the laws of the
State of New York.
SECTION 9.05. Waiver of Rights by the Bank; Waiver of Jury Trial, etc. (a)
Neither any failure nor any delay on the part of the Bank in exercising any
right, power or privilege hereunder or under the Loan Documents shall operate as
a waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise of any other right, power or privilege. Except as
prohibited by law, each party hereto hereby waives any right it may have to
claim or recover in any litigation referred to in this Section any special,
exemplary, punitive or consequential damages or any damages other than, or in
addition to, actual damages. Each party hereto (i) certifies that neither any
representative, agent or attorney of the Bank has represented, expressly or
otherwise, that the Bank would not, in the event of litigation, seek to enforce
the foregoing waivers and (ii) acknowledges that it has been induced to enter
into this Agreement or the Loan Documents, as applicable, by, among other
things, the mutual waivers and certifications herein.
(b) THE BORROWERS AND THE BANK HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT
OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM OR ACTION IN ANY WAY, INVOLVING OR ARISING, DIRECTLY OR INDIRECTLY, OUT
OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP
ESTABLISHED THEREUNDER.
39
<PAGE>
SECTION 9.06. Acknowledgments. The Borrowers hereby acknowledge that:
(a) each has been advised by counsel in the negotiation, execution and
delivery of this Agreement, the Notes and the other Loan Documents;
(b) the Bank does not have any fiduciary relationship with the
Borrowers and the relationship between the Bank, on one hand, and the
Borrowers, on the other hand, is solely that of debtor and creditor: and
(c) no joint venture exists between the Borrowers and the Bank.
SECTION 9.07. Consent to Jurisdiction. (a) The Borrowers hereby irrevocably
submit to the non-exclusive jurisdiction of any United States federal or New
York state court sitting in Buffalo, New York, in any action or proceedings
arising out of or relating to any Loan Documents and the Borrowers hereby
irrevocably agree that all claims in respect of such action or proceeding may be
heard and determined in any such court and irrevocably waives any objection it
may now or hereafter have as to the venue of any such action or proceeding
brought in such a court or the fact that such court is an inconvenient forum.
(b) The Borrowers irrevocably and unconditionally consent to the service or
process in any such action or proceeding in any of the aforesaid courts by the
mailing of copies of such process to it by certified or registered mail at its
address specified in Subsection 9.01
SECTION 9.08. Extension of Maturity. Except as otherwise expressly provided
herein, whenever a payment to be made hereunder shall fall due and payable on
any day other than a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time shall be included in
computing interest.
SECTION 9.09. Modification of Agreement. No modification, amendment or
waiver of any provision of this Agreement or the Notes, nor consent to any
departure by the Borrowers or any of their Subsidiaries therefrom shall in any
event be effective unless the same shall be in writing and signed by the Bank
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice to or demand on the Borrowers or
any of their Subsidiaries in any case shall entitle the Borrowers or any of
their Subsidiaries, as the case may be, to any other or further notice or demand
in the same, similar or other circumstance.
SECTION 9.10. Participations and Assignments. (a) Neither Borrower may
assign or transfer any of its interests under this Agreement, the Notes or the
Loan Documents.
(b) The Bank reserves the right to grant participations in or to sell and
assign its rights, duties or obligations with respect to the Loans or the
Commitment to such banks, lending institutions or other parties as it may
choose, including, without limitation, any Federal Reserve Bank in
40
<PAGE>
accordance with applicable law and without the consent of the Borrowers, which
consent is deemed to be granted.
SECTION 9.11. Reinstatement; Certain Payments. If claim is ever made upon
the Bank for repayment or recovery of any amount or amounts received by the Bank
in payment or on account of any of the obligations under this Agreement, the
Bank shall give prompt notice of such claim to the Borrower involved, and if the
Bank repays all or part of said amount by reason of (i) any judgment, decree or
order of any court or administrative body having jurisdiction over the Bank or
any of its property, or (ii) any settlement or compromise of any such claim
effected by the Bank with any such claimant, then and in such event such
Borrower agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon such Borrower notwithstanding the cancellation of the
Notes or other instrument evidencing the obligations under this Agreement or the
termination of this Agreement, and such Borrower shall be and remain liable to
the Bank hereunder for the amount so repaid or recovered to the same extent as
if such amount had never originally been received by the Bank.
SECTION 9.12. Right of Setoff. In addition to any rights and remedies of
the Bank provided by law, the Bank is hereby authorized at any time and from
time to time, without prior notice to the Borrowers (any such notice being
expressly waived by the Borrowers) to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by the Bank to or for the credit or the account of the Borrowers against any of
and all the obligations of the Borrowers now and hereafter existing under this
Agreement and the Note held by the Bank, irrespective of whether or not the Bank
shall have made any demand under this Agreement or the Note and although such
obligations may be in any currency, direct or indirect, absolute or contingent,
matured or unmatured. The Bank agrees to promptly notify the Borrowers after any
such setoff and application made by the Bank, but the failure to give such
notice shall not affect the validity of such setoff and application. The rights
of the Bank under this Section are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which the Bank may have.
SECTION 9.13. Severability. In case any one or more of the provisions
contained in this Agreement or in the Notes should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby.
SECTION 9.14. Counterparts. This Agreement 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 instrument.
41
<PAGE>
SECTION 9.15. Entire Agreement; Cumulative Remedies.
(a) This Agreement and the other Loan Documents constitute the entire
agreement among the parties hereto and thereto as to the subject matter hereof
and thereof and supersede any previous agreement, oral or written, as to such
subject matter.
(b) The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 9.16. Headings. Section headings used herein are for convenience of
reference only and are not to affect the construction of or be taken into
consideration in interpreting this Agreement.
SECTION 9.17. Exhibits and Schedules. Exhibits A, A-1, B and C and
Schedules I through IV shall constitute an integral part of this Agreement.
IN WITNESS WHEREOF, the Borrowers and the Bank have caused this Agreement
to be duly executed by their duly authorized officers, all of the day and year
first above written.
RAYMOND LEASING CORPORATION
By: /s/ Patrick J. McManus
--------------------------------
Patrick J. McManus
President and General Manager
THE RAYMOND CORPORATION
By: /s/ William B. Lynn
--------------------------------
William B. Lynn
Executive Vice President
MANUFACTURERS AND TRADERS
TRUST COMPANY
By: /s/ Geoffrey R. Fenn
--------------------------------
Geoffrey R. Fenn Vice President
42
<PAGE>
SCHEDULE I
Notice of Borrowing (or Conversions)
------------------------------------
To: Dated: ____________, 199_
Reference is made to the Revolving Credit and Term Loan Agreement dated
September 22, 1995 (the "Agreement") between MANUFACTURERS AND TRADERS TRUST
COMPANY (the "Bank") and THE RAYMOND CORPORATION and RAYMOND LEASING
CORPORATION. Unless otherwise defined herein, the terms defined in the Agreement
are used herein as so defined.
The undersigned, an authorized officer of ___________ (the "Borrower")
hereby requests that a Loan be made to Borrower and certifies in accordance with
the provisions of Section 2.01 or 2.04 of the Agreement as follows:
I. The requested date for the funding of such Loan is.
The amount of the proposed Loan is $__________ and the outstanding balances
of all Loans, after giving effect to the proposed Loan, will be as follows,
which sums are and will be owed to the Bank without any offsets or defenses
whatsoever:
A. Loans under Section 2.01 made by Bank:
Borrower Balance
-------- -------
The Raymond Corporation $_____________
Raymond Leasing Corporation $_____________
Total $_____________
B. Loans made under Section 2.04 made by Bank:
Borrower Balance
-------- -------
The Raymond Corporation $_____________
Raymond Leasing Corporation $_____________
Total $_____________
2. The Borrower hereby elects in accordance with Section 2.03, 2.07, 2.08
or 2.10 of the Agreement, that____________________ of the Loan being requested
shall be a Rate ___________ Loan.
<PAGE>
3. The amount requested should be credited to checking account number
___________ which is currently maintained with your Bank. (Not to be completed
in cases of conversion. Instead, conversions should read, "The amount requested
to be converted is $__________.)
4. No Default or Event of Default has occurred or would result from such
Loan.
5. No material adverse change has occurred in the condition of the Borrower
which would substantially impair the Borrower's ability to carry on its
business.
6. The representations and warranties contained in Article III of the
Agreement are true and correct on and as of the date of this Certificate, and
will be true and correct on and as of the date of the requested Loan, as though
made on and as of such dates. With respect to Section 3.03, all additional
borrowings and repayments under existing credit arrangements have been
adequately reflected in Borrower's financial statements. With respect to Section
3.12, there have been no material developments which increase Borrower's
environmental exposure.
THE RAYMOND CORPORATION
or RAYMOND LEASING
CORPORATION, as appropriate
By:_______________________
Title:
<PAGE>
SCHEDULE II
SUBSIDIARIES OF THE RAYMOND CORPORATION (a)
-------------------------------------------
Percentage of State or Other
Voting Securities Jurisdiction in
Owned Which Organized
----------------- --------------
Corporacion Raymond de Mexico, S.A. de C.V. 100 Mexico
Dockstocker Corporation 100 New York
(Subsidiary of Raymond Sales Corporation)
Heubel Material Handling, Inc. 94 Missouri
(Subsidiary of Raymond Sales Corporation)
The Raymond Export Corporation 100 U.S. Virgin Islands
R.H.E. Ltd. 100 Canada
Raymond Handling Technologies, Inc. 100 New Jersey
(Subsidiary of Raymond Sales Corporation)
Raymond Industrial Equipment. Limited 100 Canada
(Subsidiary of R.H.E. Ltd.)
Raymond Leasing Corporation 100 Delaware
Raymond Production Systems Corporation 100 California
Raymond Rental Corporation 100 New York
(Subsidiary of Raymond Leasing Corporation)
Raymond Sales Corporation 100 New York
Raymond Transportation Corporation 100 New York
Ready & Waiting, Inc. 100 Delaware
(Subsidiary of Raymond Leasing Corporation)
Ready & Waiting II, Inc. (1995) 100 Delaware
(Subsidiary of Raymond Leasing Corporation)
Robert Abel & Co., Inc. 90 Massachusetts
(Subsidiary of Raymond Sales Corporation)
Welch Equipment Company, Inc. 100 Colorado
(Subsidiary of Raymond Sales Corporation)
(a) Unless otherwise noted, the Registrant is the Parent of the above listed
company.
<PAGE>
SCHEDULE III
No Default Certificate
----------------------
To: Manufacturers and Traders Trust Company
Re: Revolving Credit and Term Loan Agreement with The Raymond Corporation and
Raymond Leasing Corporation.
Pursuant to the provisions of the Revolving Credit and Term Loan Agreement
dated September 22, 1995 between Manufacturers and Traders Trust Company and The
Raymond Corporation and Raymond leasing Corporation, the undersigned hereby
certifies as the Chief Financial Officer of The Raymond Corporation and Raymond
Leasing Corporation as follows:
1. No Event of Default specified in Section 8 of the Revolving Credit and
Term Loan Agreement referred to above (the "Agreement") and no event which,
pursuant to the provisions of Section 8 of the Agreement would, with a lapse of
time and/or notice specified therein, become such an Event of Default, has
occurred or is continuing;
2. No material adverse change has occurred in the financial condition of
either The Raymond Corporation or Raymond Leasing Corporation which would
impair the ability of either Corporation to carry on its business; and
3. The representations and warranties contained in Section 3 of the
Agreement continue to be true and correct.
THE RAYMOND CORPORATION
By:________________________
Chief Financial Officer
RAYMOND LEASING CORPORATION
By:________________________
Chief Financial Officer
<PAGE>
SCHEDULE IV
List of Liens of Raymond
------------------------
James B. Hassett as Trustee for CIS Corporation
re: Miscellaneous computer equipment
Taylor-Bolane Associates, Inc.
re: Software package used at the Parts Division
Cheyenne Leasing Company
re: Computer equipment used at the Parts Division
List of Liens of Raymond Leasing
--------------------------------
Intersoll-Rand Company d/b/a Ingersoll-Rand Air Center
re: Equipment used in the Raymond Leasing Shop in Syracuse (12 monthly
payments for refrigerated air dryer).
<PAGE>
EXHIBIT A
REVOLVING CREDIT NOTE
$10,000,000 Buffalo, New York
September 22, 1995
FOR VALUE RECEIVED, the undersigned, THE RAYMOND CORPORATION, a New York
corporation (the "Borrower"), DOES HEREBY PROMISE to pay to the order of
MANUFACTURERS AND TRADERS TRUST COMPANY (the "Bank"), at the office of the Bank
at One Fountain Plaza, Buffalo, New York 14203, on the Termination Date as
defined in the Revolving Credit and Term Loan Agreement (the "Agreement") dated
as of September 22, 1995, among the Borrower, Raymond Leasing Corporation and
the Bank, in lawful money of the United States of America, in immediately
available funds, the principal amount of Ten Million Dollars ($10,000,000) or,
if less than such principal amount, the aggregate unpaid principal amount of all
Revolving Credit Loans (as defined in Section 2.01 of the Agreement) made by the
Bank to the Borrower pursuant to the Agreement as shown on the grid schedules
annexed hereto, and to pay interest from the date hereof on the unpaid principal
amount hereof, in like money, at said office, on the dates and at the rates
selected in accordance with Article II of the Agreement and, upon default, on
demand from time to time, on any overdue principal and on any overdue charge or
fee, and, to the extent permitted by law, on any overdue interest, for each day
from the due date thereof (by acceleration or otherwise) until such sum is paid
in full, at the rate in effect from time to time as described in the Agreement.
The obligations of the Borrower in regard to payment of the Loans hereunder
are several not joint with the Raymond Leasing Corporation, it being expressly
agreed and understood that Borrower shall be liable to the Bank for only the
Loans and interest accruing thereon made to such Borrower. Notwithstanding the
foregoing, each Borrower shall be jointly and severally liable for any
commitment or facility fees, increased costs, indemnities and expenses under the
Agreement and for the performance of the terms and conditions of this Agreement.
Loans incurred by Raymond Leasing under the Agreement shall reduce amounts
available under the Agreement and this Note for borrowings by Raymond.
This Revolving Credit Note is the Revolving Credit Note referred to in
Section 2.02 of the Agreement, and is subject to prepayment and acceleration of
maturity as set forth in the Agreement. All terms defined in the Agreement are
used herein with their defined meanings unless otherwise provided.
All Revolving Credit Loans made by the Bank to the Borrower under the
Agreement and the applicable rates and Interest Periods (as defined in the
Agreement) together with all payments or prepayments of principal shall be
recorded by the Bank and endorsed on the grid schedule or grid schedules
attached hereto and hereby made a part of this Revolving Credit Note.
This Note shall be governed by and construed in accordance with the laws of
the State of New York and any applicable laws of the United States of America.
THE RAYMOND CORPORATION
By:____________________
Title:
<PAGE>
EXHIBIT A-1
REVOLVING CREDIT NOTE
$10,000,000 Buffalo, New York
September 22, 1995
FOR VALUE RECEIVED, the undersigned, RAYMOND LEASING CORPORATION, a
Delaware corporation (the "Borrower"), DOES HEREBY PROMISE to pay to the order
of MANUFACTURERS AND TRADERS TRUST COMPANY (the "Bank"), at the office of the
Bank at One Fountain Plaza, Buffalo, New York 14203, on the Termination Date as
defined in the Revolving Credit and Term Loan Agreement (the "Agreement") dated
as of September 22, 1995, among the Borrower, The Raymond Corporation and the
Bank, in lawful money of the United States of America, in immediately available
funds, the principal amount of Ten Million Dollars ($10,000,000) or, if less
than such principal amount, the aggregate unpaid principal amount of all
Revolving Credit Loans (as defined in Section 2.01 of the Agreement) made by the
Bank to the Borrower pursuant to the Agreement as shown on the grid schedules
annexed hereto, and to pay interest from the date hereof on the unpaid principal
amount hereof, in like money, at said office, on the dates and at the rates
selected in accordance with Article II of the Agreement and, upon default, on
demand from time to time, on any overdue principal and on any overdue charge or
fee, and, to the extent permitted by law, on any overdue interest, for each day
from the due date thereof (by acceleration or otherwise) until such sum is paid
in full, at the rate in effect from time to time as described in the Agreement.
The obligations of the Borrowers in regard to payment of the Loans
hereunder are several not joint with the Raymond Corporation, it being expressly
agreed and understood that each Borrower shall be liable to the Bank for only
the Loans and interest accruing thereon made to such Borrower. Notwithstanding
the foregoing, each Borrower shall be jointly and severally liable for any
commitment or facility fees, increased costs, indemnities and expenses under the
Agreement and for the performance of the terms and conditions of this Agreement.
Loans incurred by The Raymond Corporation under the Agreement shall reduce
amounts available under the Agreement and this Note for borrowings by Raymond
Leasing.
This Revolving Credit Note is the Revolving Credit Note referred to in
Section 2.02 of the Agreement, and is subject to prepayment and acceleration of
maturity as set forth in the Agreement. All terms defined in the Agreement are
used herein with their defined meanings unless otherwise provided.
All Revolving Credit Loans made by the Bank to the Borrower under the
Agreement and the applicable rates and Interest Periods (as defined in the
Agreement) together with all payments or prepayments of principal shall be
recorded by the Bank and endorsed on the grid schedule or grid schedules
attached hereto and hereby made a part of this Revolving Credit Note.
This Note shall be governed by and construed in accordance with the laws of
the State of New York and any applicable laws of the United States of America.
RAYMOND LEASING CORPORATION
By:________________________
Title:
<PAGE>
EXHIBIT B
TERM NOTE
$ Buffalo, New York
____________, 19__
FOR VALUE RECEIVED, the undersigned ______________________________, a
_______________ corporation (the "Borrower"), DOES HEREBY PROMISE to pay to the
order of MANUFACTURERS AND TRADERS TRUST COMPANY (the "Bank"), at the office of
the Bank at One Fountain Plaza, Buffalo, New York 14203, in lawful money of the
United States of America, in immediately available funds, the principal amount
of _________________________ ($__________) in ____ equal consecutive quarterly
calendar installments payable on the last day of each calendar quarter
commencing on __________ and on the dates described in the Revolving Credit and
Term Loan Agreement ("Agreement") dated as of September 22, 1995, between The
Raymond Corporation, Raymond Leasing Corporation and the Bank, and to pay
interest from the date hereof on the unpaid principal amount hereof, in like
money, at said office, on the dates and at the rates selected in accordance with
Article II of the Agreement and, upon default, on demand from time to time, on
any overdue principal and on any overdue charge or fee, and, to the extent
permitted by law, on any overdue interest, for each day from the due date
thereof (by acceleration or otherwise) until such sum is paid in full, at the
rate in effect from time to time as described in the Agreement.
This Term Note is the Term Note referred to in Section 2.05 of the
Agreement, and is subject to prepayment and acceleration of maturity as set
forth in the Agreement. All terms defined in the Agreement are used herein with
their defined meanings unless otherwise provided.
The Term Loan made by the Bank to the Borrower under the Agreement and the
applicable rates and Interest Periods (as defined in the Agreement) together
with all payments or prepayments of principal shall be recorded by the Bank and
endorsed on the grid schedule or grid schedules attached hereto and hereby made
a part of this Term Note.
This Note shall be governed by and construed in accordance with the laws of
the State of New York and any applicable laws of the United States of America.
[BORROWER]
By:_______________________
Title:
<PAGE>
GRID SCHEDULE
-------------
DATE TYPE INTEREST AMOUNT
- ---- ---- -------- ------
MATURITY
- --------
<PAGE>
LOGO
CoreStates
- -------------------------------------------------------------------------------
CREDIT AGREEMENT
$10,000,000
between
THE RAYMOND CORPORATION
and
RAYMOND LEASING CORPORATION
and
CORESTATES BANK, N.A.
November 27, 1995
- --------------------------------------------------------------------------------
<PAGE>
Table of Contents
1. Definitions..................................................... 1
1.1 Definitions............................................... 1
1.2 Accounting Terms/Other Definitional Provisions............ 9
2. Loans........................................................... 9
2.1 Revolving Credit Loans.................................... 9
2.2 Revolving Credit Note..................................... 10
2.3 Interest on Revolving Credit Loans........................ 10
2.4 Term Loan................................................. 10
2.5 Term Note................................................. 11
2.6 Interest on Term Loans.................................... 11
2.7 Interest on "As Offered" Fixed Rate Loans................. 11
2.8 Interest on Prime Rate Loans.............................. 11
2.9 Intentionally Deleted..................................... 11
2.10 Interest on Eurodollar Rate Loans......................... 11
2.11 Continuation and Conversion of Loans...................... 11
2.12 Prepayment of Loans....................................... 12
2.13 Reduction or Termination of the Commitment................ 13
2.14 Fees...................................................... 13
(a) Commitment Fee........................................ 13
(b) Closing Fee........................................... 13
2.15 Default Rate of Interest; Late Payment Penalty............ 13
2.16 Application of Payments and Computations.................. 14
2.17 Funds; Manner of Payment.................................. 14
2.18 Capital Adequacy.......................................... 14
2.19 Inability to Determine Rate............................... 14
2.20 Other Events.............................................. 15
2.21 Change in Legality........................................ 16
3. Representations and Warranties.................................. 16
3.1 Organization, Corporate Powers, etc....................... 16
3.2 Corporate and Governmental Authorization; No Contravention 17
3.3 Financial Condition....................................... 17
3.4 Taxes..................................................... 17
3.5 Title to Properties....................................... 18
3.6 Litigation................................................ 18
3.7 Agreements................................................ 18
3.8 ERISA..................................................... 18
3.9 Proceeds of the Loan...................................... 18
3.10 Federal Reserve Regulations............................... 19
3.11 Subsidiaries.............................................. 19
3.12 Environmental Matters..................................... 19
3.13 Not an Investment Company................................. 20
-i-
<PAGE>
3.14 Material Change..................................................... 20
3.15 Governmental Approval............................................... 20
3.16 Full Disclosure..................................................... 20
3.17 Binding Effect...................................................... 20
3.18 Trademarks and Licenses, etc........................................ 20
4. Conditions of Lending..................................................... 21
4.1 Representations and Warranties; No Default............................21
4.2 Opinion of Counsel................................................... 21
4.3 No Default Certificate; Deemed Representation........................ 21
4.4 Supporting Documents................................................. 21
4.5 Other Information, Documentation..................................... 21
5. Affirmative Covenants..................................................... 22
5.1 Corporate Existence, Properties, Insurance, etc..................... 22
5.2 Payment of Indebtedness, Taxes, etc................................. 22
5.3 Reporting Requirements.............................................. 22
5.4 Access to Premises and Records...................................... 23
5.5 Notice of Adverse Change............................................ 24
5.6 Notice of Default................................................... 24
5.7 ERISA............................................................... 24
5.8 Compliance with Contractual Obligations and Requirements of Law;
Applicable Laws..................................................... 24
5.9 Subsidiaries........................................................ 24
5.10 Environmental Laws.................................................. 25
5.11 Voting of Subsidiaries' Shares...................................... 25
5.12 Restrictive Covenants in Other Agreements........................... 25
6. Negative Covenants........................................................ 25
6.1 Liens............................................................... 25
6.2 Guarantees, Etc..................................................... 26
6.3 Sale of Notes....................................................... 26
6.4 Investments......................................................... 26
6.5 Change in Business.................................................. 27
6.6 Dividends........................................................... 27
6.7 Subordinated Debt................................................... 27
6.8 Accounting Policies and Procedures.................................. 28
6.9 Stock of Subsidiaries, Etc.......................................... 28
6.10 Transactions with Affiliates........................................ 28
6.11 Merger or Consolidation or Sales of Assets.................... 28
6.12 Restrictions on Leases of Equipment................................. 28
6.13 The Raymond Corporation Subsidiaries................................ 28
7. Financial Covenants - Raymond Corporation................................. 28
7.1 Minimum Working Capital............................................. 29
7.2 Minimum Tangible Net Worth.......................................... 29
7.3 Leverage Ratio...................................................... 29
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7.4 Interest Coverage ............................................... 29
7.5 Loss Quarters.................................................... 29
7A. Financial Covenants - Raymond Leasing Corporation................... 29
7A.1. Minimum Tangible Net Worth.................................... 29
7A.2. Leverage Ratio ............................................... 29
7A.3. Interest Coverage............................................. 29
7A.4. Loss Quarter.................................................. 29
7A.5. Working Capital............................................... 29
7B. Financial Covenants - Consolidated................................. 29
7B.l. Minimum Tangible Net Worth..................................... 30
7B.2. Leverage Ratio................................................. 30
7B.3. Interest Coverage.............................................. 30
7B.4. Consolidated Losses............................................ 30
8. Events of Default.................................................... 30
8.1 Events of Default.............................................. 30
9. Miscellaneous....................................................... 32
9.1 Notices........................................................ 32
9.2 Survival of Agreement; Successors and Assigns.................. 33
9.3 Expenses of CoreStates; Indemnification........................ 33
9.4 Applicable Law................................................. 34
9.5 Waiver of Rights by CoreStates; Waiver of Jury Trial, etc...... 34
9.6 Acknowledgments................................................ 35
9.7 Consent to Jurisdiction........................................ 35
9.8 Extension of Maturity.......................................... 35
9.9 Modification of Agreement...................................... 35
9.10 Participations and Assignments............................... 35
9.11 Reinstatement; Certain Payments................................ 35
9.12 Right of Setoff................................................ 36
9.13 Severability................................................... 36
9.14 Counterparts................................................... 36
9.15 Entire Agreement; Cumulative Remedies.......................... 36
9.16 Headings....................................................... 36
9.17 Exhibits and Schedules......................................... 37
- -------------------------------------------------------
SCHEDULE 1 NOTICE OF BORROWING (OR CONVERSIONS)
SCHEDULE 2 SUBSIDIARIES AND AFFILIATES
SCHEDULE 3 No DEFAULT CERTIFICATE
SCHEDULE 4 LIENS
EXHIBIT A FORM OF REVOLVING CREDIT NOTE
EXHIBIT B FORM OF TERM NOTE
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Credit Agreement
Credit Agreement dated November 27, 1995 (the "AGREEMENT") between THE
RAYMOND CORPORATION, a New York corporation ("RAYMOND") and RAYMOND LEASING
CORPORATION, a Delaware corporation ("RAYMOND LEASING") and CORESTATES BANK,
N.A., a national banking association ("CORESTATES", "CORESTATES BANK" or the
"BANK").
Preliminary Statement
WHEREAS, Raymond and Raymond Leasing have requested that (a)
CoreStates extend credit to them severally on a revolving credit basis at any
time and from time to time prior to the Termination Date (as defined below) by
making revolving credit loans to each of them individually but not in excess of
$10,000,000, in the aggregate at any time outstanding, (b) they have the option
from time to time up to and including the Termination Date to convert the
outstandings under the revolving credit loan to term loans as provided herein.
WHEREAS, the proceeds of the revolving credit loans and the term
loan(s) shall be used by Raymond and Raymond Leasing for general corporate
working capital purposes and to fund growth in Raymond Leasing's lease
portfolio.
WHEREAS, CoreStates is willing to extend such credit to Raymond and
Raymond Leasing, subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing the parties hereto
agree to the following:
1. Definitions
1.1 Definitions. As used herein, the terms defined in the preliminary
statement shall have the same meaning when used in this Agreement and the
following words and terms shall have the following meanings:
"AS OFFERED" FIXED RATE means the fixed rate of interest per annum
which CoreStates, in its sole discretion, may quote to Raymond or Raymond
Leasing on any day that it may request such a rate for the purpose of fixing the
rate of a Term Loan over any term agreed to by CoreStates hereunder. If
CoreStates shall elect not to make available a quote for an "As Offered" Fixed
Rate on the day of the request, the request may be resubmitted on such later
date as CoreStates shall elect to make available such a quote. Raymond or
Raymond Leasing may request an "As Offered" Fixed Rate Loan on the basis of such
quote.
"As OFFERED FIXED RATE LOAN shall mean a Loan bearing interest in
accordance with Section 2.7 of this Agreement.
"ADJUSTED EURODOLLAR RATE" shall mean, with respect to any
Eurodollar Rate Loan for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the product
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of (i) the Eurodollar Rate in effect for such Interest Period and (ii)
Eurodollar Reserves. For the purposes hereof, "EURODOLLAR RATE" shall mean,
for any Interest Period, the rate (rounded upwards, if necessary to the next
1/16 of 1%) at which dollar deposits approximately equal to the principal
amount of the proposed Eurodollar Rate Loan and for a duration equal to the
applicable proposed Interest Period are offered to CoreStates in immediately
available funds in the London Interbank Market for eurodollars on or about
eleven o'clock (11:00) a.m. London time two London Business Days prior to the
commencement of the requested Interest Period in an amount substantially equal
to the outstanding principal portion of the Eurodollar Rate Loan requested for
a maturity of comparable duration to the Interest Period. For purposes hereof,
the term "EURODOLLAR RESERVES" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the
number one minus the applicable statutory reserve requirements for CoreStates
(without duplication, but including, without limitation, basic, supplemental,
marginal or emergency reserves), from time to time in effect under Regulation
D of the Board of Governors of the Federal Reserve System (or any successor)
with respect to eurocurrency funding currently referred to as "EUROCURRENCY
LIABILITIES" in Regulation D. It is agreed that for purposes hereof any amount
bearing interest at the Eurodollar Rate shall be deemed to constitute a
"EUROCURRENCY LIABILITY" as defined in Regulation D and to be subject to the
reserve requirements of Regulation D, without benefit of credit or proration,
exemptions or offsets which might otherwise be available to CoreStates from
time to time under Regulation D.
"AFFILIATE" shall mean any person which directly or indirectly
controls, or is controlled by, or is under common control with, Raymond or
Raymond Leasing or any of Subsidiaries of either of them. The term "CONTROL"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise.
"BORROWING DATE" shall mean, with respect to any Loan, the date on
which such Loan is disbursed to Raymond or Raymond Leasing.
"BUSINESS DAY" shall mean any day not a Saturday, Sunday or legal
holiday, on which CoreStates is open for business in Philadelphia, provided,
however, that when used in connection with determining the Eurodollar Rate, the
term "Business Day" shall also exclude any day on which CoreStates is not open
for dealings in dollar deposits in the London Interbank Market.
"CAPITALIZED LEASE OBLIGATION" shall mean an obligation to pay rent or
other amounts under any lease of (or other arrangement conveying the right to
use) real and/or personal property which obligation is required to be classified
and accounted for as a capital lease on a balance sheet prepared in accordance
with generally accepted accounting principles, and for purposes hereof the
amount of such obligation shall be the capitalized amount thereof determined in
accordance with such principles.
"CHIEF FINANCIAL OFFICER" shall mean the Chief Financial Officer of
Raymond or Raymond Leasing, as applicable.
"CLOSING DATE" shall mean November 27, 1995.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
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"COMMITMENT" shall have the meaning assigned to such term in Section
2.1 hereof. The Commitment shall be deemed permanently terminated on the
Termination Date or such earlier date on which the Commitment shall have been
terminated in accordance herewith.
"COMMONLY CONTROLLED ENTITY" shall mean an entity, whether or not
incorporated, which is under common control with Raymond or Raymond Leasing
within the meaning of Section 4001 of ERISA or is part of a group which includes
Raymond or Raymond Leasing and which is treated as a single employer under
Section 414 of the Code.
"CONSOLIDATED ADJUSTED NET INCOME" for any period shall mean the
consolidated gross revenues for such period less all expenses and other proper
charges (including taxes on income) and extraordinary items of income, but
excluding in any event (to the extent not previously deducted as extraordinary
items of income):
(a) any gains or losses on the sale or other disposition of
investments or fixed or capital assets, and any taxes on such
excluding gains and any tax deductions or credits on accounts of any
such excluded losses;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any corporation, substantially all
the assets of which have been acquired in any manner by Raymond or
Raymond Leasing, as applicable, or any consolidated Subsidiary,
realized by such corporation prior to the date of such acquisition;
(d) net earnings and losses of any corporation with which Raymond
or Raymond Leasing, as applicable, or any Subsidiary shall have
consolidated or which shall have merged into or with Raymond or
Raymond Leasing, as applicable, or a Subsidiary prior to the date of
such consolidation or merger;
(e) net earnings of any business entity in which Raymond or
Raymond Leasing, as applicable, or any consolidated Subsidiary has an
ownership interest unless such net earnings shall have actually been
received by it in the form of cash distributions;
(f) earnings resulting from any reappraisal, revaluation or
write-up of assets;
(g) any gain arising from the acquisition of any securities of
Raymond or Raymond Leasing, as applicable, or any consolidated
Subsidiary; and
(h) any reversal of any contingency reserve, except to the extent
that provision for such contingency reserve shall have been made from
income arising during such period.
"CONSOLIDATED CURRENT ASSETS" shall mean, at any date, the aggregate
amount of all assets of Raymond or Raymond Leasing, as applicable, and its
consolidated Subsidiaries which would be properly classified as current assets
at such date, but excluding deferred assets, all computed as per management
statements prepared on a consistent basis.
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"CONSOLIDATED CURRENT LIABILITIES" shall mean the aggregate amount of
all liabilities of Raymond or Raymond Leasing, as applicable, and its
consolidated Subsidiaries (including tax and other proper accruals) which would
be classified as current liabilities, all computed as per management statements
prepared on a consistent basis.
"CONSOLIDATED INTEREST EXPENSE" shall mean the interest expense of
Raymond or Raymond Leasing, as applicable, and its consolidated Subsidiaries
during such period determined on a consolidated basis in accordance with
generally accepted accounting principles consistently applied, and shall in
any event include, without limitation, (i) the amortization of debt discounts,
(ii) the amortization of all fees payable in connection with the incurrence of
Indebtedness to the extent included in interest expense, (iii) the portion of
any Capitalized Lease Obligation allocable to interest expense, (iv) all fixed
or calculable dividend payments on preferred stock, and (v) payments of
interest expense in kind.
"CONSOLIDATED NET INCOME AVAILABLE FOR INTEREST CHARGES" for any
period shall mean the sum of (i) Consolidated Adjusted Net Income during such
period, plus (to the extent deducted in determining adjusted net income), (ii)
all provisions for any federal, state or other income taxes made during such
period, and (iii) Interest Charges during such period.
"CONSOLIDATED TANGIBLE NET WORTH" shall mean the excess of (i) the
aggregate net book value of the assets (other than patents, patent rights,
trademarks, trade names, treasury stock, franchises, copyrights, licenses,
permits, goodwill and other intangible assets classified as such in accordance
with generally accepted accounting principles and appearing on the balance
sheet as of the Effective Date) after all appropriate adjustments in accordance
with generally accepted accounting principles applied on a consistent basis
(including, without limitation, reserves for doubtful receivables,
obsolescence, depreciation and amortization and excluding the amount of any
write-up or revaluation of any asset) over (ii) Consolidated Total Liabilities,
in each case computed and consolidated in accordance with generally accepted
accounting principles applied on a consistent basis.
"CONSOLIDATED TOTAL UNSUBORDINATED LIABILITIES" shall mean all items
which, in accordance with generally accepted accounting principles applied on a
consistent basis, would properly be included on the liability side of the
balance sheet (other than Subordinated Debt, capital stock, capital surplus and
retained earnings), as of the date on which the amount of Consolidated Total
Unsubordinated Liabilities is to be determined, of Raymond or Raymond Leasing,
as applicable, and its consolidated Subsidiaries computed and consolidated in
accordance with generally accepted accounting principles applied on a consistent
basis.
"CONTRACTUAL OBLIGATION" as to any Person, any provision of any
security issued by such Person or any agreement, instrument or other undertaking
to which such Person is a party or by which it or any of its property is bound.
"DEFAULT" shall mean any of the events specified in Article 8 hereof,
whether or not any requirement for the giving of notice or the lapse of time or
both or any other condition has been satisfied.
"EBIT" shall mean the Consolidated Net Income Available For Interest
Charges.
"EBITDA" shall mean the sum of Consolidated Net Income Available for
Interest Charges, plus depreciation and amortization.
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"ENVIRONMENTAL LAWS" shall mean any and all Federal, State, local or
municipal laws, rules orders, regulations, statutes, ordinances, codes, decrees
or requirements of any Governmental Authority regulating, relating to or
imposing liability or standards of conduct concerning environmental protection
matters, including, without limitation, Hazardous Materials, as now or may
hereafter be in effect.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time. Section references to ERISA are to ERISA, as
in effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA AFFILIATE" shall mean each person (as defined in Section 3(9)
of ERISA) which together with Raymond or Raymond Leasing or a Subsidiary of
either of them would be deemed to be a member of the same "CONTROLLED GROUP"
within the meaning of Section 414(b), (c), (m) and (o) of the Code.
"EURODOLLAR RATE LOAN" shall mean a Loan bearing interest in
accordance with Section 2.10 of this Agreement.
"EURODOLLAR RATE" and "EURODOLLAR RESERVES" shall have the meaning
specified in the definition of "Adjusted Eurodollar Rate".
"EVENT OF DEFAULT" shall mean any Event of Default set forth in
Article 8.
"EXECUTIVE OFFICER" shall mean the Chairman, the President, the Chief
Financial Officer, the Secretary, any Vice-President or the Treasurer of Raymond
or Raymond Leasing, and their respective successors, if any, designated by the
Board of Directors.
"EXPIRATION DATE" shall mean the final payment date of any Term Loan,
whether as stated by its terms or by acceleration hereunder.
"FUNDED DEBT" shall mean, with respect to any Person, all Indebtedness
of such Person for money borrowed which by its terms matures more than one year
from the date as of which such Funded Debt is incurred, and any Debt of such
Person maturing within one year from such date which is renewable or extendable
at the option of the obligor to a date beyond one year from such date
(whether or not theretofore renewed or extended), including any such
indebtedness renewable or extendable at the option of the obligor under, or
payable from the proceeds of other indebtedness which may be incurred pursuant
to, the provisions of any revolving credit agreement or other similar agreement
plus the aggregate amount of guaranties by that Person of all such liabilities
of other Persons.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"HAZARDOUS MATERIALS" includes, without limit, any flammable
explosives, radioactive materials, hazardous materials, hazardous wastes,
hazardous or toxic substances, defined in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C.
Sections 9601, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 9601, et seq.), and in the
regulations adopted and publications promulgated pursuant thereto, or any
other laws.
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"INDEBTEDNESS" shall include all obligations, contingent and
otherwise, which in accordance with generally accepted accounting principles
should be classified upon the obligor's balance sheet as liabilities, but in any
event including liabilities (whether or not they should be so classified upon
such balance sheet) secured by any lien existing on property owned or acquired
subject thereto, whether or not the liability secured thereby shall have been
assumed, and all guarantees.
"INSOLVENCY" shall mean with respect to any Multiemployer Plan, the
condition that such plan is insolvent within the meaning of such term used in
Section 4245 of ERISA.
"INSOLVENT" shall mean the condition of Insolvency.
"INTEREST CHARGES" for any period shall mean all interest and all
amortization of debt discount and expense on all Indebtedness of Raymond or
Raymond Leasing, as applicable, and its Subsidiaries.
"INTEREST PAYMENT DATE" shall mean as to any Eurodollar Rate Loan,
Prime Rate Loan and "As Offered" Fixed Rate Loan: (i) the last day of each
calendar quarter during the term thereof commencing with the calendar quarter
immediately following the date of such Loan, (ii) the last day of the Interest
Period applicable to such Loan, and (iii) the Termination Date or Expiration
Date, as the case may be.
"INTEREST PERIOD" means:
(a) as to any Prime Rate Loan, the period commencing on the date
of such Loan and ending on the date on which Raymond or Raymond
Leasing, as applicable, elects to select a different interest rate
pursuant to this Agreement, and
(b) as to any Eurodollar Rate Loan, the period commencing on the
date of such Loan and ending on the numerically corresponding day (or
if there is no numerically corresponding day, the last day) of the
calendar month that is one, two, three or six months, thereafter, as
Raymond or Raymond Leasing, as applicable, may elect, and
(c) as to any "As Offered" Fixed Rate Loan, the period requested
by Raymond or Raymond Leasing, as applicable, and agreed to by
CoreStates, as available, in respect of such "As Offered" Fixed Rate
Loan and indicating the period over which such Term Loan shall be a
"As Offered" Fixed Rate Loan which at the time of selection shall be
from the Borrowing Date to the Expiration Date of such "As Offered"
Fixed Rate Loan;
provided, however, that (i) if any Interest Period would end on a day which
shall not be a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, with respect to Eurodollar Rate Loans only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the first preceding Business Day and (ii)
no Interest Period may be selected for any Fixed Rate Loan which expires later
than the Termination Date or the Expiration Date, as the case may be and (iii)
if any Interest Period for any Fixed Rate Loan begins prior to any principal
repayment date and would otherwise end after such principal repayment date, the
Interest Period for that portion of the principal amount of such Loan which is
to be repaid by Raymond or Raymond Leasing, as applicable, in accordance
herewith shall terminate on such principal repayment date, and the Interest
Period for the remaining principal of such Loan shall remain unaffected by such
termination notwithstanding the provisions of the preceding clause.
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"LOAN(S)" shall mean a loan by CoreStates to Raymond or Raymond
Leasing pursuant to Article 2 hereof and shall refer to a Prime Rate Loan, "As
Offered" Fixed Rate Loan or Eurodollar Rate Loan, each of which shall be a
"Type" of Loan.
"LOAN DOCUMENTS" shall mean collectively, the Agreement, the Notes,
any agreements or documents referred to in Article 4 hereof and all other
documents, certificates and instruments executed in connection therewith.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise) or
prospects of Raymond or Raymond Leasing, as applicable, and its consolidated
Subsidiaries taken as a whole, (b) the ability of Raymond or Raymond Leasing to
perform its obligations under the Loan Documents, or (c) the validity or
enforceability of any of the Loan Documents or the rights or remedies of
CoreStates hereunder or thereunder.
"MULTIEMPLOYER PLAN" shall mean a Plan which is a Multiemployer Plan
as defined in Section 4001(a)(3) of ERISA.
"NOTE(S)" shall mean the Revolving Credit Note and the Term Note.
"OPERATING AGREEMENT" shall mean the Operating Agreement dated October
10, 1986 between Raymond Leasing and Raymond, as may be amended from time to
time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title 1 of ERISA or any successor thereto.
"PERSON" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"PLAN" shall mean, at any particular time, any employee benefit plan
which is covered by ERISA and in respect of which Raymond, Raymond Leasing,
any Subsidiary of either of them or a Commonly Controlled Entity is (or, if
such plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
PRIME RATE" shall mean the rate of interest per annum announced from
time to time by CoreStates as its prime rate in effect at its principal office
in Philadelphia, PA; each change in the Prime Rate shall be effective on the
date such change is announced.
"RAYMOND WORKING CAPITAL" shall mean the total of Manufacturing
Current Assets, minus Manufacturing Current Liabilities as such terms are, as
reflected on Raymond's consolidated financial statements.
"REPORTABLE EVENT" shall mean any of the events described in Section
4043(b) of ERISA other than those events as to which the twenty day notice
period is waived under Subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
Section 2615.
"REVOLVING CREDIT LOAN" shall mean any Loan to Raymond or Raymond
Leasing pursuant to Section 2.1.
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"REVOLVING CREDIT NOTE" shall mean the promissory note of Raymond or
Raymond Leasing delivered pursuant to Section 2.2.
"SENIOR INDEBTEDNESS" shall mean the Notes and all other Indebtedness
of Raymond or Raymond Leasing for money borrowed, whether outstanding on the
date hereof or hereafter created or incurred, which has not been approved by
CoreStates in writing as being subordinate and junior to the loans, and which is
permitted hereby.
"SINGLE EMPLOYER PLAN" shall mean any plan which is not covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"SHORT TERM INDEBTEDNESS" shall mean Indebtedness for money borrowed
with a maturity of less than 365 days.
"SUBORDINATED DEBT OR INDEBTEDNESS" shall mean all Indebtedness which
is subordinated in right of payment, form and substance satisfactory to
CoreStates to all Indebtedness of Raymond or Raymond Leasing to CoreStates,
including the currently outstanding Raymond 6.50% Convertible Subordinated
Debentures of $57,500,000 due 12/15/2003, which exists in form and substance
satisfactory to CoreStates.
"SUBSIDIARY" means, with respect to any Person, any corporation or
other entity of which at least a majority of the securities or other ownership
interests having ordinary voting power (absolutely or contingently) for the
election of directors or other persons performing similar functions are at the
time owned directly or indirectly by such Person, but excluding Unconsolidated
Investees.
"STATUTORY RESERVES" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the reserve percentages expressed as a decimal
established by the Board of Governors of the Federal Reserve System and any
other banking authority for determining the reserve requirements of CoreStates
in respect of new non-personal negotiable time deposits in dollars of over
$100,000 with maturities approximately equal to the applicable Interest Period,
such reserve requirements including, without limitation, those imposed under
Regulation D of such Board of Governors. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in such percentage.
"TERM LOAN" shall mean the term loan pursuant to Section 2.4 hereof.
"TERM NOTE" shall mean the promissory note of Raymond or Raymond
Leasing delivered pursuant to Section 2.5 hereof.
"TERMINATION DATE" shall mean the earlier of November 27, 1997 or the
date the Commitment may otherwise be terminated in accordance herewith.
"TYPE" shall have the meaning specified in definition of "Loan".
"UNCONSOLIDATED INVESTEES" shall mean any Persons in which either
Raymond or Raymond Leasing has an investment and which does not report its
results on a consolidated basis with Raymond or Raymond Leasing, as applicable.
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"UNFUNDED CURRENT LIABILITY" of any Plan means the amount. if any, by
which the present value of the accrued benefits under the Plan as of the close
of its most recent plan year exceeds the fair market value of the assets
allocable thereto, determined in accordance with Section 412 of the Code.
"WORKING CAPITAL" shall mean the amount by which Consolidated Current
Assets exceed Consolidated Current Liabilities.
1.2 Accounting Terms/Other Definitional Provisions. (a) Except as
otherwise herein specifically provided, each accounting term used herein shall
have the meaning given to it under Generally Accepted Accounting Principles.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" shall mean those generally accepted
accounting principles and practices which are recognized as such by the American
Institute of Certified Public Accountants acting through the Financial
Accounting Standards Board ("FASB") or through other appropriate boards or
committees thereof and which are consistently applied for all periods so as to
properly reflect the financial condition, and the results of operations and
changes in financial position, of Raymond or Raymond Leasing, except that any
accounting principle or practice required to be changed by the FASB (or other
appropriate board or committee of the FASB) in order to continue as a generally
accepted accounting principle or practice may be so changed. Any dispute or
disagreement between Raymond or Raymond Leasing and CoreStates relating to the
determination of Generally Accepted Accounting Principles shall, in the absence
of manifest error, be conclusively resolved for all purposes hereof by the
written opinion with respect thereto, delivered to CoreStates, of independent
accountants selected by Raymond and approved by CoreStates for the purpose of
auditing the periodic financial statements of Raymond and Raymond Leasing.
(b) Meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
2. Loans
2.1 Revolving Credit Loans. (a) Subject to the terms and conditions,
and relying upon the representations and warranties, set forth herein,
CoreStates agrees to make loans (individually a "REVOLVING CREDIT LOAN" and,
collectively, the "REVOLVING CREDIT LOANS") to Raymond and Raymond Leasing at
any time or from time to time on or after the date hereof and until the
earlier of the Termination Date or the date the Commitment shall have been
terminated in accordance with the terms hereof, in an aggregate principal
amount not in excess of $10,000,000 at any time (the "COMMITMENT"). Within the
foregoing limits, Raymond and Raymond Leasing may borrow, hereunder on or
after the date hereof and prior to the Termination Date, repay or reborrow
subject to the terms, provisions and limitations set forth herein. After the
Termination Date, no amounts repaid may be reborrowed. The obligations of
Raymond and Raymond Leasing in regard to payment of the Loans hereunder are
several not joint, it being expressly agreed and understood that Raymond and
Raymond Leasing each shall be liable to CoreStates for only the Loans and
interest accruing thereon made to it. Notwithstanding the foregoing, Raymond
and Raymond Leasing shall be jointly and severally liable for any commitment
or facility fees, increased costs, indemnities and expenses hereunder and
performance of the terms and conditions of this Agreement.
(b) Revolving Credit Loans made by CoreStates on any one day shall be
in any combination of Prime Rate Loans and Eurodollar Rate Loans, provided, that
each Prime Rate Loan shall be in an amount not less than $250,000 and in
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integral multiples of $250,000, and each Eurodollar Rate Loan shall be in an
amount not less than $500,000 and in integral multiples of $100,000.
(c) Each Prime Rate Loan shall be made upon one (1) Business Day's and
each Eurodollar Rate Loan shall be made upon three (3) Business Days', prior
written, telegraphic or facsimile notice from Raymond or Raymond Leasing to
CoreStates. Each such notice (a "NOTICE OF BORROWING") shall be in substantially
the form of Schedule 1 hereto and shall specify (i) the requested date of such
Loan, (ii) whether the Loan is to be a Prime Rate Loan or a Eurodollar Rate
Loan, (iii) the requested Interest Period for such Loan in the case of a
Eurodollar Rate Loan, and (iv) the requested amount of such Loan.
2.2 Revolving Credit Note. The Revolving Credit Loans by CoreStates
shall be evidenced by a promissory note (a "REVOLVING CREDIT NOTE"),
substantially in the form attached hereto as Exhibit A, appropriately
completed by Raymond or Raymond Leasing, as applicable, duly executed and
delivered on behalf of each and payable to the order of CoreStates in the
principal amount equal to the Commitment. The outstanding principal amount of
the Revolving Credit Loans by CoreStates evidenced thereby, plus all interest
accrued thereon and the amount of all costs and expenses then payable
thereunder, as established by CoreStates' books and records, shall be
conclusive absent manifest error. The aggregate unpaid amount of the Revolving
Credit Loans at any time shall be the principal amount owing on the Revolving
Credit Note at such time. Unless Raymond or Raymond Leasing, as applicable,
elects to give a Notice of Conversion as provided in Section 2.4 hereof, the
aggregate principal amount outstanding on the Revolving Credit Note shall be
payable on the Termination Date. All accrued and unpaid interest on the
Revolving Credit Loans shall be payable on each Interest Payment Date and on
the Termination Date (if such date is not an Interest Payment Date); Provided,
however, that if any such day is not a Business Day, such accrued interest, if
any, shall be payable on the next succeeding Business Day with additional
accrued interest until paid.
2.3 Interest on Revolving Credit Loans. Each Revolving Credit Loan
shall bear interest in accordance with Section 2.8, if it is a Prime Rate Loan
and Section 2.10, if it is a Eurodollar Rate Loan.
2.4 Term Loan. At any time and from time to time until the
Termination Date either Raymond or Raymond Leasing may deliver to CoreStates a
request (a "CONVERSION REQUEST") that all or a portion of the then outstanding
principal amount of Revolving Credit Loans made to it be converted to a Term
Loan. CoreStates agrees that, provided no Event of Default exists hereunder,
and upon the simultaneous payment or prepayment, as the case may be, (which
may be from the proceeds of such Term Loan) in full of the principal of and
interest on the Revolving Credit Loans then being converted to such Term Loan
to make a (a "TERM LOAN") to Raymond or Raymond Leasing, as applicable, on the
last day of the Interest Period then in effect for the Revolving Credit Loans
being converted. The Term Loan shall be in the principal amount contained in
the Conversion Request, and may be (subject to availability as provided herein
in the case of Eurodollar Rate Loans and "As Offered" Fixed Rate Loans) in any
combination of Prime Rate Loans, Eurodollar Rate Loans and "As Offered" Fixed
Rate Loans; provided that each Term Loan, shall be in a principal amount of
not less than $1,000,000; and provided, further, that any request for a
conversion to an "As Offered" Fixed Rate Loan may not be for an Interest
Period that is longer than five years or would extend beyond the Expiration
Date (as defined in Section 2.5). CoreStates shall make each Term Loan
hereunder against delivery to it of a Term Note payable to it, as described in
Section 2.5 hereof. The principal amount of any Term Loans made under this
Section when made shall act as a reduction of CoreStates' Commitment to make
any Revolving Credit Loans in such principal amounts, provided, however, that
prior to the Termination Date, at the time of each principal installment
payment pursuant to Section 2.5 hereof such Commitment to make Revolving
Credit Loans shall be deemed reinstated by the amount of such principal
payment.
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2.5 Term Note. Each Term Loan shall be evidenced by a promissory note
("TERM NOTE") substantially in the form attached hereto as Exhibit B,
appropriately completed and duly executed and delivered by Raymond or Raymond
Leasing, as applicable, and payable to the order of CoreStates, dated the
borrowing date and in the principal amount of such Term Loan. If the Term Loan
is requested and made prior to the Termination Date, principal shall payable in
equal consecutive quarterly installments on the last day of each calendar
quarter commencing on the first such to occur after such Term Loan Borrowing
Date with a final payment due on the last day of the period selected at the time
of the request (which may be for any length up to but not exceeding 20 calendar
quarters). If the Term Loan is requested and made on the Termination Date,
principal shall be payable in equal consecutive quarterly installments
commencing on the first such day to occur after such Term Loan Borrowing Date
with a final payment due on the last day of the 20th calendar quarter thereafter
as applicable (the "EXPIRATION DATE"). Each Term Note shall be presumptive
evidence of the Term Loan made by CoreStates Bank, absent manifest error.
2.6 Interest on Term Loans. Each Term Loan shall bear interest in
accordance with Section 2.7, if it is an "As Offered" Fixed Rate Loan, Section
2.8, if it is a Prime Rate Loan, and Section 2.10, if it is a Eurodollar Rate
Loan.
2.7 Interest on "As Offered" Fixed Rate Loans. Raymond or Raymond
Leasing, as applicable, shall pay interest on the unpaid principal amount of
each "As Offered" Fixed Rate Loan from the Borrowing Date of such Loan until the
date such principal amount is due and payable, on each Interest Payment Date for
such Loan at an interest rate per annum equal to the "As Offered" Fixed Rate
applicable to such Loan.
2.8 Interest on Prime Rate Loans. Raymond or Raymond Leasing, as
applicable, shall pay interest on the unpaid principal amount of each Prime Rate
Loan from the Borrowing Date of such Loan until the date such principal amount
is due and payable, on each Interest Payment Date for such Loan at an interest
rate per annum equal to the Prime Rate.
2.9 Intentionally Deleted.
2.10 Interest on Eurodollar Rate Loans. Raymond or Raymond Leasing, as
applicable, shall pay interest on the unpaid principal amount of each Eurodollar
Rate Loan from the Borrowing Date of such Loan until the date such principal
amount is due and payable, on each Interest Payment Date for such Loan at an
interest rate per annum equal to the Adjusted Eurodollar Rate plus 1.00%.
2.11 Continuation and Conversion of Loans. Raymond or Raymond Leasing,
as applicable, shall have the right, at any time on three (3) Business Days'
prior irrevocable written notice to CoreStates, to continue any Prime Rate Loan
or Eurodollar Rate Loan or portion thereof into a subsequent Interest Period, if
applicable, and to convert any Loan or portion thereof into a Loan of a
different Type, subject to the provisions of this Agreement including but not
limited to the selection of Interest Periods in accordance with the definition
thereof and to the following, conditions precedent:
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(a) no Event of Default shall have occurred and be continuing
at the time of such continuation or conversion;
(b) in the case of a continuation of or conversion of a Loan(s),
the aggregate principal amount of Loans continued or converted shall
not be less than $500,000 with respect to Eurodollar Rate Loans and
"As Offered" Fixed Rate Loans and in multiples of $250,000 with
respect to Prime Rate Loans;
(c) each conversion shall be effected by CoreStates by applying
the proceeds of the new Loan to the Loan (or portion thereof) being
converted, and accrued interest on the Loan (or portion thereof) being
converted shall be paid by Raymond or Raymond Leasing, as applicable,
at the time of conversion; and
(d) a Eurodollar Rate Loan may be converted to another Type of
Loan only on the last day of its Interest Period;
(e) each request for a Eurodollar Rate Loan or a continuation
thereof which shall fail to state an applicable Interest Period shall
be deemed to be a request for an Interest Period of one month's
duration;
(f) if the last day of an Interest Period with respect to a Loan
that is to be converted to a Eurodollar Rate Loan or "As Offered"
Fixed Rate Loan is not a Business Day, then such conversion shall be
made on the next succeeding Business Day and during the period from
the last such day of an Interest Period to such succeeding Business
Day such Loan shall bear interest as if it were an Prime Rate Loan;
(g) in the event that Raymond or Raymond Leasing, as applicable,
does not give notice to continue any Eurodollar Rate Loan into a
subsequent Interest Period, it shall be deemed to have requested that
such Loan (unless repaid) be converted to a Prime Rate Loan at the
expiration of the then current Interest Period; and
(h) any conversion of a Revolving Credit Loan into a Term Loan
must also comply with the provisions of Section 2.4 hereof.
2.12 Prepayment of Loans. (a) Subject to the provisions of Sections
2.12(b), 2.17, 2.20 and 2.21 hereof, the Borrower may, by 11 a.m. of the day of
prepayment in the case of a Prime Rate Loan and three (3) Business Days' notice
to CoreStates in the case of a Eurodollar Rate Loan or "As Offered" Fixed Rate
Loan, prepay the outstanding amount of any Loan in whole or in part with accrued
interest to the date of such prepayment on the amount prepaid; provided,
however, that any prepayment of any Eurodollar Rate Loan or "As Offered" Fixed
Rate Loan shall be made on the last day of an Interest Period for such Loan; and
provided, further, that each partial prepayment of any Loan shall be in a
principal amount not less than $500,000 and integral multiples thereof, except
in the case of a Term Loan with a balance of less than $500,000 which may be
prepaid in full. Each prepayment of the Term Loan shall be permanent provided,
however, that prior to the Termination Date, as described in Section 2.4 hereof
such payments shall cause a re-instatement in such amount of CoreStates'
Commitment to make Revolving Credit Loans.
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(b) Raymond and Raymond Leasing, jointly and severally, shall
reimburse CoreStates on demand for any loss, funding cost, expense or loss of
earnings incurred or to be incurred by it in the liquidation and/or reemployment
of the funds released by any prepayment or conversion of any Eurodollar Rate
Loan or "As Offered" Fixed Rate Loan required or permitted by any provision of
this Agreement (including in the case of "As Offered" Fixed Rate Loans the
prepayment premium described in paragraph (d) of this Section), in each case if
such Loan is prepaid or converted other than on the last day of the Interest
Period applicable to such Loan. Raymond or Raymond Leasing, as applicable,
further agrees to reimburse CoreStates on demand for any loss, funding cost,
expense or loss of earnings incurred or to be incurred by CoreStates in the
liquidation and/or reemployment of the funds released by any refusal by Raymond
or Raymond Leasing, as applicable, to accept any requested Eurodollar Rate Loan
or "As Offered" Fixed Rate Loan or any requested continuation thereof or
conversion thereto. If any prepayment hereunder makes it necessary to apply any
principal installment payment on a Note to interest due pursuant to a Eurodollar
Rate Loan or "As Offered" Fixed Rate Loan, with an Interest Period extending
beyond the date of such installment payment, Raymond or Raymond Leasing, as
applicable, shall reimburse CoreStates upon demand for any loss, funding cost,
expense or loss of earnings incurred or to be incurred by CoreStates (determined
in accordance with the immediately preceding sentence and based on whether such
prepayment was voluntary or required) in the liquidation and/or reemployment of
funds realized on such installment payment and applied to such Eurodollar Rate
Loan or "As Offered" Fixed Rate Loan.
(c) Each prepayment of any Loan shall be applied to the installments
thereof in the inverse order of maturity and accompanied by accrued interest on
the amount of such prepayment to the date thereof.
2.13 Reduction or Termination of the Commitment. Raymond and Raymond
Leasing acting jointly shall have the right, upon at least two (2) Business
Days' prior written or telephonic notice (promptly confirmed in writing) to
CoreStates, at any time to terminate or from time to time reduce the Commitment
without premium or penalty; provided, however, that the Commitment may not be
reduced to the extent that following such reduction the unpaid principal of the
Notes would exceed the commitment and provided further that, any acceleration of
the Termination Date shall be accompanied by the payment of Commitment Fee then
accrued hereunder.
2.14 Fees.
(a) Commitment Fee. Raymond and Raymond Leasing, jointly and
severally, agree to pay to CoreStates, in consideration of its Commitment, a
commitment fee ("COMMITMENT FEE") of three-sixteenths (3/16ths) of one percent
per annum on the average daily unused portion of the Commitment (based on a year
of 360 days), payable quarterly commencing on the first day of the second
quarter following the Closing Date.
(b) Closing Fee. Raymond and Raymond Leasing, jointly and severally,
agree to pay to CoreStates a closing fee (the "CLOSING FEE") in the amount of
$12,500 payable on the Closing Date.
2.15 Default Rate of Interest; Late Payment Penalty. (a) Upon the
occurrence of a Default or an Event of Default, the interest rates applicable to
the Loans shall immediately without further action by CoreStates be increased to
2% above the rate(s) of interest then in effect on the Loans and shall be deemed
converted at the end of the then Interest Period to Prime Rate Loans and be
deemed to bear interest at a rate equal to 2% above the Prime Rate until paid in
full.
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(b) Raymond and Raymond Leasing, as applicable, also agree to pay a
late charge on any principal and/or interest payments not paid when due at a
fluctuating interest rate per annum equal to 2% above the Prime Rate calculated
upon the amount due until the date of payment.
2.16 Application of Payments and Computations. All computations of the
"As Offered" Fixed Rate, Prime Rate and Eurodollar Rate and of fees, overdue
payment interest charges and penalties hereunder shall be made by CoreStates on
the basis of a year of 360 days, for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest is payable.
2.17 Funds, Manner of Payment. Each Loan and each payment and
prepayment of principal and interest on the Notes shall be made in federal or
other immediately available funds without set-off or counterclaim to CoreStates.
Whenever any payment to be made hereunder or under any Note shall be stated to
be due, or whenever the last day of any Interest Period would otherwise occur on
a day other than a Business Day, such payment shall be made and the last day of
such Interest Period shall occur, on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment
of interest or fees, as the case may be. Raymond and Raymond Leasing each hereby
authorizes CoreStates to charge its accounts at CoreStates Bank, as applicable,
for all principal and interest payments and any fees due hereunder.
2.18 Capital Adequacy. If CoreStates shall have determined that,
after the date hereof, the adoption of any applicable 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 CoreStates (or any
lending office of CoreStates) or CoreStates' 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 CoreStates' capital or on
the capital of CoreStates' holding company, if any, as a consequence of its
obligations hereunder to a level below that which CoreStates or CoreStates'
holding company could have achieved but for such adoption, change, compliance
or directive (taking into consideration CoreStates' policies and the policies
of CoreStates' holding company with respect to capital adequacy) by an amount
deemed by CoreStates to be material, then from tine to time Raymond and
Raymond Leasing, jointly and severally, shall pay to CoreStates such
additional amount or amounts as will compensate CoreStates or CoreStates'
holding company for any such reduction suffered.
2.19 Inability to Determine Rate. In the event, and on each occasion,
that on the day two Business Days prior to the commencement of any Interest
Period for a Eurodollar Rate Loan, CoreStates shall have determined (which
determination shall, in the absent of manifest error, be conclusive and binding
upon Raymond and Raymond Leasing) that such rate will not accurately reflect the
cost to CoreStates of making or funding the principal amount of a Eurodollar
Rate Loan during such Interest Period, or that reasonable means do not exist for
ascertaining the rate on the Eurodollar Rate Loan, CoreStates shall, as soon as
practicable thereafter, give written, telegraphic, telephonic or facsimile
notice of such determination to Raymond or Raymond Leasing, as applicable, and
any request by Raymond or Raymond Leasing for a Eurodollar Rate Loan conversion
or continuation of a Eurodollar Rate Loan shall be deemed a request for a Prime
Rate Loan. After such notice shall have been given, and until the circumstances
giving rise to such notice no longer exist, each request for a Eurodollar Rate
Loan shall be deemed to be a request for a Prime Rate Loan.
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2.20 Other Events. (a) In the event that any enactment of or change
after the date hereof in applicable law, regulation. condition, directive or
interpretation thereof (including any request, guideline or policy whether or
not having the force of law and including, without limitation, Regulation D
promulgated by the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect) by any authority charged with the
administration or interpretation thereof:
(i) subjects CoreStates to any tax with respect to the Loans
hereunder or changes the basis of taxation of payment to CoreStates of
principal of or interest on any Loan or any commitment hereunder or
any other amounts payable hereunder (other than any tax measured by or
based upon the overall net income of CoreStates or any branch or
office thereof, imposed by the United States of America or by any
other jurisdiction in which CoreStates is qualified to do business or
any political subdivision or taxing authority therein); or
(ii) imposes, modifies or deems applicable any reserve or
deposit requirements against any assets held by, deposits with or for
the account of, or loans or commitments by, an office of CoreStates in
connection with payments by CoreStates hereunder; or
(iii) imposes upon CoreStates or the London Interbank Market any
other condition with respect to any amount paid or payable to or by
CoreStates pursuant to this Agreement;
and the result of any of the foregoing is to increase the cost to CoreStates of
making the payment or maintaining its Commitment and any Term Loan or to reduce
the amount of the payment receivable by CoreStates hereunder or to require
CoreStates to make the payment on or calculated by reference to the gross amount
of the sum received by it pursuant hereto, in each case by an amount which
CoreStates in its reasonable judgment deems material, then:
(A) CoreStates shall promptly notify Raymond or Raymond Leasing
as applicable, in writing of the happening of such event;
(B) CoreStates shall promptly deliver to Raymond or Raymond
Leasing, as applicable, a certificate stating the change which has
occurred or the reserve requirements or other conditions which have
been imposed on CoreStates or the request, direction or requirement
with which it has complied, together with the date thereof, the amount
of such increased cost, reduction or payment and the way in which such
amount has been calculated; and
(C) Raymond and Raymond Leasing, jointly and severally, agree to
pay to CoreStates, within 30 days after delivery of the certificate
referred to in clause (B) above, such an amount or amounts as will
compensate CoreStates for such additional cost, reduction or payment.
CoreStates agrees to designate a different office of CoreStates as its lending
office for Eurodollar Rate Loans if the designation would avoid or reduce any
amount payable by Raymond and Raymond Leasing to CoreStates pursuant to this
paragraph (a); provided, however, that such designation need not be made if it
would result in any additional costs, expenses or risks to CoreStates that are
not reimbursed by Raymond or Raymond Leasing, as applicable, pursuant hereto or
would be in any other respect prejudicial to CoreStates. If CoreStates makes a
demand for compensation pursuant to this paragraph (a), Raymond or Raymond
Leasing may at any time, upon at least three Business Days' prior written or
telegraphic notice to CoreStates either (i) repay in full any outstanding
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Eurodollar Rate Loan or "As Offered" Fixed Rate Loan, together with accrued
interest thereon to the date of prepayment or (ii) convert such Loan to a Loan
of a different Type, notwithstanding the provisions of Section 2.12(b).
(b) Failure on the part of CoreStates to demand compensation under
paragraph (a) above on any one occasion shall not constitute a waiver of its
right to demand such compensation on any other occasion and failure on the part
of CoreStates to deliver any certificate in a timely manner shall not in any way
reduce any obligations of Raymond and Raymond Leasing to CoreStates under
this Section 2.20.
2.21 Change in Legality. (a) Notwithstanding anything to the contrary
contained elsewhere in this Agreement, if any change after the date hereof in
any law or regulation or in the interpretation thereof by any governmental
authority charged with the administration thereof shall make it unlawful (based
on the opinion of any counsel, whether in-house, special or general, for
CoreStates) for CoreStates to make or maintain any Eurodollar Rate Loan or "As
Offered" Fixed Rate Loan or to give effect to its obligations as contemplated
hereby with respect to any such Loan, then, by written notice to Raymond or
Raymond Leasing, as applicable, by CoreStates, CoreStates may:
(i) declare that such Eurodollar Rate Loans or "As Offered"
Fixed Rate Loans will not thereafter be made by CoreStates hereunder,
whereupon Raymond and Raymond Leasing shall be prohibited from
requesting such Loans from CoreStates hereunder unless such
declaration is subsequently withdrawn; and CoreStates agrees to
withdraw any such declaration if and to the extent that the making
and/or maintenance by CoreStates of Eurodollar Rate Loans or "As
Offered" Fixed Rate Loans shall cease to be unlawful; and
(ii) require that all outstanding Eurodollar Rate Loans and "As
Offered" Fixed Rate Loans made by it to be converted to Prime Rate
Loans, whereupon all such Loans shall be automatically converted to
Prime Rate Loans as of the effective date of such notice as provided
in paragraph (b) below (notwithstanding the provisions of Section
2.12).
(b) For purposes of this Section 2.21, a notice to Raymond or Raymond
Leasing by CoreStates pursuant to paragraph (a) above shall be effective, if
lawful and if any Eurodollar Rate Loans or "As Offered" Fixed Rate Loans shall
then be outstanding, on the last day of then current Interest Period; otherwise,
such notice shall be effective on the date of receipt by Raymond or Raymond
Leasing, as applicable.
(c) CoreStates agrees to designate a different office of CoreStates as
its lending office for Eurodollar Rate Loans if such designation will effect
compliance with the law or regulation or interpretation thereof invoking the
provisions of this Section 2.21; provided, however, that such designation need
not be made if it would result in any additional costs, expenses or risks to
CoreStates that are not reimbursed by Raymond or Raymond Leasing pursuant hereto
or would be in any other respect prejudicial to CoreStates.
3. Representations and Warranties
Raymond and Raymond Leasing, each, for itself, represents and warrants
to CoreStates, that:
3.1 Organization, Corporate Powers, etc. It (i) is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware or New York, as applicable, and (ii) has the power and
authority to own its properties and to carry on its business as now being
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conducted, (iii) is duly qualified to do business in every jurisdiction
wherein the conduct of its business or the ownership of its properties is such
as to require such qualification and (iv) has the corporate power to execute,
deliver and perform the Loan Documents.
3.2 Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by it of the Loan Documents and the
borrowings by it hereunder (a) has been duly authorized, (b) will not violate
(i) any provision of law or any governmental rule or regulation applicable to
it, (ii) any order of any court or other agency of government binding on it or
any indenture, agreement or other instrument to which it is a party, or by which
it or any of its property is bound, and (c) will not be in conflict with, result
in a breach of or constitute (with due notice and/or lapse of time) a default
under, any such indenture, agreement or other instrument, or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of its property or assets other than as contemplated by the
Loan Documents. Each person executing the Loan Documents has full authority to
execute and deliver same for and on behalf of it.
3.3 Financial Condition. (a) Raymond and Raymond Leasing have
furnished CoreStates with consolidated financial statements of each of them and
their Subsidiaries for the fiscal year ending December 31, 1994, audited and
certified by Ernst & Young together with unaudited statement/balance sheet and
the related statements of income and retained earnings for the period ending
June 30, 1995. Such financial statements were prepared in conformity with
Generally Accepted Accounting Principles, and present fairly the financial
condition of Raymond or Raymond Leasing and their respective Subsidiaries and as
of the date of such financial statements and the results of operations for the
period covered thereby.
(b) Neither Raymond nor Raymond Leasing nor any of their respective
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material contingent obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or foreign currency
swap or exchange transaction or other financial derivative, which is not
reflected in the foregoing statements or in the notes thereto.
(c) During the period from June 30, 1995 to and including the date
hereof there has been no sale, transfer or other disposition by Raymond or
Raymond Leasing or any of their respective consolidated Subsidiaries of any
material part of its business or property and no purchase or other acquisition
of any business or property (including any capital stock of any other Person)
material in relation to the consolidated financial condition of Raymond or
Raymond Leasing and their consolidated Subsidiaries at June 30, 1995.
(d) Since June 30, 1995 there has been no development or event nor any
prospective development or event, which has had or could reasonably be expected
to have a Material Adverse Effect. There is no obligation or liability,
contingent or otherwise, of Raymond or Raymond Leasing and either of their
Subsidiaries, which is material in amount and which is not, or shall not be,
reflected in the foregoing statements (and the related notes thereto) as of said
date.
3.4 Taxes. All assessed deficiencies resulting from Internal Revenue
Service examinations of the Federal income tax returns of it have been
discharged or reserved against. It has filed or caused to be filed all Federal,
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state and local tax returns which are required to be filed, and have paid or
have caused to be paid all taxes as shown on said returns or on any assessment
received by it, to the extent that such taxes have become due, except any such
taxes that are immaterial in amount or are being contested in good faith with
appropriate reserves set aside therefor.
3.5 Title to Properties. It has good and marketable title to its
properties and assets reflected on the balance sheet referred to in Section 3.3
hereof, except for such properties and assets as have been disposed of since the
date of such balance sheet as no longer used or useful in the conduct of its
business or as have been disposed of in the ordinary course of business, and all
such properties and assets are free and clear of mortgages, pledges, liens,
charges and other encumbrances, except as required or permitted by the
provisions hereof or as disclosed in the balance sheet referred to in Section
3.3 hereof.
3.6 Litigation. (a) There are no actions, suits or proceedings
(whether or not purportedly on behalf of it) pending or, to its knowledge,
threatened against or affecting it or any material property of it, at law or
in equity or before or by any Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, which involve any of the transactions contemplated herein or which,
if adversely determined against it, would have a Material Adverse Effect; and
(b) it is not in default with respect to any judgment, writ, injunction,
decree, rule or regulation of any court or Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which would have a Material Adverse Effect.
3.7 Agreements. It is not a party to any agreement or instrument or
subject to any charter or other corporate restriction or any judgment, order,
writ, injunction, decree or regulation materially and adversely affecting its
business, properties or assets, operations or condition (financial or
otherwise). It is not in default in any manner which would have a Material
Adverse Effect or materially and adversely affect the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
other agreement or instrument to which it is a party.
3.8 ERISA. No Reportable Event has occurred during the five-year
period prior to the date on which this representation is made or deemed made
with respect to any Plan, and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code. The present value of all
accrued benefits under each Single Employer Plan maintained by Raymond or
Raymond Leasing or any Commonly Controlled Entity (based on those assumptions
used to fund the Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits. Neither Raymond
nor Raymond Leasing or any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan, and neither Raymond nor Raymond
Leasing or any Commonly Controlled Entity would become subject to any liability
under ERISA if Raymond, Raymond Leasing or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in reorganization or Insolvent.
3.9 Proceeds of the Loan. The proceeds of the Loans shall be used by
Raymond or Raymond Leasing, as applicable, only for the purposes described in
the Preliminary Statement hereto.
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3.10 Federal Reserve Regulations. (a) It is not engaged principally
in, nor have as one of its important activities, the business of extending
credit for the purpose of purchasing or carrying any "MARGIN STOCK" (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
of the United States, as amended to the date hereof). No part of the proceeds of
the borrowings hereunder will be used to purchase or carry any margin stock or
to extend credit to others for the purpose of purchasing or carrying any such
margin stock. No part of the proceeds of the borrowings hereunder will be used
for any purpose which violates or which is inconsistent with the provisions of
Regulation X of said Board of Governors. If requested by CoreStates, Raymond or
Raymond Leasing, as applicable, will furnish to CoreStates a statement on
Federal Reserve Form U-1.
(b) No part of the proceeds of the Loans will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, (i)
to purchase or to carry margin stock or to extend credit to others for the
purpose of purchasing or carrying margin stock, or to refund indebtedness
originally incurred for such purpose, or (ii) for any purpose which violates or
is inconsistent with the provisions of the Regulations G, T, U, or X of the
Board of Governors of the Federal Reserve System.
3.11 Subsidiaries. Attached hereto as Schedule 2 is a correct and
complete list of all Raymond's and Raymond Leasing's Subsidiaries and
Affiliates, showing as to each Subsidiary, its name, the jurisdiction of its
incorporation and the percentage of such outstanding shares owned by Raymond or
Raymond Leasing and other Subsidiaries, respectively. Each of its Subsidiaries
and Affiliates is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
3.12 Environmental Matters. To the best of its knowledge, each of
the representations and warranties set forth in paragraphs (a) through (e) of
this Section is true and correct with respect to each parcel of real property
owned or operated by it and/or its Subsidiaries (the "PROPERTIES"), except to
the extent that the facts and circumstances giving rise to any such failure to
be so true and correct could not reasonably be expected to have a Material
Adverse Effect:
(a) The Properties do not contain, and have not previously
contained, in, on, or under, including, without limitation, the soil
and groundwater thereunder, any Hazardous Materials.
(b) The Properties and all operations and facilities at the
Properties are in compliance with all Environmental Laws, and there is
no Hazardous Materials contamination or violation of any Environmental
Law which could interfere with the continued operation of any of the
Properties or impair the fair market value of any thereof.
(c) Neither it nor any of its Subsidiaries has received any
complaint, notice of violation, alleged violation, investigation or
advisory action or of potential liability or of potential
responsibility regarding environmental protection matters or permit
compliance with regard to the Properties, nor is it aware that any
Governmental Authority is contemplating delivering to it or any of
its Subsidiaries any such notice.
(d) Hazardous Materials have not been generated, treated,
stored, disposed of, at, on or under any of the Properties, nor have
any Hazardous Materials been transferred from the Properties to any
other location.
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(e) There are no governmental, administrative actions or
judicial proceedings pending or contemplated under any Environmental
Laws to which it or any of its Subsidiaries is or will be named as a
party with respect to the Properties, nor are there any consent
decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements
outstanding under any Environmental Laws with respect to any of the
Properties.
3.13 Not an Investment Company. It is not an "INVESTMENT COMPANY"
within the meaning of the Investment Company Act of 1940, as amended. It is not
subject to regulation under any Federal or State statute or regulation which
limits its ability to incur Indebtedness.
3.14 Material Charge. No material adverse change in its business or
operations has occurred since the financial statements dated as of June 30, 1995
previously delivered to CoreStates.
3.15 Governmental Approval. No registration with or consent or
approval of, or other action by, any Federal, state or other governmental
authority or regulatory body is required in connection with the execution,
delivery and performance of the Loan Documents or the borrowings hereunder.
3.16 Full Disclosure. All written information heretofore furnished by
it to CoreStates for purposes of or in connection with this Agreement is, and
all such information hereafter furnished by it to CoreStates will be, true and
accurate in all material respects on the date as of which such information is
stated or certified. It has disclosed to CoreStates in writing any and all facts
which, in its reasonable judgment have or would be reasonably likely to cause a
Material Adverse Effect.
3.17 Binding Effect. This Agreement and each other Loan Document to
which it or any of its Subsidiaries is a party constitute the legal, valid and
binding obligations of it and any of its Subsidiaries to the extent it is a
party thereto, enforceable against such Person in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
3.18 Trademarks and Licenses, etc. It and its Subsidiaries own or are
licensed or otherwise have the right to use, to the best of their knowledge, all
of the trademarks, service marks, trade names, franchises, authorizations and
other rights that are reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other Person, to the extent
that failure to have such rights would reasonably be likely to cause a Material
Adverse Effect. To the best of its knowledge, no slogan or other advertising
device or product, now employed, or now contemplated to be employed by it or any
of its Subsidiaries infringes upon any rights held by any other Person; no claim
or litigation regarding any of the foregoing is pending or threatened, and no
statute, law, rule, regulation, standard or code is pending or, to its
knowledge, proposed regarding the foregoing, which, in either case, would
reasonably be expected to result in a Material Adverse Effect.
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4. Conditions of Lending
The obligation of CoreStates to lend hereunder is subject to the
following conditions precedent:
4.1 Representations and Warranties; No Default. At the time of each
borrowing hereunder: (i) the representations and warranties set forth in Article
3 hereof shall be true and correct in all material respects on and as of such
time with the same effect as though such representations and warranties had been
made on and as of such time; and (ii) Raymond and Raymond Leasing shall be in
compliance with all the terms and provisions sit forth herein on their part to
be observed or performed, and no Default or Event of Default shall have occurred
and be continuing at the time of each borrowing hereunder.
4.2 Opinion of Counsel. On or prior to the Closing Date, CoreStates
shall have received the legal opinion of the General Counsel of Raymond and
Raymond Leasing, covering such matters incident to the transactions contemplated
by this Agreement as CoreStates may reasonably require.
4.3 No Default Certificate; Deemed Representation. At the time of
the initial borrowing hereunder, Raymond and Raymond Leasing each shall
deliver to CoreStates a certificate in the form of Schedule 3, dated such date
and signed by its Chief Financial Officer confirming compliance with the
conditions precedent set forth in Section 4.1 hereof. Each request for a
subsequent borrowing hereunder shall be deemed a representation and warranty
by Raymond or Raymond Leasing, as applicable, that the conditions precedent
set forth in Section 4.1 hereof are true and correct with the same effect as
though such representations and warranties had been made on and as of the date
of such borrowing.
4.4 Supporting Documents. On or prior to the Closing Date, CoreStates
shall have received (a) a certificate of good standing for Raymond and Raymond
Leasing from the Secretary of the State of Delaware or New York, as appropriate,
dated as of a recent date; (b) copies of the Certificates of Incorporation and
By-laws of Raymond and Raymond Leasing (c) a certificate of the Secretary or an
Assistant Secretary of Raymond and Raymond Leasing dated the Closing Date and
certifying (i) that neither the Certificates of Incorporation nor the By-laws of
Raymond and Raymond Leasing have been amended; (ii) that attached thereto is a
true and complete copy of resolutions adopted by the Board of Directors of
Raymond and Raymond Leasing authorizing the execution, delivery and performance
of the Loan Documents; (iii) the incumbency and specimen signature of each
officer of Raymond and Raymond Leasing executing the Loan Documents, and a
certification by another officer of Raymond and Raymond Leasing as to the
incumbency and signature of the Secretary or Assistant Secretary of Raymond and
Raymond Leasing; (d) such other documents as CoreStates may reasonably request.
4.5 Other Information, Documentation. CoreStates shall receive such
other and further information and documentation as it may reasonably require,
including, but not limited to, any information or documentation or a letter from
Raymond and Raymond Leasing relating to their compliance with ERISA and with the
requirements of all federal, state and local laws, ordinances, rules,
regulations or policies governing the use, storage, treatment, transportation,
refinement, handling, production or disposal of Hazardous Materials.
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5. Affirmative Covenants
Raymond and Raymond Leasing, each, for itself, covenants and agrees
with CoreStates that, so long as this Agreement shall remain in effect or any of
the principal of or interest on the Notes or any fees remain unpaid, it will,
and will cause each of its Subsidiaries to:
5.1 Corporate Existence, Properties, Insurance, etc. Except as
permitted in Section 5.2, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a corporation, its
rights and franchises and comply, in all material respects, with all laws
applicable to it; at all times maintain, preserve and protect all franchises,
trade names, licenses, patents, trademarks and copyrights and preserve all
material property used or useful in the conduct of their business and keep the
same in good repair, working order and condition, reasonable wear and tear
excluded, and from time to time make, or cause to be made, all needful and
proper repairs, renewals, replacements, betterments and improvements thereto
so that the business carried on in connection therewith may be properly and
advantageously conducted at all times and at all times keep its insurable
proportions adequately insured.
5.2 Payment of Indebtedness, Taxes, etc. (a) Pay all indebtedness and
obligations as and when due and payable and (b) pay and discharge or cause to be
paid and discharged promptly all taxes, assessments and governmental charges or
levies imposed upon it or upon its income and profits, or upon any of its
property, real, personal or mixed, or upon any part thereof, before the same
shall become in default, as well as all lawful claims for labor, materials and
supplies or otherwise which, if unpaid, might become a lien or charge upon such
properties or any part thereof; provided, however, that neither Raymond nor
Raymond Leasing, as applicable, or any of its Subsidiaries shall be required to
pay and discharge or cause to be paid and discharged any such tax, assessment,
charge, levy or claim so long as the validity thereof shall be contested in good
faith by appropriate proceedings, and Raymond or Raymond Leasing, as applicable,
or such Subsidiary, as the case may be, shall have set aside on its books
adequate reserves with respect to any such tax, assessment, charge, levy or
claim so contested; and further provided that, subject to the foregoing proviso,
Raymond or Raymond Leasing, as applicable, and its Subsidiaries will pay or
cause to be paid all such taxes, assessments, charges, levies or claims upon the
commencement of proceedings to foreclose any lien which has attached as
security therefor.
5.3 Reporting Requirements. Raymond and Raymond Leasing, each will
furnish directly to CoreStates:
(a) as soon as available and in any event within 120 days after
the end of each fiscal year of each, a consolidated balance sheet of
each of them and its consolidated Subsidiaries as of the end of such
fiscal year and a consolidated income statement and statements of cash
flows and changes in stockholders' equity for such fiscal year, all in
reasonable detail and stating in comparative form the respective
consolidated figures for the corresponding date and period in the
prior fiscal year, and all prepared in accordance with Generally
Accepted Accounting Principles and as to the consolidated statements
accompanied by an opinion thereon acceptable to CoreStates by Ernst &
Young or other independent accountants of national standing selected
by Raymond;
(b) deliver, together with the information required in (a)
above, the same information presented on a consolidating basis
prepared by management of each of them;
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(c) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of
Raymond and Raymond Leasing, a consolidated and consolidating balance
sheet of each of them and its consolidated Subsidiaries as of the end
of such quarter and a consolidated and consolidating income statement
and statements of cash flows and changes in stockholders' equity for
the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, all in reasonable detail and
stating in comparative form the respective consolidated and
consolidating figures for the corresponding date and period in the
previous fiscal year and all prepared in accordance with Generally
Accepted Accounting Principles and certified by its chief financial
officer (subject to year-end adjustments);
(d) promptly upon receipt thereof, copies of any reports
submitted to it or any of its Subsidiaries by independent certified
public accountants in connection with examination of its financial
statements or any such Subsidiary made by such accountants;
(e) simultaneously with the delivery of the financial statements
referred to above, a certificate of its chief financial officer (i)
certifying that to the best of his knowledge no Default or Event of
Default has occurred and is continuing or, if a Default or Event of
Default has occurred and is continuing, a statement as to the nature
thereof and the action which is proposed to be taken with respect
thereto, and (ii) with computations demonstrating compliance with the
covenants contained in Articles 7, 7A or 7B, as applicable;
(f) promptly after the commencement thereof, notice of each
action, suit, and proceeding before any court or governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting it or any of its Subsidiaries which,
(i) involves a claim in which it appears that the potential
liability exceeds 1/2% of the Consolidated Tangible Net Worth plus
Subordinated Debt approved by CoreStates in writing; (ii) if
determined adversely to it or such Subsidiary, could have a material
adverse effect on its financial condition, properties, or operations
or such Subsidiary, or (iii) questions the validity of any of the Loan
Documents;
(g) as soon as possible after the occurrence of each Default or
Event of Default, a written notice setting forth the details of such
Default or Event of Default and the action which is proposed to be
taken by it with respect thereto;
(h) at all times indicated in (a) above, a copy of the
management letter prepared by the independent auditors;
(i) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
Raymond and Raymond Leasing and any of their Subsidiaries as
CoreStates may reasonably request.
5.4 Access to Premises and Records. Maintain financial records in
accordance with Generally Accepted Accounting Principles and permit
representatives of CoreStates to have access to such financial records and its
premises and the premises of any of its Subsidiaries upon request, and to make
such excerpts from such records or to conduct such audits and field examinations
as such representatives deem reasonably necessary.
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5.5 Notice of Adverse Change. Promptly, but not later than fifteen
(15) Business Days after any change or information shall have come to the
attention of any Executive Officer, notify CoreStates in writing of (a) any
change in the business or the operations which, in the good faith judgment of
such officer, would be reasonably likely to have a Material Adverse Effect, and
(b) any information which indicates that any financial statements which are the
subject of any representation contained in this Agreement, or which are
furnished to CoreStates pursuant to this Agreement, fail, to any material
extent, to present fairly the financial condition and results of operations
purported to be presented therein, disclosing the nature thereof.
5.6 Notice of Default. Promptly, in the event any Executive Officer
knows of any Default or Event of Default, or knows of an event of default under
any other agreement, furnish to CoreStates a written statement as to such
occurrence, specifying the nature and extent thereof and the action (if any)
which is proposed to be taken with respect thereto.
5.7 ERISA. (a) comply, in all material respects with the provisions
of ERISA applicable to any Plan maintained by it and its Subsidiaries; and (b)
as soon as possible and, in any event, within 10 days after it or any
Subsidiary knows any of the following, deliver to CoreStates a certificate of
its Chief Financial Officer setting forth details as to such occurrence and
such action, if any, which it, any Subsidiary or ERISA Affiliate is required
or proposes to take, together with any notices required or proposed to be
given to or filed with or by it, the Subsidiary, ERISA Affiliate, the PBGC, a
Plan participant or the Plan Administrator with respect thereto: that a
Reportable Event has occurred or is expected to occur, that an accumulated
funding deficiency has been incurred or an application may be or has been made
to the Secretary of the Treasury for a waiver or modification of the minimum
funding standard (including any required installment payments) or an extension
of any amortization period under Section 412 of the Code with respect to a
Plan, that a Plan has been or may be terminated, reorganized, partitioned or
declared insolvent under Title IV of ERISA, that a Plan has an Unfunded
Current Liability giving rise to a lien under ERISA, that proceedings may be
or have been instituted to terminate a Plan, that a proceeding has been
instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan, or that it, any Subsidiary or any ERISA Affiliate will
or may incur any liability (including any contingent or secondary liability)
to or on account of the termination of or withdrawal from a Plan under Section
4062, 4063, 4064, 4201 or 4204 of ERISA. In addition to any certificates or
notices delivered to CoreStates pursuant to the second sentence hereof, copies
of annual reports and any other notices received by it or any Subsidiary
required to be delivered to CoreStates hereunder shall be delivered to
CoreStates no later than 30 days after the later of the date such report or
notice has been filed with the Internal Revenue Service or the PBGC, given to
Plan participants or received by it or any Subsidiary.
5.8 Compliance with Contractual Obligations and Requirements of Law;
Applicable Laws. Comply, in all material respects, with all Contractual
Obligations and Requirements of Law, the breach of which would be reasonably
likely to have a Material Adverse Effect.
5.9 Subsidiaries. Give CoreStates prompt written notice of the
creation, establishment or acquisition, in any manner, of any Subsidiary or
Affiliate not existing on the date hereof.
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5.10 Environmental Laws
(a) Comply with, and insure compliance by all tenants and subtenants,
if any, with, all Environmental Laws and obtain and comply with and maintain and
insure that all tenants and subtenants obtain and comply with and maintain, any
and all licenses, approvals, registrations or permits required by Environmental
Laws except to the extent that failure to do so could not be reasonably expected
to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives of
all Governmental Authorities respecting Environmental Laws except to the extent
that the same are being contested in good faith by appropriate proceedings and
the pendency of such proceedings could not be reasonably expected to have a
Material Adverse Effect; and
(c) Defend, indemnify and hold harmless CoreStates and its respective
employees, agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising out
of, or in any way relating to the violation of or non-compliance with any
Environmental Laws applicable to the real property owned or operated by it or
any of its Subsidiaries, or any orders requirements or demands of Governmental
Authorities related thereto, including, without limitation, attorney's and
consultant's fees, investigation and laboratory fees, court costs and litigation
expenses, except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification therefor.
5.11 Voting of Subsidiaries' Shares. Raymond and Raymond Leasing will
each vote the shares of any Subsidiary, and cause any Subsidiary share to be
voted, in a manner which will not violate any of the covenants or restrictions
of this Agreement or any other of the Loan Documents.
5.12 Restrictive Covenants in Other Agreements. If Raymond or Raymond
Leasing shall enter into or otherwise become subject to or suffer to exist any
agreement pertaining to Indebtedness which contains covenants or restrictions
that are more restrictive on it or any Subsidiary than the covenants and
restrictions contained in this Agreement, each and every such covenant and
restriction shall be deemed incorporated herein by reference as fully as if set
forth herein. If and to the extent that any such covenant or restriction shall
be inconsistent with or otherwise be in conflict with any covenant or
restriction set forth herein, this Agreement shall govern.
6. Negative Covenants
Raymond and Raymond Leasing, each, for itself, covenants and agrees
with CoreStates that, so long as this Agreement shall remain in effect or any of
the principal of or interest on the Notes or any fees remain unpaid, it will
not, nor will it permit any Subsidiary to, directly or indirectly:
6.1 Liens. Incur, create, assume or suffer to exist any mortgage,
pledge, lien, charge or other encumbrance or restriction of any nature
whatsoever (including conditional sales, other title retention agreements or
liens on inventory or accounts receivables) on any of their assets now or
hereafter owned, other than:
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(a) liens existing on the date hereof as set forth on Schedule 4
attached hereto which liens are not to be renewed, extended or
refinanced;
(b) deposits under workmen's compensation, unemployment
insurance and social security laws, or to secure the performance of
bids, tenders, contracts (other than for the repayment of borrowed
money) or leases or to secure statutory obligations or surety, appeal
bonds or discharge of lien bonds, or to secure indemnity, performance
or other similar bonds in the ordinary course of business;
(c) statutory liens of landlords and other liens imposed by law,
such as carriers', warehousemen's or mechanic's liens, incurred in
good faith in the ordinary course of business and deposits made or
bonds filed in the ordinary course of business to obtain the release
of such liens;
(d) liens for taxes not yet due, or liens for taxes contested as
permitted by Section 5.2;
(e) any other liens granted to CoreStates, and
(f) debt secured by purchase money mortgages or other
encumbrances on after acquired property, provided that the principal
amount of all such secured debt does not exceed 10% of its tangible
net worth plus Subordinated Debt approved by CoreStates in writing.
6.2 Guarantees, Etc. Assume, guarantee, endorse or otherwise be or
become directly or contingently responsible or liable (including, but not
limited to, an agreement to purchase any obligation, stock, assets, goods or
services or to supply or advance any funds, assets, goods or services, or any
agreement to maintain or cause any Person to maintain a minimum working capital
or net worth or otherwise to assure the creditors of any Person against loss)
for the obligations of any Person "GUARANTEE", or permit any of its Subsidiaries
to do so, (i) except Guarantees by endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary course of
business, and (ii) except Guarantees of obligations aggregating not more than
10% of the amount of its tangible net worth (excluding, however, from such
calculation Raymond's guarantee of Raymond Leasing's 8.86% Senior Notes due
November 27, 1997) from time to time, which Guarantee obligations shall be
included in current liabilities, total liabilities or funded debt, as
appropriate, depending on the terms of the guaranteed obligations.
6.3 Sale of Notes. Sell, transfer, discount or otherwise dispose of
notes, accounts receivable or other rights to receive payment with or without
recourse, except for the purpose of collection in the ordinary course of
business.
6.4 Investments. Make investments, lend or advance money, purchase or
hold beneficially any stock, other securities, or evidences of indebtedness of,
purchase or acquire all or a substantial part of the assets of, make or permit
to exist any interest whatsoever in, any other Person, other than as set forth
in Section 6.12 hereof, except that it may invest in:
(a) direct obligations of the United States of America or
obligations guaranteed by the United States of America, provided that
such obligations mature within one year from the date of acquisition
thereof; or
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(b) time certificates of deposit issued by any commercial bank
organized and existing under the laws of the United States or any
state thereof and having aggregate capital and surplus in excess of
$500,000,000; or
(c) commercial paper rated not less than A-1 or P-1 or their
equivalent by Moody's Investor Services, Inc. or Standard & Poor's
Corporation, respectively; or
(d) money market mutual funds having assets in excess of two
billion dollars;
(e) advances to and/or investments in Subsidiaries that guaranty
all Loans on terms satisfactory to CoreStates;
(f) capital leases under which Raymond Leasing is the lessor,
entered into by Raymond Leasing in the ordinary course of its
equipment leasing business; and
(g) advances or investments by Raymond in Unconsolidated
Investees made after December 31, 1994 aggregating up to 15% of
tangible net worth plus Subordinated Debt approved by CoreStates in
writing, or
(h) advances and/or investments in any Person (other than
permitted above), whether by acquisition of stock, indebtedness,
other obligation or security, or by loan, advance, capital
contribution, or otherwise so long as (i) the sum of such acquisition,
advance or investment (valued immediately after such action) made
after December 31, 1994 does not exceed 10% of its tangible net worth
plus Subordinated Debt approved by CoreStates in writing, (ii) a
default or an event of default under this Agreement would not exist,
and (iii) Raymond and Raymond Leasing could incur at least $l.00 of
additional Senior Indebtedness.
6.5 Change in Business. Materially change or alter the nature of its
business from the business currently engaged in.
6.6 Dividends. Declare or pay any cash dividend on its capital stock
or make any other distribution with respect to its capital stock (other than
distributions in accordance with Section 6.11 hereof) or redeem, retire,
purchase or otherwise acquire, directly or indirectly, for value or set apart
any sum for the redemption, retirement, purchase or other acquisition of,
directly or indirectiy, any share of its capital stock or warrants or options
therefor except that: (a) it may declare and deliver dividends and make
distributions payable solely in its common stock; (b) it may purchase or
otherwise acquire shares of its capital stock by exchange for or out of the
proceeds received from a substantially concurrent issue of new shares of its
capital stock; (c) it may make or declare cash dividends with respect to its
capital stock unless immediately after giving effect thereto, the sum of such
cash dividends would not exceed the sum of 50% of cumulative net income (minus
100% of any net loss) subsequent to December 31, 1993, plus $2,000,000 for
Raymond and $1,000,000 for Raymond Leasing. In addition, neither Raymond nor
Raymond Leasing will authorize or make any cash dividends if, after giving
effect thereto, a Default or Event of Default would exist or if it could not
incur at least $1.00 of additional Senior Indebtedness.
6.7 Subordinated Debt. Make any optional prepayment of, or purchase,
redeem or otherwise acquire, or amend any provision in respect of the
subordination or the terms of payment of any Subordinated Debt except such
Subordinated Debt may be converted in part or in full to equity.
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6.8 Accounting Policies and Procedures. Permit any material change in
its accounting policies and procedures, other than as required by generally
accepted accounting principles, including a change in its fiscal year, without
the prior consent of CoreStates.
6.9 Stock of Subsidiaries, Etc. (a) Sell or otherwise dispose of any
shares of capital stock of any of its Subsidiaries, or (b) permit any such
Subsidiary to issue any additional shares of its capital stock, except
as permitted by Section 6.6, and except for directors' qualifying shares.
6.10 Transactions with Affiliates. Enter into any transaction,
including, without limitation, the purchase, sale or exchange of property or the
rendering of any service, with any Affiliate or permit any of its Subsidiaries
to enter into any transaction, including, without limitation, the purchase, sale
or exchange of property or the rendering of any service, with any Affiliate,
except in the ordinary course of and pursuant to the reasonable requirements of
its or such Subsidiary's business and upon fair and reasonable terms no less
favorable to it or such Subsidiary than it would obtain in a comparable arm's
length transaction with a Person not an Affiliate.
6.11 Merger or Consolidation or Sales of Assets. It will not and will
not permit a Subsidiary to, become a party to any merger or consolidation or
sell, lease, assign or otherwise dispose of 10% or more of its consolidated
assets in any fiscal year or assets which have accounted for 10% or more of
Consolidated Adjusted Net Income in the fiscal year (except that any Subsidiary
may merge into or consolidate with it or another Subsidiary so long as it would
be the surviving corporation) unless immediately thereafter (1) it would be the
surviving corporation or (2) the surviving corporation would be (i) organized
under the laws of the United States, (ii) would be engaged in the same line of
business as it, (iii) the surviving corporation expressly assumes, in writing,
the due and punctual payment of the principal and interest and premium, if any,
on the loans and the due and punctual performance and observance of all
covenants and (iv) in the case of Raymond Leasing, Raymond expressly
acknowledges such merger or consolidation and the continuing validity of the
Operating Agreement; provided, however, that in any case, no Event of Default
would exist under the covenants contained in this Agreement and it would be able
to issue at least $1.00 of additional Senior Indebtedness.
6.12 Restrictions on Leases of Equipment. Raymond Leasing shall not,
and shall not permit any Subsidiary to, at any time permit the aggregate
original cost of all equipment at any time subject to a lease and manufactured
or sold by a Person other than Raymond to exceed 15% of the aggregate original
cost of all equipment at such time subject to a lease provided, however, that
for purposes of this Section, batteries and chargers shall be deemed to be
equipment manufactured by Raymond.
6.13 The Raymond Corporation Subsidiaries. Raymond shall not enter
into any agreement or other arrangement, or take or permit its Subsidiaries to
take any action, which would limit is ability to receive loans or dividends from
any of its Subsidiaries other than Raymond Leasing, or would limit the ability
of such Subsidiaries to make such loam or pay such dividends.
7. Financial Covenants - Raymond Corporation
So long as any of the Notes shall remain unpaid or CoreStates shall
have any commitment under this Agreement, Raymond agrees that it shall, at all
times, with respect to (i) itself, (ii) its existing consolidated Subsidiaries
other than Raymond Leasing and (iii) any Subsidiaries that become consolidated
Subsidiaries after the date of this Agreement:
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7.1 Minimum Working Capital. Maintain Raymond Working Capital of not
less than $45,000,000.
7.2 Minimum Tangible Net Worth. Maintain tangible net worth of not
less than $42,000,000 plus 50% of its net income earned subsequent to December
31, 1993.
7.3 Leverage Ratio. Maintain a ratio of total unsubordinated
liabilities to tangible net worth of not greater than 1.25 to 1.00.
7.4 Interest Coverage. Maintain as of the end of each calendar
quarter a ratio of EBITDA for the four calendar quarter period then ended, to
Interest Expense for such period of not less than 2.25 to 1.0.
7.5 Loss Ouarters. Not incur a net loss in any two (2) consecutive
calendar quarters or in any fiscal year.
7A. Financial Covenants - Raymond Leasing Corporation
So long as any of the Notes shall remain unpaid or CoreStates shall
have any Commitment under this Agreement, Raymond Leasing agrees that it shall,
at all times:
7A.1. Minimum Tangible Net Worth. Maintain a tangible net worth of
not less than S20,000,000, plus 50% of its net income earned subsequent to
December 31, 1993.
7A.2. Leverage Ratio. Maintain a ratio of Senior Indebtedness to
tangible net worth of not greater than 3.0 to 1.0.
7A.3. Interest Coverage. Maintain as of the end of each calendar
quarter a ratio of EBITDA for the four calendar quarter period then ended, to
Interest Expense for such period of not less than 1.3 to 1.00.
7A.4. Loss Quarter. Not incur a net loss in any two (2) consecutive
calendar quarters or in any fiscal year.
7A.5. Working Capital. Maintain a Working Capital of not less than $0.
7B. Financial Covenants - Consolidated
So long as any of the Notes shall remain unpaid or CoreStates shall
have any Commitment under this Credit Agreement, Raymond and Raymond Leasing
agree that they shall, at all times, with respect to (i) themselves, (ii) their
existing consolidated Subsidiaries, and (iii) any Subsidiaries that become
consolidated Subsidiaries after the date of this Agreement:
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7B.1. Minimum Tangible Net Worth. Maintain at all times a Consolidated
Tangible Net Worth of not less than $65,000,000, plus 50% of their consolidated
net income earned subsequent to December 31, 1993.
7B.2. Leverage Ratio. Maintain at all times a ratio of Consolidated
Total Unsubordinated Liabilities to Consolidated Tangible Net Worth of not
greater than 1.50 to 1.00.
7B.3. Interest Coverage. Maintain as of the end of each calendar
quarter a ratio of consolidated EBITDA for the four calendar quarter period then
ended, to Consolidated Interest Expense for such period of not less than 2.00 to
1.00.
7B.4. Consolidated Losses. Not incur consolidated net losses in any
two (2) consecutive calendar quarters or in any fiscal year.
8. Events of Default
8.1 Events of Default. In the case of the happening of any one or more
of the following events (each an "EVENT OF DEFAULT"):
(a) default shall occur (i) in the payment of the principal or
interest on any of the Notes or Loans when due or (ii) in the payment
of any fees or other amounts due hereunder within five (5) days after
such fees or other amounts become due in accordance herewith;
(b) any representation or warranty herein or in any of the Loan
Documents, in any certificate or report furnished in connection
herewith or in any amendment to this Agreement, shall prove to be
false or misleading in any material respect when made or given or
deemed made or given;
(c) default shall be made in respect of any agreement or
obligation relating to any obligation of Raymond or Raymond Leasing
or any of their respective Subsidiaries for borrowed money (other than
the Notes), if the effect of such default or the result of any action
by the obligee is to accelerate the maturity of such obligation or to
permit the holder or obligee thereof (or a trustee on behalf of such
holder or obligee) to cause such obligation to become due prior to the
stated maturity thereof or which, with the passage of time, the giving
of notice or both would constitute an event of default under any
agreement, or any such obligation shall not be paid when due after
giving effect to any applicable grace period;
(d) default shall be made in the due observance or performance
of any covenant condition or agreement to be performed pursuant to
Articles 6, 7, 7A and 7B of this Agreement;
(e) default shall be made in the due observance or performance
of any covenant, condition or agreement to be performed pursuant to
this Agreement other than as described in (d) above which shall
continue unremedied for more than ten (10) days;
(f) (i) default shall be made in the due observance or
performance of any covenant, condition or agreement of Raymond or
Raymond Leasing to be performed pursuant to the Loan Documents (other
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<PAGE>
than this Agreement) and not cured within any applicable grace period
or (ii) any of the Loan Documents (other than this Agreement) shall
cease to be in full force and effect or shall be declared to be null
and void, or the validity or enforceability thereof shall be contested
or any party thereto shall deny that it has any further liability to
CoreStates with respect thereto;
(g) Raymond or Raymond Leasing or any of their respective
Subsidiaries shall (i) voluntarily commence any case, proceeding or
other action or file any petition seeking relief under Title 11 of
the United States Code or any other existing or future Federal
domestic or foreign bankruptcy, insolvency or similar law, (ii)
consent to the institution of, or fail to controvert in a timely and
appropriate manner, any such proceeding or the filing of any such
petition, (iii) apply for or consent to the employment of a receiver,
trustee, custodian, sequestrator or similar official for Raymond or
Raymond Leasing or any of their respective Subsidiaries or for a
substantial part of any of their property, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take corporate
action for the purpose of effecting any of the foregoing;
(h) an involuntary case, proceeding or other action shall be
commenced or an involuntary petition shall be filed in a court of
competent jurisdiction seeking (i) relief in respect of Raymond or
Raymond Leasing or any of their respective Subsidiaries or of a
substantial part of any of their property, under Title 11 of the
United States Code or any other existing or future Federal, domestic
or foreign bankruptcy, insolvency or similar law, (ii) the appointment
of a receiver, trustee, custodian, sequestrator or similar official
for Raymond or Raymond Leasing or any Subsidiary of either of them or
for a substantial part of the property of any of them, or (iii) the
winding-up or liquidation of Raymond or Raymond Leasing or any
Subsidiary; and such proceeding or petition shall continue undiscussed
for 60 days or an order or decree approving or ordering any of the
foregoing shall continue unstayed and in effect for 60 days;
(i) there shall be commenced against Raymond or Raymond Leasing
or any of their respective Subsidiaries any case, proceeding or other
action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief
which shall not have been vacated, discharged or stayed or bonded
pending appeal within sixty (60) days from the entry thereof;
(j) one or more judgments or decrees shall be entered against
Raymond, Raymond Leasing or any of their respective Subsidiaries
involving in the aggregate a liability (not paid or fully covered by
insurance) of $500,000 or more and all such judgments or decrees shall
not have been vacated, discharged, stayed or bonded pending appeal
within 60 days from the entry thereof and have not been reserved for
on Raymond's or Raymond Leasing's financial statements and which are
not actually being contested in good faith in appropriate proceeding;
(k) (i) any Person shall engage in any "PROHIBITED
TRANSACTION" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "ACCUMULATED FUNDING
DEFICIENCY" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan, or any lien shall
arise on the assets of Raymond or Raymond Leasing or any Commonly
Controlled Entity in favor of the PBGC or a Plan (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to
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<PAGE>
have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of CoreStates, likely to
result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) the Company or any Commonly Controlled Entity
shall, or in the reasonable opinion of CoreStates is likely to,
incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan or (vi) any
other event or condition shall occur or exist, with respect to a
Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if
any, could subject Raymond or Raymond Leasing or any of their
respective Subsidiaries to any tax, penalty or other liabilities in
the aggregate material in relation to the business, operation,
property or financial or other condition of Raymond or Raymond
Leasing and its respective Subsidiaries taken as a whole;
(l) Raymond shall at any time and for any reason cease to own
beneficially 100% of the outstanding capital stock of Raymond
Leasing;
then, at any tune thereafter during the continuance of any such event,
CoreStates may, by written notice to Raymond and Raymond Leasing (i) terminate
the Commitment, Revolving Credit Loans and the Term Loan(s) and, (ii) declare
the Notes to be forthwith due and payable, both as to principal and interest.
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived, anything contained herein or in the Notes to the
contrary notwithstanding, provided, however, that if an event specified in
Section 8.1(g) or (h) hereof shall have occurred, the Commitment, Revolving
Credit Loans and Term Loan(s) shall automatically terminate and the Notes
shall immediately become due and payable, and CoreStates in each instance shall
have the right to exercise its rights under the Loan Documents as permitted
by law.
9. Miscellaneous
9.1 Notices. All notices, requests and other communications provided
for hereunder shall be in writing and shall be deemed to have been duly given
or made when delivered by hand or facsimile at the address set forth below, or
if sent by certified mail, three days after the day on which mailed, or, in
the case of telex, when answerback received, or, in the case of an overnight
courier service, one business day after delivery to such courier service,
addressed as set forth below, or to such other address as may be hereafter
notified by the respective parties hereto:
(a) if to CoreStates Bank, N.A., at
CoreStates Bank, N.A.
Widener Building, 11th Floor, FC 1-8-11-24
1339 Chestnut Street
Philadelphia, PA 19101
Attention: Amos N. Beason, Assistant Vice President
Fax #: (215) 786-7704
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<PAGE>
(b) if to Raymond or Raymond Leasing, at
Mr. William B. Lynn, Executive Vice President
The Raymond Corporation
or
Mr. Patrick J. McManus, President
Raymond Leasing Corporation
Corporate Headquarters
Greene, NY 13778
Fax #: (607) 656-9942
(c) as to each such party at such other address as such party shall have
designated to the other in a written notice complying as to delivery
with the provisions of this Section 9.1.
9.2 Survival of Agreement; Successors and Assigns. (a) All covenants,
agreements, representations and warranties made herein and in the certificates
delivered pursuant hereto shall survive the making by CoreStates of the Loans
herein contemplated and the execution and delivery to CoreStates of the Notes
evidencing such Loans and shall continue in full force and effect so long as the
Notes are outstanding and unpaid or the Commitment is outstanding.
(b) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include (i) the successors and assigns of
such party; (ii) all covenants, promises and agreements by or on behalf of it
which are contained in this Agreement shall bind and inure to the benefit of the
respective successors and assigns of CoreStates and (iii) no other Person shall
be a direct or indirect legal beneficiary of, or have any direct or indirect
cause of action or claim in connection with this Agreement or any of the other
Loan Documents. CoreStates shall not have any obligation to any Person not a
party to this Agreement or other Loan Documents.
9.3 Expenses of CoreStates; Indemnification.
(a) Raymond and Raymond Leasing will pay all reasonable out-of-pocket
costs and expenses incurred by CoreStates in connection with the preparation,
development and execution of the Loan Documents and any amendment, supplement
or modification to this Agreement, the Notes and the other Loan Documents
including, without limitation, the fees and disbursements of counsel to
CoreStates (including, without limitation, allocation of the cost of in-house
counsel to CoreStates whether or not the transactions hereby contemplated shall
be consummated), the making of the Loans hereunder, the costs and expenses
incurred in connection with the enforcement or preservation of any rights of
CoreStates under this Agreement, the Notes and the other Loan Documents or in
connection with the Loans, including, without limitation, fees and disbursements
of counsel to CoreStates (including, without limitation, allocation of the cost
of in-house counsel to CoreStates).
(b) Raymond and Raymond Leasing agree to indemnify CoreStates and
its respective directors, officers, employees and agents against, and to hold
CoreStates and each such person harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees
and expenses, incurred by or asserted against CoreStates or any such person
arising out of, in any way connected with, or as a result of (i) the use of any
of the proceeds of the Loans, (ii) this Agreement or other Loan Documents, (iii)
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the performance by the parties hereto and thereto of their respective
obligations hereunder and thereunder (including but not limited to the making of
the Commitment) and consummation of the transactions contemplated hereby and
thereby, (iv) breach of any representation or warranty or (v) any claim,
litigation, investigation or proceedings relating to any of the foregoing,
whether or not CoreStates or any such person is a party thereto; provided,
however, that such indemnity shall not, as to CoreStates, apply to any such
losses, claims, damages, liabilities or related expenses to the extend that they
result from the gross negligence or willful misconduct of CoreStates.
(c) Raymond and Raymond Leasing agree to indeninify, defend and hold
harmless CoreStates and its respective officers, directors, shareholder, agents
and employees (collectively, the "INDEMNITIES") from and against any loss, cost,
damage, liability, lien, deficiency, fine, penalty or expense (including,
without limitation, reasonable attorney's fees and reasonable expenses for
investigation, removal, cleanup and remedial costs and modification costs
incurred to permit, continue or resume normal operations of any property or
assets or business of the firm) arising from a violation of, or failure to
comply with any Environmental Laws and to remove any lien arising therefrom
except to the extent caused by the gross negligence or willful misconduct of
any Indemnitee, which any of the Indemnities may incur of which may be claimed
or recorded against any of the Indemnities by any Person.
(d) The provisions of this Section 9.3 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term
or provision of this Agreement or any of the Loan Documents, or any
investigation made by or on behalf of CoreStates. All amounts due under this
Section 8.3 shall be payable on written demand therefor.
9.4 Applicable Law. This Agreement, the Notes and the other Loan
Documents (other than those containing a contrary express choice of law) shall
be governed and construed by and interpreted in accordance with the laws of the
Commonwealth of Pennsylvania without regard to Pennsylvania or federal
principles or the conflict of laws.
9.5 Waiver of Rights by CoreStates: Waiver of Jury Trial. etc. (a)
Neither any failure nor any delay on the part of CoreStates in exercising any
right, power or privilege hereunder or under the Loan Documents shall operate as
a waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise of any other right, power or privilege. Except as
prohibited by law, each party hereto hereby waives any right it may have to
claim or recover in any litigation referred to in this Section any special,
exemplary, punitive or consequential damages or any damages other than, or in
addition to, actual damages. Each party hereto (i) certifies that neither any
representative, agent or attorney of CoreStates has represented, expressly or
otherwise, that CoreStates would not, in the event of litigation, seek to
enforce the foregoing waivers and (ii) acknowledges that it has been induced to
enter into this Agreement or the Loan Documents, as applicable, by, among other
things, the mutual waivers and certifications herein.
(b) RAYMOND AND RAYMOND LEASING EACH HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE, AND COVENANT THAT IT WILL NOT ASSERT (WHETHER AS
PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN
RESPECT OF ANY ISSUE, CLAIM OR ACTION IN ANY WAY, lNVOLVING OR ARISING,
DIRECTLY OR INDIRECTLY, OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT
OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
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<PAGE>
9.6 Acknowledgments. Raymond and Raymond Leasing hereby acknowledge
that:
(a) each has been advised by counsel in the negotiation, execution and
delivery of this Agreement, the Notes and the other Loan Documents;
(b) CoreStates does not have any fiduciary relationship with Raymond
or Raymond Leasing and the relationship between CoreStates, on one hand, and
Raymond or Raymond Leasing, on the other hand, is solely that of debtor and
creditor; and
(c) no joint venture exists between or among Raymond, Raymond Leasing
and CoreStates.
9.7 Consent to Jurisdiction. (a) Raymond and Raymond Leasing hereby
irrevocably submit to the non-exclusive jurisdiction of any United States
federal or Pennsylvania state court sitting in Philadelphia in any action or
proceedings arising out of or relating to any Loan Documents and Raymond and
Raymond Leasing hereby irrevocably agree that all claims in respect of such
action or proceeding may be heard and determined in any such court and
irrevocably waives any objection it may now or hereafter have as to the venue of
any such action or proceeding brought in such a court or the fact that such
court is an inconvenient forum.
(b) Raymond and Raymond Leasing irrevocably and unconditionally
consent to the service or process in any such action or proceeding in any of
the aforesaid courts by the mailing of copies of such process to it by certified
or registered mail at its address specified in Section 9.1
9.8 Extension of Maturity. Except as otherwise expressly provided
herein, whenever a payment to be made hereunder shall fall due and payable on
any day other than a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time shall be included in
computing interest.
9.9 Modification of Agreement. No modification, amendment or waiver
of any provision of this Agreement or the Notes, nor consent to any departure by
Raymond or Raymond Leasing or any of their Subsidiaries therefrom shall in any
event be effective unless the same shall be in writing and signed by CoreStates
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice to or demand on Raymond or
Raymond Leasing or any of their Subsidiaries in any case shall entitle Raymond
or Raymond Leasing or any of their Subsidiaries, as the case may be, to any
other or further notice or demand in the same, similar or other circumstance.
9.10 Participations and Assignments. (a) Neither Raymond nor Raymond
Leasing may assign or transfer any of its interests under this Agreement, the
Notes or the Loan Documents.
(b) CoreStates reserves the right to grant participations in or to
sell and assign its rights, duties or obligations with respect to the Loans or
the Commitment to such banks, lending institutions or other parties as it may
choose, including, without limitation, any Federal Reserve Bank in accordance
with applicable law and without the consent of Raymond or Raymond Leasing, which
consent is deemed to be granted.
9.11 Reinstatement: Certain Payments. If claim is ever made upon
CoreStates for repayment or recovery of any amount or amounts received by
CoreStates in payment or on account of any of the obligations under this
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Agreement, CoreStates shall give prompt notice of such claim to Raymond or
Raymond Leasing, as applicable, and if CoreStates repays all or part of said
amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over CoreStates or any of its property,
or (ii) any settlement or compromise of any such claim effected by CoreStates
with any such claimant, then and in such event Raymond or Raymond Leasing, as
applicable, agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon Raymond or Raymond Leasing notwithstanding the
cancellation of the Notes or other instrument evidencing the obligations under
this Agreement or the termination of this Agreement, and Raymond or Raymond
Leasing, as applicable, shall be and remain liable to CoreStates hereunder for
the amount so repaid or recovered to the same extent as if such amount had never
originally been received by CoreStates.
9.12 Right of Setoff. In addition to any rights and remedies of
CoreStates provided by law, CoreStates is hereby authorized at any time and from
time to time, without prior notice to Raymond or Raymond Leasing (any such
notice being expressly waived by Raymond and Raymond Leasing) to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by CoreStates to or for the credit or the account
of Raymond or Raymond Leasing against any of and all the obligations of Raymond
and Raymond Leasing now and hereafter existing under this Agreement and the Note
held by CoreStates, irrespective of whether or not CoreStates shall have made
any demand under this Agreement or the Note and although such obligations may be
in any currency, direct or indirect, absolute or contingent, matured or
unmatured. CoreStates agrees to promptly notify Raymond and Raymond Leasing
after any such setoff and application made by CoreStates, but the failure to
give such notice shall not affect the validity of such setoff and application.
The rights of CoreStates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of setoff) which
CoreStates may have.
9.13 Severability. In case any one or more of the provisions contained
in this Agreement or in the Notes should be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired thereby.
9.14 Counterparts. This Agreement 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 instrument.
9.15 Entire Agreement; Cumulative Remedies.
(a) This Agreement and the other Loan Documents constitute the entire
agreement among the parties hereto and thereto as to the subject matter hereof
and thereof and supersede any previous agreement, oral or written, as to such
subject matter.
(b) The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
9.16 Headings. Section headings used herein are for convenience of
reference only and are not to affect the construction of or be taken into
consideration in interpreting this Agreement.
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9.17 Exhibits and Schedules. Exhibits A and B, and Schedules 1 through
4 shall constitute an integral part of this Agreement.
IN WITNESS WHEREOF, The Raymond Corporation, Raymond Leasing
Corporation and CoreStates Bank, have caused this Agreement to be duly executed
by their duly authorized officers, all of the day and year first above written.
THE RAYMOND CORPORATION
By: /s/
-----------------------------------
Title: Executive Vice President
RAYMOND LEASING CORPORATION
By: /s/
-----------------------------------
Title: President & General Manager
CORESTATES BANK, N.A.
By: /s/
-------------------------------
Amos N. Beason
Assistant Vice President
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REFERENCE TABLE OF DEFINITIONS
DEFINITION PAGE DEFINED
"As Offered" Fixed Rate Loan ................................... 1
Accumulated funding deficiency ................................. 31
Adjusted Eurodollar Rate ....................................... 1
Affiliate ...................................................... 2
Agreement ...................................................... 1
As Offered Fixed Rate .......................................... 1
Bank ........................................................... 1
Borrowing Date ................................................. 2
Business Day ................................................... 2
Capitalized Lease Obligation ................................... 2
Chief Financial Officer ........................................ 2
Closing Date ................................................... 2
Closing Fee .................................................... 13
Code ........................................................... 2
Commitment ..................................................... 9
Commitment Fee ................................................. 13
Commonly Controlled Entity ..................................... 3
Consolidated Adjusted Net Income ............................... 3
Consolidated Current Assets .................................... 3
Consolidated Current Liabilities ............................... 4
Consolidated Interest Expense .................................. 4
Consolidated Net Income Available for Interest Charges ......... 4
Consolidated Tangible Net Worth ................................ 4
Consolidated Total Unsubordinated Liabilities .................. 4
Contractual Obligation ......................................... 4
Control ........................................................ 2
Controlled group ............................................... 5
Conversion Request ............................................. 10
CoreStates ..................................................... 1
CoreStates Bank ................................................ 1
Default ........................................................ 4
EBIT ........................................................... 4
EBITDA ......................................................... 4
Environmental Laws ............................................. 5
ERISA .......................................................... 5
ERISA Affiliate ................................................ 5
Eurocurrency liabilities ....................................... 2
Eurocurrency liability ......................................... 2
Eurodollar Rate ................................................ 2
Eurodollar Rate Loan ........................................... 5
Eurodollar Reserves ............................................ 2
Event of Default ............................................... 30
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Executive Officer ........................................ 5
Expiration Date .......................................... 11
FASB ..................................................... 9
Funded Debt .............................................. 5
Generally Accepted Accounting Principles ................. 9
Governmental Authority ................................... 5
Guarantee ................................................ 26
Hazardous Materials ...................................... 5
Indebtedness ............................................. 6
Indemnities .............................................. 34
Insolvency ............................................... 6
Insolvent ................................................ 6
Interest Charges ......................................... 6
Interest Payment Date .................................... 6
Interest Period .......................................... 6
Investment company ....................................... 20
Loan Documents ........................................... 7
Loan(s) .................................................. 7
Margin stock ............................................. 19
Material Adverse Effect .................................. 7
Multiemployer Plan ....................................... 7
Note(s) .................................................. 7
Notice of Borrowing ...................................... 10
Operating Agreement ...................................... 7
PBGC ..................................................... 7
Person ................................................... 7
Plan ..................................................... 7
Prime Rate ............................................... 7
Prohibited transaction ................................... 31
Properties ............................................... 19
Raymond .................................................. 1
Raymond Leasing .......................................... 1
Raymond Working Capital .................................. 7
Reportable Event ......................................... 7
Revolving Credit Loan .................................... 9
Revolving Credit Loans ................................... 9
Revolving Credit Note .................................... 10
Senior Indebtedness ...................................... 8
Short Term Indebtedness .................................. 8
Single Employer Plan ..................................... 8
Statutory Reserves ....................................... 8
Subordinated Debt or Indebtedness ........................ 8
Subsidiary ............................................... 8
Term Loan ................................................ 10
Term Note ................................................ 11
Termination Date ......................................... 8
Type ..................................................... 8
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Unconsolidated Investees ................................. 8
Unfunded Current Liability ............................... 9
Working Capital .......................................... 9
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SCHEDULE I
Notice of Borrowing (or Conversions)
To: CoreStates Bank, N.A. Dated:____________
Reference is made to the Credit Agreement dated November 27, 1995 (the
"Credit Agreement") between CORESTATES BANK ("CoreStates" or "CoreStates Bank")
and THE RAYMOND CORPORATION AND RAYMOND LEASING CORPORATION. Unless otherwise
defined herein, the terms defined in the Credit Agreement are used herein as so
defined.
The undersigned, an authorized officer of _______________ (the
"Borrower") hereby requests that a Loan be made to the Borrower and certifies
in accordance with the provisions of Section 2.1 or Section 2.4 of the Credit
Agreement as follows:
1. The requested date for the funding of such Loan is ______________.
The amount of the proposed Loan is $______ and the outstanding
balances of all Loans, after giving effect to the proposed Loan, will be as
follows, which sums are and will be owed to CoreStates without any offsets or
defenses whatsoever:
A. Loans under Section 2.1 made by CoreStates Bank:
Borrower Balance
- -------- -------
The Raymond Corporation $___________
Raymond Leasing Corporation $___________
Total $___________
B. Loans made under Section 2.4 made by Corestates Bank:
Borrower Balance
- -------- -------
The Raymond Corporation $__________
Raymond Leasing Corporation $__________
Total $__________
2. The Borrower hereby elects in accordance with Section 2.3,
Section 2.7, Section 2.8 or Section 2.10 of the Credit Agreement, that
______________ of the Loan being requested shall be a __________________ Rate
Loan.
3. The amount requested should be credited to checking account number
which is currently maintained with CoreStates Bank. (Not to be completed in
cases of conversion. Instead, conversions should read, "The amount requested to
be converted is $_______.)
4. No Default or Event of Default has occurred or would result from
such Loan.
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5. No material adverse change has occurred in the condition of the
Borrower which would substantially impair the Borrower's ability to carry on its
business.
6. The representations and warranties contained in Article 3 of the
Credit Agreement are true and correct on and as of the date of this
Certificate, and will be true and correct on and as of the date of the
requested Loan, as though made on and as of such dates. With respect to
Section 3.3, all additional borrowings and repayments under existing credit
arrangements have been adequately reflected in the Borrower's financial
statements. With respect to Section 3.12, there have been no material
developments which increase Borrower's environmental exposure.
[THE RAYMOND CORPORATION]
[RAYMOND LEASING CORPORATION]
By:
-------------------------------------------
Title:
2
<PAGE>
SCHEDULE 2
Subsidiaries and Affiliates
List of Subsidiaries of Raymond
Name of Subsidiary % Owned Incorporation
- ------------------ ------- -------------
Corporacion Raymond de Mexico, S.A. de C.V. 100% Mexico
The Raymond Export Corporation 100% U.S. Virgin Islands
R. H. E. Ltd. 100% Canada
Raymond Industrial Equipment, Limited * 100% Canada
Raymond Leasing Corporation 100% Delaware
Raymond Production Systems Corporation 100% California
Raymond Sales Corporation 100% New York
Dockstocker Corporation ** 100% New York
Heubel Material Handling, Inc. ** 94% Missouri
Raymond Accounts Management, Inc. ** 100% New Jersey
Robert Abel & Co., Inc. ** 90% Massachusetts
Welch Equipment Company, Inc. ** 100% Colorado
Raymond Transportation Corporation 100% New York
- ------------------
* Owned by R.H.E. Ltd.
** Owned by Raymond Sales Corporation
List of Affiliates of Raymond
Name of Affiliate % Owned Incorporation
- ----------------- ------- --------------
G.N. Johnston Equipment Co., Ltd. * 45% Canada
Associated Material Handling Industries, Inc.** 47% Illinois
Carolina Handling, L.L.C. ** 30% North Carolina
Pengate Handling Systems, Inc. ** 30% Pennsylvania
Raymond Handling Concepts Corporation ** 49% California
Womack Material Handling Systems, Inc. ** 30% Connecticut
- ------------------
* Owned by R.H.E. Ltd.
** Owned by Raymond Sales Corporation
<PAGE>
List of Subsidiaries of Raymond Leasing
Name of Subsidiary % Owned Incorporation
- ------------------ ------- -------------
Raymond Rental Corporation 100% New York
Ready & Waiting, Inc. 100% Delaware
Ready & Waiting II, Inc. (1995) 100% Delaware
List of Affiliates of Raymond Leasing
Name of Affiliate % Owned Incorporation
- ----------------- ------- -------------
NONE
<PAGE>
SCHEDULE 3
No Default Certificate
To: CoreStates Bank, N.A.
Re: Credit Agreement with The Raymond Corporation and Raymond Leasing
Corporation.
Pursuant to the provisions of the Credit Agreement dated November 27,
1995 between The Raymond Corporation and Raymond Leasing Corporation and
CoreStates Bank, N.A., the undersigned, hereby certifies as the Chief Financial
Officer of [The Raymond Corporation or Raymond Leasing Corporation] as follows:
1. No Event of Default specified in Article 8 of the Credit Agreement
referred to above (the "Credit Agreement") and no event which,
pursuant to the provisions of Article 8 of the Credit Agreement
would, with a lapse of time and/or notice specified therein, become
such an Event of Default, has occurred or is continuing;
2. No material adverse change has occurred in the financial condition
of either The Raymond Corporation or Raymond Leasing Corporation
which would impair the ability of either corporation to carry on its
business; and
3. The representations and warranties contained in Article 3 of the
Credit Agreement continue to be true and correct.
[THE RAYMOND CORPORATION]
[RAYMOND LEASING CORPORATION]
By:
--------------------------------------------
Title:
<PAGE>
SCHEDULE 4
Liens
NONE
<PAGE>
EXHIBIT A
Revolving Credit Note
$10,000,000 Philadelphia, PA
November 27, 1995
FOR VALUE RECEIVED, the undersigned, [THE RAYMOND CORPORATION or
RAYMOND LEASING CORPORATION], a [New York or Delaware] corporation (the
"Borrower"), DOES HEREBY PROMISE to pay to the order of CORESTATES BANK, N.A.
("CoreStates" or "CoreStates Bank"), at the office of CoreStates at Broad and
Chestnut Streets, Philadelphia, PA 19101 on the Termination Date as defined in
the Credit Agreement (the "Credit Agreement") dated November 27, 1995 among
The Raymond Corporation, Raymond Leasing Corporation and CoreStates Bank, in
lawful money of the United States of America, in immediatelv available funds,
the principal amount of Ten Million Dollars ($10,000,000) or, if less than
such principal amount, the aggregate unpaid principal amount of all Revolving
Credit Loans (as defined in Section 2.1 of the Credit Agreement) made by
CoreStates to the Borrower pursuant to the Credit Agreement, and to pay
interest from the date hereof on the unpaid principal amount hereof, in like
money, at said office, on the dates and at the rates selected in accordance
with Article 2 of the Credit Agreement and, upon default, on demand from time
to time, on any overdue principal and on any overdue charge or fee, and, to
the extent permitted by law, on any overdue interest, for each day from the
due date thereof, (by acceleration or otherwise) until such sum is paid in
full, at the rate in effect from time to time as described in the Credit
Agreement.
The obligations of the Borrower in regard to payment of the Loans
hereunder are several not joint with the [The Raymond Corporation or Raymond
Leasing Corporation], it being expressly agreed and understood that the
Borrower shall be liable to CoreStates for only the Loans and interest
accruing thereon made to the Borrower. Notwithstanding the foregoing, the
Borrower shall be jointly and severally liable for any commitment or facility
fees, increased costs, indemnities and expenses under the Credit Agreement and
for the perfomance of the terms and conditions of the Credit Agreement. Loans
incurred by [Raymond Leasing Corporation or The Raymond Corporation] under the
Credit Agreement shall reduce amounts available under the Credit Agreement and
this Note for borrowings by the Borrower.
This Note is a Revolving Credit Note referred to in Section 2.2 of the
Credit Agreement, and is subject to prepayment and acceleration of maturity as
set forth in the Credit Agreement.
[The Raymond Corporation or Raymond Leasing Corporation] hereby
waives presentment, demand, protest or notice of any kind in connection with
this Note.
Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Credit Agreement.
<PAGE>
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT REGARD TO PENNSYLVANIA OR FEDERAL
PRINCIPLES OR CONFLICT OF LAWS.
[THE RAYMOND CORPORATION]
[RAYMOND LEASING CORPORATION]
By:
--------------------------------------------
Title:
<PAGE>
EXHIBIT B
Term Note
$ Philadelphia, PA
-----------------
FOR VALUE RECEIVED, the undersigned, [THE RAYMOND CORPORATION or
RAYMOND LEASING CORPORATION], a [New York or Delaware] corporation (the
"Borrower"), DOES HEREBY PROMISE to pay to the order of CORESTATES BANK, N.A.
("CoreStates or "CoreStates Bank"), at the office of CoreStates at Broad and
Chestnut Streets, Philadelphia, PA 19101 in lawful money of the United States
of America, in immediately available funds, the principal sum of _________
DOLLARS ($___,000,000) in _____ equal consecutive quarterly installments of
principal payable on the last day of each calendar quarter and a final
installment in the amount of principal remaining unpaid which shall be due and
payable on ____________, 19__.
The Borrower also promises to pay interest on the unpaid principal
amount hereof in like money at such office from the date hereof until paid in
full on the dates and [at the rate of _______ percent (___ %) per annum at the
times provided in the Credit Agreement. dated November 27, 1995 between The
Raymond Corporation and Raymond Leasing Corporation and CoreStates Bank (as
amended, modified or supplemented from time to time, the "CREDIT AGREEMENT")]
[or] [at the rates selected in accordance with Article 2 of the Credit
Agreement, dated November 27, 1995 between The Raymond Corporation and Raymond
Leasing Corporation and CoreStates Bank (as amended, modified or supplemented
from time to time, the "CREDIT AGREEMENT"].
This Note is a Term Note as referred to in Section 2.5 of the Credit
Agreement and is subject to prepayment and acceleration of maturity as provided
in the Credit Agreement. Any prepayment shall be applied to principal in the
inverse order of maturity.
In case an Event of Default shall occur and be continuing, the
principal of and the accrued interest on this Note mav be declared to be due and
payable in the manner and with the effect provided in the Credit Agreement.
[The Raymond Corporation or Raymond Leasing Corporation] hereby waives
presentment, demand, protest or notice of any kind in connection with this Note.
Capitalized temis used but not defined herein shall have the
respective meanings assigned to them in the Credit Agreement.
<PAGE>
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT REGARD TO PENNSYLVANIA OR FEDERAL
PRINCIPLES OR CONFLICT OF LAWS.
[THE RAYMOND CORPORATION]
[RAYMOND LEASING CORPORATION]
By:
-------------------------------------
Title:
<PAGE>
EXHIBIT 10.11
CONSULTING AGREEMENT
AGREEMENT made as of this 2nd day of January, 1996, between CHRISTIAN
D. GIBSON (hereinafter called "Gibson") and THE RAYMOND CORPORATION (hereinafter
called "Corporation"):
WHEREAS, Gibson, who has for many years served the Corporation in a
research and development and engineering capacity as vice president, and having
attained normal retirement age under the Corporation's retirement plan, and
retired effective December 31, 1979; and
WHEREAS, the Corporation considers it to be in its best interest to
induce Gibson to serve in the capacity of an independent consultant in order to
give the Corporation and its management the continuing benefit of his experience
and knowledge; and
WHEREAS, Gibson is willing to make his services available to the
Corporation and its subsidiaries in such advisory capacity on the terms and
conditions hereinafter set forth,
IT IS THEREFORE AGREED, as follows:
(1) General
Gibson will make his services available to the Corporation and
to its subsidiaries as an independent consultant with respect to research and
development, engineering and related activities.
(2) Gibson agrees to make available thirty (30) working days in each
year during the term of this Agreement, it being understood that he will be free
to arrange his own time and pursuits and will not be required to observe any
routine or particular hours for the performance of such services.
Gibson's working time for the performance of the services
hereunder shall be arranged by the parties hereto with reasonable notice to
Gibson who shall keep the Corporation informed as to his availability.
<PAGE>
It is understood and agreed that such services shall
constitute those of an independent contractor; that Gibson's services will be of
an advisory nature only; that he will have no power of decision with respect to
any matters which are the subject of consultation; and that he will not have or
exercise any responsibility in connection with the active management of the
Corporation.
(3) Term
The term of this Agreement is for one (1) year, commencing on
January 1, 1996 and ending on December 31, 1996.
(4) Compensation
The Corporation will pay to Gibson, and Gibson agrees to
accept for making himself available and for the performance of services
hereunder the sum of Six Thousand Dollars ($6,000) payable upon receipt of
invoices from Gibson.
The foregoing represents Gibson's entire compensation for
services to be performed under this Agreement. It is understood that as an
independent consultant, acting in an advisory capacity, existing and usual
employee fringe benefits are not available to him.
(5) Restrictive Covenant
Gibson expressly agrees as a condition of the performance by
the Corporation of its obligations hereunder that he will not during the term of
this Agreement, directly or indirectly render any services of an advisory nature
to, or become employed by, or participate or engage in any business competitive
with the business of the Corporation or of its subsidiaries as an agent,
director, consultant or otherwise; provided, however, that nothing herein
contained shall prohibit Gibson from owning stock or other securities of a
competitor which are listed on an exchange. Gibson may, however, render services
or engage in business activities which do not conflict with the purpose and
intent of this paragraph, it being understood that Gibson will use his best
efforts to schedule such other activities so as not to interfere with his
availability under this Agreement.
<PAGE>
(6) Miscellaneous
The Corporation will make available to Gibson such office
accommodation, secretarial and other assistance as may reasonable be required by
him in the performance of services hereunder. Reasonable expenses incurred by
Gibson in the performance of services hereunder will be reimbursed by the
Corporation upon presentation of an account of such expenses.
(7) Effective Date
This Agreement shall become effective and binding upon the
parties as of the 1st day of January, 1996.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
THE RAYMOND CORPORATION
By: /s/ Ross K. Colquhoun
-------------------------------------
Ross K. Colquhoun.
Chairman of the Board & C.E.O.
By /s/ Christian D. Gibson
-------------------------------------
Christian D. Gibson
<PAGE>
EXHIBIT 10.12
CONSULTING AGREEMENT
THIS AGREEMENT has been made this _29th__ day of February, 1996, by and
between GEORGE G. RAYMOND, JR. ("Raymond") a resident of Naples, Florida, and
THE RAYMOND CORPORATION, a New York corporation having its place of business in
Greene, New York (hereinafter the "Company").
WHEREAS, the Company desires to retain the consulting services of
Raymond and Raymond desires to provide such services to the Company in the
manner and on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, promises and agreements herein contained, and for good and other
valuable consideration, receipt of which is hereby acknowledged, the parties do
agree as follows:
1. Defined Terms. The defined terms used in this Agreement (as
indicated by the first letter of each such term being capitalized) shall, unless
the context clearly requires otherwise, have the meanings specified in this
Paragraph 1. The singular shall include the plural, and the masculine gender
shall include the feminine and neuter genders, as the context requires.
a. Agreement. This Consulting Agreement and any properly adopted
amendments thereto.
b. Board. The Board of Directors of the Company.
c. Change in Control. The happening of any of the following events:
<PAGE>
(1) the sale by the Company of substantially all its assets to a
single purchaser or to a group of affiliated purchasers;
(2) the sale, exchange or other disposition in one transaction or
a series of related transactions effectuated pursuant to be common plan
(including but not limited to sales, exchanges or other dispositions made over a
number of years) of at least thirty percent (30%) of the outstanding voting
shares of the Company, but excluding (a) any exchange occurring as a result of a
recapitalization of the Company; and (b) any exchange or disposition by any
greater than five percent (5%) shareholder (the "Shareholder") of his Common
Stock to (i) such Shareholder's spouse, or in trust for such spouse's benefit
with reversion to the Shareholder or remainder to or in trust for the benefit of
the Shareholder's issue; (ii) the Shareholder's issue or in trust for the
benefit of such issue with reversion to the Shareholder or for the benefit of
the Shareholder's spouse or issue; or (iii) any person who on the date of the
lifetime transfer would be a beneficiary of the Shareholder under the laws of
intestacy of the state of the Shareholder's domicile if the Shareholder died on
such date or any person who is such a beneficiary where the Shareholder has
died, whether such gift or bequest be outright or in trust for the sole benefit
of such person or such person's issue; or
(3) the merger or consolidation of the Company in a transaction
in which the shareholders of the Company receive less than fifty percent (50%)
of the outstanding voting shares of the new continuing corporation.
d. Disability. Raymond shall be deemed to have become disabled for
purposes of this Agreement if he is unable to perform his duties hereunder by
reason of physical or mental illness or injury for a period of twenty-four (24)
successive weeks. The determination shall be made by a physician selected by the
Company and a physician selected by Raymond; provided, however, that if the two
physicians so selected shall disagree, they shall jointly select a third
physician and the decision of said third physician shall be binding and
conclusive absent a showing of fraud or gross error on the part of the third
physician.
2
<PAGE>
2. Mutual Agreement of the Parties. The Company hereby agrees to retain
Raymond as a general business consultant and advisor with respect to the
operation of the Company, and Raymond hereby agrees to perform such consulting
services, for the period and on the terms and conditions set forth in this
Agreement.
3. Services. The Company engages Raymond as an independent contractor
and not as an employee. Consultant's duties hereunder shall be those of a
general advisor to management pertaining to the business of the Company and
Raymond shall perform such services as shall be reasonably assigned to him from
time to time by the Chief Executive Officer. Such duties shall be performed by
Raymond either at his residence in Naples, Florida, or at his summer residence
in Siasconset, Massachusetts. Raymond shall use his best efforts in the
performance of his duties hereunder and the advancement of the interests of the
Company. It is agreed between Raymond and the Company that in rendering
consulting services hereunder, Raymond shall not be required to render such
services under the supervision of any employee of the Company or at the
Company's place of business, but rather will work independently toward the
desired objective in any manner he deems appropriate to the end that he shall be
responsible to the Company only for the end result of his efforts and not for
the method or manner by which such result is achieved.
The Company recognizes that Raymond's associations, contacts,
experience and expertise developed over the years have created in Raymond a
marketplace advantage which is of unique value to the Company and will enable it
to expand upon its present operations and make them more profitable during the
term of this Agreement.
3
<PAGE>
4. Compensation. As compensation for services to the Company during the
term of this Agreement, the Company shall pay Raymond an annual fee of
$101,200.00, payable in substantially equal quarterly installments. The Company
shall promptly reimburse Raymond for all reasonable expenses incurred by him in
connection with the performance of his consulting responsibilities and duties.
5. Confidentiality. During the continuation of this consulting
relationship with the Company, and for the entire period during which payments
are being made pursuant to Paragraph 5 hereof, Raymond will not engage in, be
employed by, be a Director of or otherwise, directly or indirectly, interested
in any business or activity competing with or of a nature similar to the
business of the Company, and will not take part in any activities detrimental to
the best interest of the Company. However, nothing herein contained shall be
deemed to prohibit Raymond from providing services to or serving as a Director
for or otherwise interested, directly or indirectly, in any business or activity
which is a parent, subsidiary, partnership, other affiliated entity or successor
to the Company; and nothing herein contained shall be deemed to prohibit Raymond
from owning less than one percent (1%) of the issued and outstanding capital
stock of a corporation traded on any public exchange. Any violation of this
provision may, in the Company's discretion, he deemed an act of gross
misconduct.
6. Termination. This Agreement shall terminate and expire on December
31, 1996 except that this Agreement may sooner be terminated:
4
<PAGE>
a. At the Company's election in the event of gross misconduct or
willful and material breach of this Agreement by Raymond;
b. At the election of Raymond at any time following a Change in
Control;
c. Upon Raymond's disability;
d. Upon Raymond's death;
e. Upon the mutual written consent of the parties.
7. Obligations on Termination. In the event this Agreement is
terminated pursuant to paragraph 6 above, or in the event of termination
purportedly made or attempted by the Company's successor(s) other than pursuant
to paragraph 6(a), 6(c), 6(d) or 6(e) above, Raymond shall be entitled to his
compensation pursuant to paragraph 5 above through December 31 of the year in
which such termination occurs. All payments made pursuant to this paragraph
shall be made in substantially equal quarterly installments commencing with the
first day of the first month following the month in which termination occurs and
shall cease upon the earlier of the scheduled expiration date or upon Raymond's
death. All benefits shall be payable in accordance with the terms of the
Agreement and in accordance with the terms of the plans as maintained by the
Company as of the date of any Change in Control.
8. No Trust Fund. Nothing contained in this Agreement and no action
taken pursuant to the provisions of this Agreement shall create or be construed
to create a trust fund of any kind, or a fiduciary relationship between the
Company and Raymond, his designated beneficiary or any other person. To the
extent that any person acquires a right to receive payments from the Company
under this Agreement, such rights shall be no greater than the rights of any
unsecured general creditor of the Company.
5
<PAGE>
9. Notice. Any notice which may be given hereunder shall be sufficient
if in writing and mailed by registered or certified mail, return receipt
requested, to the Company and to Raymond at the following addresses:
The Raymond Corporation George G. Raymond, Jr.
P.O. Box 130 7920 Grand Bay Drive
Greene, New York 13778 Naples, Florida 33963
Attn: General Counsel
10. Status. Raymond is retained as an independent contractor and not as
an employee, agent or joint venturer.
11. Entire Agreement. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof. The
Agreement cannot be modified or extended except by a writing signed by the
parties hereto.
12. Legal Effect. The services to be performed by Raymond are special
and unique; it is agreed that any breach of this Agreement by Raymond shall
entitle the Company (or any successors or assigns of the Company), in addition
to any other legal remedies available to it, to apply to any court of competent
jurisdiction to enjoin such breach. This Agreement shall be binding upon and
shall inure to the benefit of the successors and assigns of the Company but
shall not be assignable by Raymond.
13. Construction of Agreement. The captions used in this Agreement are
for convenience only and shall not be construed in interpreting this Agreement.
14. Severability. If any provision of this Agreement or the application
thereof to any person or circumstances for any reason and to the extent it shall
be held invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereof, but rather are to be enforced to the greatest extent permitted
by law.
6
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first written above.
THE RAYMOND CORPORATION
By: /s/ Ross K. Colquhoun
----------------------------------
Chairman of the Board & CEO
By: /s/ George G. Raymond, Jr.
-----------------------------------
George G. Raymond, Jr.
<PAGE>
EXHIBIT 10.13
EMPLOYMENT AGREEMENT
Agreement, made as of the 3rd day of November, 1987, at Greene, New
York, between The Raymond Corporation, a New York corporation ("Raymond"), and
Ross K. Colquhoun ("Employee").
Employee has contributed substantially to the growth and success of
Raymond through his leadership of G.N. Johnston Equipment Co., Ltd. and as a
director of Raymond. Raymond now desires to retain his services as set forth
in this Agreement and to provide the necessary compensation to assure such
services.
Raymond and Employee therefore agrees as follows:
1. Employment. Raymond hereby employs Employee as President and Chief
Executive Officer or in such other senior executive position as the Board of
Directors and Employee shall mutually agree. Employee hereby accepts the
employment specified herein, agrees to perform the duties prescribed by the
Board of Directors, abide by the terms and conditions described in this
Agreement and to devote his best efforts and his full working time to the
interest and business of Raymond. Employee may devote a reasonable amount of
time to civic and community affairs. Employee shall not perform services for any
business organization except Raymond and its subsidiaries and affiliated
companies without the consent of the Board of Directors.
2. Term of Employment. The term of employment under this Agreement
shall commence on November 3, 1987 and shall continue until terminated by
Employee or Raymond in accordance with paragraph 8 or 10.
3. Compensation. During the term of employment, Raymond shall pay to
Employee a base salary at the rate of $225,000 per annum, or such greater
amount as the Board of Directors shall determine. Such salary shall be payable
in substantially equal monthly installments. Raymond may pay Employee a bonus
or other incentive compensation in such amount and at such time as the Board
of Directors shall determine. Employee shall be eligible to participate in
Raymond's Profit Sharing Plan and Deferred Compensation Plan. In addition,
Raymond shall provide Employee with other benefits, facilities, services and
perquisites generally available to Raymond executive officers and no less
favorable than those Employee is receiving from Raymond on the date of this
Agreement.
4. Pension and Supplemental Pension. Employee will be eligible for
coverage under Raymond's Pension Plan and, in addition, Raymond agrees to pay a
supplemental pension providing for monthly payments after retirement from
full-time employment with Raymond at age 65 of an annual benefit equal to 40% of
Employee's most recent base salary payable for Employee's life or at Employee's
option an equivalent total benefit with actuarily reduced monthly payments
payable to Employee during his life and that of his surviving spouse. Raymond
has purchased a whole life insurance policy with rights of conversion to an
annuity contract to fund such benefits at age 65. If Employee shall retire from
full-time employment with Raymond at age 62 or after, but prior to age 65, with
the approval of the board of Directors of Raymond, Employee shall be entitled to
a supplemental pension benefit in an amount equivalent to the annuity which can
be provided under said policy as of the date of early retirement. Raymond shall
not be obligated to maintain such policy to fund the supplemental pension.
Except as expressly provided herein and in paragraph 10, Employee shall have no
right to a supplemental pension benefit.
<PAGE>
5. Stock Options. As of March 5, 1988, Employee will be granted
options to purchase 19,700 shares of Raymond common stock with stock
appreciation rights in accordance with Raymond's Stock Option Plan (1984).
6. Restricted Stock.
(a) Employee will be granted common stock of Raymond in the
amounts of 51,165 shares as of November 3, 1987, restricted as provided herein
("Restricted Stock"). Employee shall, subject to the restrictions, have all the
rights of an owner of such shares, including the right to vote the shares and
receive dividends thereon.
(b) During the term of the restrictions:
(i) Employee may not sell, assign, transfer,
pledge, or otherwise dispose of or encumber any
shares of Restricted Stock;
(ii) Except following a Change of Control as
defined in paragraph 9, the Restricted Stock will
be returned to Raymond, and all rights of the
Employee to such stock terminated:
a) in the event Employee resigns other
than because of material breach of this Agreement
by Raymond; or
b) if Raymond terminated Employee's
employment for any reason except death or permanent
disability (as determined under Raymond's
disability insurance plan).
(iii) Following a Change of Control as defined in
paragraph 9, the Restricted Stock will be returned to
Raymond and all rights of the Employee to such stock
terminated only if Employee's employment is
terminated for Cause as defined by paragraph 8(d) and
10(b).
(c) The restrictions set forth above shall lapse as
follows:
(i) If Employee remains in the continuous
employment of Raymond until November 3, 1989.
(ii) If Employee's employment is terminated by
death or permanent disability (as determined under
Raymond's disability insurance plan) then the
restrictions shall lapse as if Employee remained in
continuous employment through November 3, 1989.
(iii) All restrictions shall lapse if Employee's
employment is terminated following a Change in
Control as defined in paragraph 9 except if
termination is for Cause as defined in paragraph
8(d) and 10(b).
7. Loan. Raymond shall loan to Employee an amount equal to the
estimated increase, if any, in Employee's income tax caused by reason of said
award of common stock (the "Loan"). The Loan shall be made at such time or times
as said increase in tax shall be due and all or part of the proceeds of the Loan
may be used to satisfy any withholding requirements applicable to Raymond under
federal, state or local law. The Loan shall bear simple interest at the
applicable Federal rate provided in section 7872(f)(2) of the Internal Revenue
Code and shall be repayable over a five (5) year period in five (5) equal annual
installments of principal, plus accrued interest. The Loan shall be forgiven in
the event Employee's employment is terminated by Raymond except for termination
for Cause as defined herein a paragraph 8(d) and 10(b). The Loan shall be
forgiven on the occurrence of an Event or Termination pursuant to paragraph 10.
<PAGE>
8. Termination.
(a) Employee or Raymond may terminate this Agreement at
will.
(b) In either of the following events:
(i) Employee shall resign from the employ of
Raymond for any reason prior to a Change in Control
as defined in paragraph 9 except because of a
material breach of this Agreement by Raymond; or
(ii) Raymond terminates Employee's employment for
Cause (as defined in subparagraph (d) below); or
(iii) death or permanent disability (as determined
under Raymond's disability insurance plan);
then Employee shall not be entitled to further compensation or stock awards
under this Agreement except as expressly provided herein.
(c) In the event that (other than following a Change in
Control) Raymond terminates Employee's employment for other than Cause of
defined in paragraphs 8(d), or if Employee resigns because of a material breach
of this Agreement by Raymond, then Employee shall receive an amount equal to
Employee's then current base salary under paragraph 3 payable in twelve
substantially equal monthly installments beginning in the second full month
following termination and all other vested benefits. To the extent that Employee
earns or receives compensation or benefits from other employment during the
twelve-month period, the payments and benefits to be provided by Raymond under
this section shall be correspondingly reduced, except that Employee shall be
entitled to no less than six monthly payments. Raymond shall continue to provide
at its expense medical, dental and life insurance under Raymond plans or with
benefits equivalent to Raymond's plans then in effect at the date of termination
for twelve months following termination.
(d) For purposes of this Agreement, "Cause" shall mean:
(i) any material misappropriation of funds or
property of Raymond by Employee;
(ii) unreasonable and persistent neglect or refusal
by Employee to perform his duties as provided in
paragraph 1 hereof; and
(iii) conviction of Employee of a felony.
9. Change of Control. The term Change of Control of Raymond shall mean
a change of control of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934 or, if Item 6(e) is no longer in effect, any
regulations issued by the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934 which serves similar purposes; provided that,
without limitation, such a Change of Control shall be deemed to have occurred if
and when (a) any "person" (as such term is used in Sections (13(d) and 14(d) (2)
of the Securities Exchange Act of 1934) other than George Raymond, Jr. is or
becomes a beneficial owner, directly or indirectly, of securities of Raymond
representing 25% or more of a combined voting power of Raymond's then
outstanding securities or (b) individuals who were members of the Board of
Directors of Raymond immediately prior to a meeting of the shareholders of
Raymond involving a contest for the election of directors shall not constitute a
majority of the Board of Directors following such election.
<PAGE>
10. Termination in the Event of a Change of Control.
(a) "Event(s) of Termination" as used herein are:
(i) terminated by Raymond following a Change of
Control except a termination for Cause, death or
permanent disability (as determined under Raymond's
disability insurance plan).
(ii) termination by Employee at Employee's
discretion within twenty four months following a
Change of Control, except in circumstances where
Raymond terminates Employee for Cause or employee
is eligible for retirement on or after age 65.
(b) Following a Change of Control Employee may not be
terminated for Cause for a refusal to accept:
(i) a significant change in the nature of scope of
the Employee's authority or duties from those in
effect immediately prior to a Change in Control
including a change in status, offices, titles and
reporting requirements.
(ii) a requirement that Employee be based at any
office or location other than that at which
Employee is based immediately prior to a Change of
Control.
(c) On an Event of Termination, Employee shall be entitled to
the following payments ("Termination Payments") and benefits:
(i) an amount equal to 2.99 times Employee's
"Annualized Includible Compensation for Base
Period" as defined in Section 280G of the Internal
Revenue Code as of the date of termination,
provided, however, said amount shall be reduced to
the extent necessary to avoid Employee being deemed
to have received an "Excess Parachute Payment" as
defined in Section 280G of the Internal Revenue
Code. The amount will be paid in thirty-six equal
monthly installments beginning the first day of the
first month following the Event of Termination.
Raymond and Employee may agree on payment in a lump
sum or in fewer than 36 payments. In the event of
Employee's death, any remaining payments will be
made in a lump sum to Employee's legal
representative in the month following death;
(ii) Any amounts otherwise payable under this
Agreement in the calendar year in which the Event
of Termination occurs for services rendered prior
to such Event under existing Raymond compensation
or benefits plans which are not includable in
"Annualized Includable Compensation" and would not
cause Employee to receive an "Excess Parachute
Payment"; and
(iii) Life, medical, dental, travel, accident and
disability insurance in amounts and with benefits
equivalent to those in effect for Employee on the
Event of Termination, for a period of three years
form the Event of Termination.
(d) Upon an Event of Termination, Raymond shall purchase for
Employee an annuity contract from a major national insurance company authorized
to issue such contracts in the state of New York or fully pay and convert to an
annuity any life insurance policy then in effect sufficient to pay to Employee a
supplemental pension benefit in an amount and on the terms provided in paragraph
4 of this Agreement as if Employee had been continuously employed by Raymond
until age 65. At or after age 62 Employee shall have the option of taking an
actuarily reduced benefit under said contract.
<PAGE>
(e) Amounts payable hereunder shall not be reduced by reason
of any compensation or benefits received by employee from a subsequent employer.
11. Competition and Confidential Information.
(a) Employee agrees that for two years after the termination
of his employment he will not, without prior written consent of Raymond,
directly or indirectly, as a principal, officer, director, stockholder (except
as the owner of less than 5% of the stock of a company whose stock is publicly
traded), partner, employee or in any other capacity whatsoever, engage in or
become associated with, or advise or assist, any business or enterprise which is
engaged in providing any goods or services that are competitive with any goods
or services that are or may at any time in the period be offered by Raymond. For
the purposes of this paragraph, a business or enterprise shall be deemed to be
engaged in providing goods or services that are competitive with any goods or
services offered by Raymond if the Board of Directors of Raymond so determines.
(b) Employee agrees that unless duly authorized in writing by
Raymond, he will neither during his employment by Raymond nor at any time
thereafter disclose or use directly or indirectly any trade secrets or
confidential or proprietary information of Raymond.
12. Withholding. Raymond may withhold from any amounts due Employee
under this Agreement such amounts as may be required under applicable federal,
state or local tax laws.
13. Funding. Raymond may in its discretion establish a trust to fund
any of the payments which are or may become payable to Employee under this
Agreement.
14. Notice. Any and all notices referred to herein shall be
sufficient if furnished in writing and sent by registered mail to the parties.
15. Transferability. The rights and benefits of Raymond under this
Agreement shall be transferable and all covenants and agreements hereunder
shall inure to the benefit of and be enforceable by or against its successors
and assigns. Whenever the term "Raymond" is used in this Agreement, such term
shall mean and include The Raymond Corporation and its successors and assigns.
The rights and benefits of Employee under this Agreement shall not be
transferable other than by will or the laws of descent and distribution.
16. Waiver. Any waiver of any breach of any of the terms of this
Agreement shall not operate as a waiver of any other breach of such terms or
conditions of any other such terms or conditions, nor shall any failure to
enforce any provision hereof operate as a waiver of such provision or of any
other provision hereof.
17. Severability. If any provision of this Agreement or the
application thereof is held invalid or unenforceable, the invalidity or
unenforceability thereof shall not affect any other provisions of this
Agreement which can be given effect without the invalid or unenforceable
provision, and to this end the provisions of this Agreement are to be
severable.
18. Choice of Law and Jurisdiction. The Agreement shall be governed
and continued in accordance with the laws of the State of New York, without
reference to principles of conflict of laws. Employee hereby consents to the
personal jurisdiction of the Courts of the State of New York and the United
States District Court for the Northern District of New York for purposes of
resolving any dispute arising out of this Agreement.
19. Modification. This Agreement may not be amended or modified
except in writing, executed by the parties or their respective successors or
legal representatives.
20. This agreement is entered into subject to approval by the
shareholders of Raymond at its 1988 annual meeting.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
The Raymond Corporation
By /s/ George G. Raymond, Jr.
George G. Raymond, Jr.
Chairman of the Board of Directors
/s/ Ross K. Colquhoun
Ross K. Colquhoun
Employee
<PAGE>
EXHIBIT 10.15
AMENDMENT #2 TO EMPLOYMENT AGREEMENT
This Agreement made as of the first day of November, 1995, by and
between Ross K. Colquhoun, (hereinafter referred to as "Employee") and The
Raymond Corporation, a New York Corporation, with a principal place of business
at Greene, New York (hereinafter referred to as "Raymond").
WHEREAS, Employee and Raymond are presently parties to an Employment
Agreement dated November 3, 1987 (hereinafter referred to as "Employment
Agreement") and an amendment thereto dated June 14, 1994, and
WHEREAS, to permit Employee greater flexibility in financial planning,
Raymond has decided to amend the existing Employment Agreement to restate
paragraph 4 to increase the number of payment options available and to include
the annual benefit percentage contained in Amendment #1,
NOW THEREFORE, in consideration of the mutual promises contained herein
and in the Employment Agreement, the parties agree to delete paragraph 4 of said
Agreement and restate it as follows:
4. Pension and Supplemental Pension
Employee will be eligible for coverage under Raymond's Pension
Plan and, in addition, Raymond agrees to pay a supplemental pension providing
for monthly payments at age 65 of an annual benefit equal to 50% of Employee's
most recent base salary payable for Employee's life or at Employee's option
either a) an equivalent total benefit with actuarially reduced monthly payments
payable to Employee during his life and that of his estate or b) a Life Annuity
Period Certain included in the Life Income Option. Raymond has purchased a whole
life insurance policy with rights of conversion to an annuity contract to
partially fund such benefits at age 65, which shall be paid whether or not
Employee continues in employment past age 65. If Employee shall retire from
full-time employment with Raymond at age 62 or after, but prior to age 65, with
the approval of the Board of Directors of Raymond, Employee shall be entitled to
a supplemental pension benefit in an amount equivalent to the annuity which can
be provided under said policy as of the date of early retirement. Raymond shall
not be obligated to maintain such policy to partially fund the supplemental
pension. Except as expressly provided herein and in paragraph 10, Employee shall
have no right to a supplemental pension benefit.
<PAGE>
The parties hereto agree that except as amended herein, the Employment
Agreement, as amended, continues in full force and effect and sets forth the
entire understanding of the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
1st day of November, 1995.
THE RAYMOND CORPORATION
By /s/ William B. Lynn
-------------------------------
William B. Lynn
Executive Vice President
/s/ Ross K. Colquhoun
------------------------------------
Ross K. Colquhoun
<PAGE>
EXHIBIT 10.17
THE RAYMOND CORPORATION
RETIREMENT BENEFITS EQUALIZATION PLAN
(non-qualified)
Restated as of January 1, 1995
------------------------------
as Amended through April 29, 1995
---------------------------------
<PAGE>
THE RAYMOND CORPORATION
RETIREMENT BENEFITS EQUALIZATION PLAN
(non-qualified)
ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.1 DEFINITIONS
Terms not otherwise defined herein shall have the following meanings:
"Board of Directors" means the Board of Directors of the Employer.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Committee" means the person or persons designated by the Employer
pursuant to Section 3.1 to administer the Plan on behalf of the Employer.
"Employee" means an employee of the Employer who is a member of a
selected group of management employees or a highly compensated employee, as
those terms are used in ERISA.
"Employer" means The Raymond Corporation, a corporation with its
principal offices in the State of New York, any designated corporate subsidiary,
and any successor which shall maintain this Plan.
"Pension Plan" means The Raymond Corporation Pension Plan and any
amendment thereto and any successor plans.
"Plan" means this instrument, including all amendments thereto, known
as THE RAYMOND CORPORATION RETIREMENT BENEFITS EQUALIZATION PLAN.
<PAGE>
"Profit-Sharing Plan" means the Profit-Sharing Retirement Plan for
Salaried Employees of The Raymond Corporation - Plan B, any amendments thereto
and any successor plan.
ARTICLE II
PURPOSE
2.1 PURPOSE OF THE PLAN
The propose of this Plan is to restore to eligible Employees the
benefits which are unable to be paid from the Pension Plan and Profit-Sharing
Plan due to section 415 and 401(a)(17) of the Code and due to a continuation of
employment beyond normal retirement age.
ARTICLE III
ADMINISTRATION
3.1 ASSIGNMENT AND DESIGNATION OF ADMINISTRATIVE AUTHORITY
The Employer may appoint one or more members to the Benefits
Equalization Plan Committee. Any person, including, but not limited to, the
directors, shareholders, officers, and Employees of the Employer, shall be
eligible to serve on the Committee. Any person so appointed shall signify
acceptance by filing a written acceptance with the Employer. A member of the
Committee may resign by delivering a written resignation to the Employer or be
removed by the Employer by delivery of a written notice of removal, to take
effect at a date specified therein, or upon delivery to the member if not date
is specified.
The Employer, upon resignation or removal of a Committee member, shall
promptly designate in writing a successor. If the Employer does not appoint a
successor and there is no member remaining on the Committee, the Employer will
administer the Plan and will become the Committee.
<PAGE>
3.2 ALLOCATION AND DELEGATION OF RESPONSIBILITIES
If more than one person is appointed to the Committee, the
responsibilities of each member may be specified by the Employer and accepted in
writing by each member. In the event that no such delegation is made by the
Employer, the Committee may allocate the responsibilities among themselves, in
which event the Committee shall notify the Employer in writing of such action
and specify the responsibilities of each member. The Employer thereafter shall
accept and rely upon any documents executed by the appropriate member until such
time as the Employer or the Committee files with the Employer a written
revocation of such designation.
3.3 POWERS, DUTIES AND RESPONSIBILITIES
The primary responsibility of the Committee is to administer the Plan
for the exclusive benefit of the eligible Employees and their beneficiaries,
subject to the specific terms of the Plan. The Committee shall administer the
Plan in accordance with its terms and shall have the power to determine all
questions arising in connection with the administration, interpretation, and
application of the Plan. Any such determination by the Committee shall be
conclusive and binding upon all persons. The Committee may correct any defect,
supply any information, or reconcile any inconsistency in such manner and to
such extent as shall be deemed necessary or advisable to carry out the purpose
of this Plan; provided, however, that any interpretation or construction shall
be done in a nondiscriminatory manner. The Committee shall have all powers
necessary or appropriate to carry out administrative duties under this Plan.
<PAGE>
The Committee shall be charged with the duties of the general
administration of the Plan, including, but not limited to, the following:
(a) to determine all questions relating to the eligibility of Employees
to participate in the Plan;
(b) to compute, the amount and the kind of benefits to which any
eligible Employee shall be entitled hereunder;
(c) to maintain all necessary records for the administration of the
Plan;
(d) to interpret the provisions of the Plan and to make and publish
such rules for regulation of the Plan as are consistent with the terms hereof;
and
(e) to assist any Employee regarding rights, benefits, or elections
available under the Plan.
3.4 RECORDS AND REPORTS
The Committee shall keep a record of all actions taken and shall keep
all other books of account, records and other data that may be necessary for
proper administration of the Plan and shall be responsible for supplying all
information and reports to the Employer, eligible Employees and their
beneficiaries.
3.5 APPOINTMENT OF ADVISORS
The Committee, may appoint counsel, specialists, and advisors, and
other persons as the Committee deems necessary or desirable in connection with
the administration of this Plan.
<PAGE>
3.6 INFORMATION FROM EMPLOYER
To enable the Committee to perform these functions, the Employer shall
supply full and timely information to the Committee on all matters relating to
the compensation of all eligible employees, their retirement, death, disability,
or termination of employment, and such other pertinent facts as the Committee
may require. The Committee may rely upon such information as is supplied by the
Employer and shall have not duty or responsibility to verify such information.
3.7 PAYMENT OF EXPENSES
All expenses of administration shall be paid out of the general assets
of the Employer. Such expenses shall include any expenses incident to the
functioning of the Committee, including, but not limited to, fees of
accountants, counsel, and other specialists, and other costs of administering
the Plan.
3.8 MAJORITY ACTIONS
Except where there has been an allocation and delegation of
administrative authority pursuant to Section 3.2, if there shall be m ore than
one member on the Committee, they shall act by a majority of their number, but
may authorize one or more of them to sign all papers on their behalf.
ARTICLE IV
ELIGIBILITY
4.1 ELIGIBILITY
All Employees eligible to participate in the Employer's Pension Plan
and Profit-Sharing Plan and their beneficiaries are eligible to receive benefits
under this Plan as provided in Article 5, but subject to the vesting provisions
contained in the Pension Plan and the Profit Sharing Plan.
<PAGE>
ARTICLE V
BENEFITS
5.1 BENEFITS
The benefits payable under this Plan shall be determined as follows:
Pension Plan (a) The monthly benefit is (i) calculated under the Pension Plan
definitions, but without regard to the limitations on benefits
imposed by Section 415 of the Code and the limitation on
includible compensation imposed by Section 401(a)(17) of the Code
and by including any amount of compensation deferred under the
Employer's Deferred Compensation Plan, and from the monthly
amount so determined under (I) is subtracted (ii) the actual
amount of monthly benefit to which the Employee is entitled under
the Pension Plan. The calculation in (I) and (ii) shall use the
same form of benefit, and to the extent that the amount payable
from the Pension Plan is increased or decreased (e.g., due to
changes in the relevant limits), the amount payable from this
Plan shall decrease or increase accordingly.
(b) The benefits in (a) is to be paid monthly as long as benefits
are paid from the Pension Plan.
<PAGE>
(c) Another benefit is payable from this Plan in the event an
Employee defers retirement beyond normal retirement age under the
Pension Plan. For each month of such deferred retirement, the
Employee shall be paid the amount of benefit which would
otherwise have been paid to the Employee from the Pension Plan
and this Plan had the Employee retired on the Employee's normal
retirement date under the Pension Plan. This benefit shall be
paid at the same time benefits commence under the Pension Plan
and for the same number of months by which retirement was
deferred.
Profit- An amount shall be calculated and paid to the Employee in a
Sharing single sum that will equal the amount of Employer contributions
Plan to the Profit-Sharing Plan each year which could not be made each
year due to the limitation imposed by Section 415 and 401(a)(17)
of the Code, plus a rate of return on such amount equal to the
rate of return earned in the Employee's account in the
Profit-Sharing Plan over the relevant periods of time, as if such
funds had in fact been contributed to the Profit-Sharing Plan and
had been invested in the same fashion as the fund actually
contributed. This amount shall be paid during the first quarter
of the calendar year following the year of separation from
service. In the event of the Employee's death prior to payment,
payment shall be distributed to the Employee's surviving spouse,
if applicable. If there is no spouse, the distribution may be
made to a beneficiary if the Employee has filed with the
Administrative Committee a form designating a beneficiary. If no
beneficiary has been designated, the distribution shall be made
to the Employee's estate.
5.2 FORM OF BENEFITS
The benefits payable with respect to the Pension Plan shall be paid in
the form of a single life annuity if the Employee is unmarried at the time
payment commences and in the form of a joint and 50 percent spousal survivor
annuity if the Employee is married, except for the benefit due to deferred
retirement which will be calculated in the form of a single life annuity
regardless of marital status.
If a benefit is to commence prior to the Employee's normal retirement
date, the benefit from this Plan shall be adjusted in the same manner as
provided for in the Pension Plan.
If an Employee dies after the early retirement date provided in the
Pension Plan while still employed by the Employer leaving a surviving spouse,
said spouse shall be entitled to a monthly lifetime benefit equal to one-half of
the benefit the Employee would have received had the Employee retired on a joint
and 50 percent spousal survivor annuity on the first of the month before the
date of death.
5.3 BENEFITS UNFUNDED
The benefits payable under this Plan shall be paid by the Employer each
year out of assets which at all time shall be subject to the claims of the
Employer's general creditors. The Employer may in its discretion establish a
trust in which to place assets from which such benefits are to be paid on behalf
of some or all Employees, as determined by the Administrator in its sole
discretion, but neither the creation of such trust nor the transfer of funds to
such trust shall render such assets unavailable to settle the claims of the
Employer's creditors. An Employee shall possess the status of an unsecured
general creditor of the Employer.
<PAGE>
ARTICLE VI
AMENDMENT AND TERMINATION
6.1 AMENDMENT
This Plan may be amended at any time by the Board of Directors of the
Employer. No such amendment, however, shall reduce benefits being paid in
accordance with this Plan on the effective date of the amendment.
6.2 TERMINATION
The Employer retains the right to terminate this Plan at any time,
which action may be taken by the Board of Directors, in the exercise of its
absolute and uncontrolled discretion at any time.
In the event of the Plan's termination, the Employer shall make such
provisions as it deems necessary to provide for the payment of benefits to any
Employee or beneficiaries entitled to receive them. In no event shall
termination of the Plan result in a reduction of any benefits due an Employee or
beneficiary immediately prior to the termination date.
<PAGE>
ARTICLE VI
EFFECTIVE DATE
7.1 EFFECTIVE DATE
This Plan was originally effective on or after January 1, 1983, and
this Restatement is effective on or after January 1, 1995, except in the case of
the Profit Sharing Plan benefit described in Article V where the effective date
is January 1, 1994.
ARTICLE VIII
MISCELLANEOUS PROVISION
8.1 EFFECT OF THIS PLAN
The terms of this Plan shall be binding upon and inure to the benefit
of the Employer, its successor and assigns, and the eligible Employees and their
heirs, executors, administrators, and legal representatives.
8.2 NEW YORK STATE LAW WILL GOVERN
This Plan shall be construed in accordance with and governed by the
laws of the State of New York.
8.3 ACTIONS OF THE EMPLOYER, BOARD OF DIRECTORS AND COMMITTEE
The Employer, members of the Board of Directors and Committee shall not
be held liable to any person for any action taken or omitted in connection with
the interpretation and administration of this Plan unless the action is
attributable to willful misconduct or lack of good faith.
<PAGE>
8.4 NO CONTRACT
Nothing contained in this Plan shall be construed as a contract of
employment between the Employer and an Employee, or as a right of any Employee
to be continued in the employ of the Employer, or as a limitation of the right
of the Employer to discharge any of its Employees, with our without causes.
8.5 NO ASSIGNMENT
The benefits payable under this Plan are non-assignable,
non-transferable, non-alienable and not-attachable.
IN WITNESS WHEREOF, the Plan has been executed this 13th day of June,
1995.
THE RAYMOND CORPORATION
By: /s/ Ross K. Colquhoun
------------------------------------
Ross K. Colquhoun
Its: President & C.E.O.
-------------------------------------
<PAGE>
EXHIBIT 10.18
THE RAYMOND CORPORATION
STOCK OPTION PLAN (1995)
------------------------
Adopted by the Board of Directors on March 4, 1995
Approved by the Shareholders on April 29, 1995
<PAGE>
THE RAYMOND CORPORATION
STOCK OPTION PLAN (1995)
TABLE OF CONTENTS
SECTION PAGE
- ------- ----
1 Purpose 1
2 Administration 1
3 Shares Subject to the Plan 1
4 Eligibility and Extent of Participation 2
5 Non-qualified and Incentive Options 2
6 Option Agreements 3
7 Option Price 4
8 Exercise of Options 4
9 Transferability of Options 5
10 Death, Retirement, and Termination of Employment 5
or Director Status
11 Cancellation of Options 6
12 Amendments, Suspension or Discontinuance 6
13 Termination 6
14 Stock Appreciation Rights 7
15 Withholding 7
16 Director Stock Options 8
<PAGE>
THE RAYMOND CORPORATION
Stock Option Plan (1995)
SECTION 1
PURPOSE
The purpose of this Plan is to promote the interests of The Raymond
Corporation ("Company") and its stockholders by providing a method whereby
directors, officers and other key employees of the Company and its subsidiaries
may be encouraged to invest in the Common Stock of the Company and thereby
increase their proprietary interest in its business, encourage them to remain in
the employ of the Company and increase their personal interest in its continued
success and progress.
SECTION 2
ADMINISTRATION
(a) The Board of Directors shall designate a committee of Directors
(hereinafter referred to as the "Committee"), none of whose members shall be
eligible to receive options except as specifically authorized under Section 16
of the Plan. The Committee shall have full power and authority, subject to such
orders or resolutions not inconsistent with the provisions of the Plan as may
from time to time be issued or adopted by the Board, to interpret the provisions
and supervise the administration of the Plan. All determinations by the
Committee shall be made by the affirmative vote of a majority of its members,
but any determination reduced to writing and signed by all of the members shall
be fully as effective as if it had been made by a majority vote at a meeting
duly called and held.
(b) Subject to any applicable provisions of the ByLaws of the Company,
all decisions made by the Committee pursuant to the provisions of the Plan and
related orders or resolutions of the Board shall be final, conclusive and
binding on all persons, including the Company, stockholders, employees and
optionees.
SECTION 3
SHARES SUBJECT TO THE PLAN
(a) The shares to be delivered upon exercise of options granted under
the Plan shall be available, at the discretion of the Board of Directors, either
from the authorized but unissued shares of the Company or from shares reacquired
by the Company, including shares purchased in the open market.
<PAGE>
(b) Subject to adjustments made pursuant to the provisions of paragraph
(c) of this Section 3, the aggregate number of shares to be delivered upon
exercise of all options which may be granted under the Plan shall not exceed
315,000 shares. If an option granted under the Plan shall expire or terminate
for any reason, the shares subject to, but not delivered under, such option
shall be available for other options to the same person or other persons.
(c) In the event of a merger, reorganization, consolidation,
recapitalization, stock dividend, or other change in corporate structure
affecting the Common Stock of the Company, such adjustment shall be made in the
aggregate number of shares which may be purchased under the Plan, the maximum
number of shares which may be purchased by any one person under the Plan and the
number and option price of shares subject to the outstanding options granted
under the Plan as may be determined to be appropriate by the Board of Directors
upon recommendation by the Committee.
SECTION 4
ELIGIBILITY AND EXTENT OF PARTICIPATION
Options may be granted only to directors and employees of the Company
and its subsidiaries. Except as expressly authorized by Section 16 of the Plan,
no grant shall be made to a director who is not an officer or salaried employee.
Subject to the limitations of the Plan, the Committee shall, after consultation
with management, select the employees to be granted options and determine the
time when each option shall be granted and the number of shares subject to each
option. More than one Plan option may be granted to the same employee, but the
maximum number of shares that can be granted to an individual employee during
any given Plan year shall be 50,000 shares.
SECTION 5
NON-QUALIFIED AND INCENTIVE OPTIONS
(a) The Committee shall have authority to grant "Non-qualified Options"
for a term not more than ten (10) years from the date of grant. Non-qualified
options shall be labeled as such.
(b) Options granted under the Plan prior to March 1, 2005 may also be
Incentive Stock Options as provided by Section 422A of the Internal Revenue Code
of 1986, as amended. The terms of each Incentive Stock Option granted under the
Plan shall be determined by the Committee consistent with provisions of the
Plan, including the following:
2
<PAGE>
(i) The purchase price of the stock subject to option shall not be less
than the fair market value of the stock on the date the option is
granted.
(ii) Each Incentive Stock Option may be exercised in whole or in part
from time to time during such period as the option shall specify,
provided that no option shall not be exercisable prior to one (1) year
nor after ten (10) years from the date of the grant thereof;
(iii) The aggregate fair market value (determined as of the date the
option is granted) of the shares with respect to which Incentive Stock
Options are exercisable for the first time by any individual during any
calendar year (under all plans of the individual's employer corporation
and its parent and subsidiary corporation) cannot exceed $100,000.
(iii) The purchase price of the shares with respect to which an
Incentive Stock Option is exercised shall be payable in full in cash
or, to the extent authorized by the Board of Directors at the time such
an option is granted under the Plan (i) in shares of Common Stock of
the Company or (ii) in a combination of cash and such shares. The value
of any share delivered in payment of the purchase price shall be its
fair market value on the date the option is exercised. No fractional
shares shall be issued.
(iv) An Incentive Stock Option or Stock Appreciation Right shall not be
assignable or transferable by the employee to whom granted otherwise
than by will or by the laws of descent and distribution, and shall be
exercisable, during the employee's lifetime, only by the employee.
(v) No person shall be granted any Incentive Stock Option if at the
time of the grant such person owns, directly or indirectly, more than
10% of the total combined voting power of the Company unless the option
price is at least 110% of the fair market value of the Common Stock and
the exercise period of such Incentive Stock Option is by its terms
limited to five (5) years.
SECTION 6
OPTION AGREEMENTS
Each option shall be evidenced by an option agreement which shall
contain such terms and conditions as may be approved by the Committee and shall
be signed by an officer of the Company and the optionee Each option agreement
shall specify the period within which the option may be exercised and the time
or times within such period that the option may be exercised and the number of
3
<PAGE>
shares which may be purchased at such time or times. If any option agreement
provides for exercise in installments, it shall provide that, unless the option
has been canceled on termination of employment by reason of death or otherwise
prior to the next succeeding maturity date of an installment, the option shall
be exercisable with respect to a proportionate part of such installment based
upon the number of days of employment during the period of such installment in
relation to the number of days in such period.
SECTION 7
OPTION PRICE
The price at which shares may be purchased upon exercise of a
particular option shall be not less than 100% of the fair market value of such
shares at the time such option is granted, as determined by the Committee. For
this purpose such fair market value shall be the mean between the bid and asked
prices on the "over-the-counter" market of said stock on the date the option is
granted, or, if no such bid and asked prices are made on that day, then on the
next preceding day on which there were such bid and asked prices.
SECTION 8
EXERCISE OF OPTIONS
(a) Subject to the provisions of the Plan with respect to death,
retirement and termination of employment or director status, the period during
which each option may be exercised shall be fixed by the Committee at the time
such option is granted, but such period in no event shall expire later than ten
(10) years from the date the option is granted.
(b) Except as provided in Section 16 of the Plan, each option granted
under the Plan may be exercised only after one (1) year of continued employment
by the Company or its subsidiaries immediately following the date the option is
granted and, except in case of death, retirement or termination of employment or
director status as hereinafter provided, only during the continuance of the
optionee's employment with the Company or one of its subsidiaries. Subject to
the foregoing limitations and the terms and conditions of the option agreement
and unless canceled prior to exercise, each option shall be exercisable in whole
or in part or in installments at such time or times as the Committee may
prescribe and specify in the applicable option agreement, but no option may at
any time be exercised in part with respect to fewer than fifty (50) shares.
4
<PAGE>
(c) Options shall be exercised by written notice to the Company and
payment of the option price. No shares shall be delivered pursuant to the
exercise of any option, in whole or in part, until qualified for delivery under
such laws and regulations as may be deemed by the Committee to be applicable
thereto and until payment in full of the option price therefor is received by
the Company. In addition to any other method of payment which may be acceptable
to the Committee, and notwithstanding any requirement for payment in cash
contained in outstanding option agreements, payment may be effected either in
whole or in part by the surrender to the Company of outstanding shares of its
Common Stock in lieu of cash; and any shares so surrendered shall be valued at
the fair market value thereof as determined under Section 7 hereof on the last
trading day prior to the date on which such shares are surrendered.
(d) Shares shall be issued in the name of the optionee. No optionee, or
the legal representative, legatee, or distributee of an optionee, shall be
deemed to be a holder of any shares subject to such option unless and until the
certificate or certificates therefor have been issued.
(e) Each Stock Option may provide that the optionee shall represent at
the time of each exercise of option or stock appreciation right that the shares
purchased are being acquired for investment and not with a view to distribution
thereof.
SECTION 9
TRANSFERABILITY OF OPTIONS
An option granted under the Plan may not be transferred except by will
or the laws of descent and distribution.
SECTION 10
DEATH, RETIREMENT, AND TERMINATION OF EMPLOYMENT
OR DIRECTOR STATUS
Subject to the condition that no option may be exercised in whole or in
part after the expiration of the option period specified in the applicable
option agreement and subject to the Committee's right to cancel any option:
(a) Upon termination of his employment or director status for any
reason other than death, an optionee, may within three (3) months after the date
of such termination, purchase any or all of the shares with respect to which
such optionee was entitled to exercise such option immediately prior to such
termination.
5
<PAGE>
(b) Upon the death of any optionee while in active service or within
the three-month period referred to in (a) above, the person or persons to whom
such optionee's rights under the option are transferred by will or the laws of
descent and distribution may, within one (1) year after the date of such
optionee's death, purchase any or all of the shares with respect to which such
optionee was entitled to exercise such option immediately prior to his death.
Notwithstanding the foregoing, if at the date of any optionee while in active
service such optionee was entitled to exercise his option in part only, the
Committee may, in its sole discretion, permit such person or persons to purchase
all or any part of the balance of the shares subject to such option.
SECTION 11
CANCELLATION OF OPTIONS
Except for director stock options granted pursuant to Section 16 hereof
the Committee may, in its sole discretion and with or without cause, cancel any
option to the extent it has not theretofore been exercised. Such cancellation
shall become effective concurrently with the Committee's action.
SECTION 12
AMENDMENTS, SUSPENSION OR DISCONTINUANCE
The Board of Directors may amend, suspend, or discontinue the Plan, but
may not without the prior approval of the stockholders, make any amendment which
operates (a) to abolish the Committee, change the qualification of its members,
or withdraw the administration of the Plan from its supervision, (b) to make any
material change in the class of eligible participants as defined in the Plan,
(c) to increase the total number of shares which may be purchased on exercise of
options granted under the Plan, (d) to increase the total number of shares which
may be purchased by any one participant, (e) to extend the maximum option
period, (f) to decrease the minimum option price, or (g) to permit adjustments
or reductions of the price at which shares may be purchased under any option
granted under the Plan, except in each case as permitted by the provisions of
paragraph (c) of Section 3 above, provided that the restriction imposed by this
clause (g) shall in no way limit the power to grant more than one option to any
individual.
SECTION 13
TERMINATION
This Plan shall terminate ten (10) years from the date upon which it is
adopted by the Board of Directors of The Raymond Corporation.
6
<PAGE>
SECTION 14
STOCK APPRECIATION RIGHTS
(a) Any Non-qualified Option or Incentive Stock Option granted under
the Plan may, at the time of such grant, include a Stock Appreciation Right in
the discretion of the Committee. Any such Stock Appreciation Right and the
exercise thereof shall be subject to the general provisions of the Plan relating
to the underlying option, to the provisions of this Section and to such
additional restrictions or conditions as the Committee may impose.
(b) The Committee may include, in conjunction with the grant of an
option, Stock Appreciation Rights covering up to one-half the number of optioned
shares specified in the grant. Subject to any restrictions or conditions imposed
by the Committee, such rights may be exercised by the optionee as to a number of
shares of Common Stock provided in the related option only upon surrender of the
exercisable portion of said option with respect to a like number of shares of
common stock.
(c) For each Stock Appreciation Right granted to an optionee, the
optionee upon exercise thereof shall receive cash (subject to applicable
withholding taxes) in an amount equal to the amount, if any, by which the fair
market value at the exercise date of one share of common stock exceeds the
option price per share stated in the related underlying option, multiplied by
the number of shares covered by the appreciation rights exercised by the
optionee. The fair market value of the shares shall be determined as provided in
Section 7 of the Plan.
(d) The exercise of Stock Appreciation Rights hereunder shall result in
a reduction in an equivalent number of optioned shares available for purchase,
and to such extent the right to purchase such shares shall be deemed surrendered
under the related option.
SECTION 15
WITHHOLDING
(a) There will be deducted from each distribution of stock and/or cash
made under the Plan the amount of tax required by any governmental authority to
be withheld.
(b) The option agreement evidencing any Incentive Stock Option granted
under this Plan shall provide that if the optionee makes a disposition within
the meaning of Section 425(c) of the Internal Revenue Code and the regulations
promulgated thereunder of any share or shares of stock issued to the optionee
pursuant to the exercise of the Incentive Stock Option within the two year
7
<PAGE>
period commencing on the day after the date of grant of such option or within
the one year period commencing on the day after the date of transfer of the
share or shares to the optionee pursuant to the exercise of such option, the
optionee shall within ten (10) days of such disposition notify the Company
thereof and immediately deliver to the Company the amount of Federal income tax
withholding required by law.
SECTION 16
DIRECTOR STOCK OPTIONS
(a) Each director of the Company who is not otherwise an employee of
the Company or any subsidiary shall, on the fourth Wednesday of May following
the director's election at the annual meeting of shareholders commencing with
May 1995 and on the fourth Wednesday of each May thereafter during such
directors term automatically be granted Non-qualified Options to purchase the
Company's common stock. The number of shares subject to each such option shall
be equal to (i) the average of all compensation paid to non-employee directors,
divided by (ii) the fair market value per share of the Company's Common Stock on
the date of grant. The average of non-employee directors' compensation shall be
determined by dividing the number of non-employee directors eligible for
director stock options into the aggregate compensation paid to all non-employee
directors during the Company's preceding fiscal year for services rendered to
the Company as directors (including any deferred compensation). A director's
stock option granted hereunder shall be exercisable on the date of grant.
(b) Automatic director stock option grants shall only be made if, as of
each date of grant, the director (i) is not otherwise an employee of the Company
or any subsidiary, (ii) has not been an employee of the Company or any
subsidiary for any part of the preceding fiscal year, and (iii) has served on
the Board of Directors continuously since the commencement of the director's
term.
(c) Except as expressly provided in this Section 16, director stock
options shall be subject to the terms and conditions of Section 5 for
Non-qualified Options and in accordance with the Plan.
8
<PAGE>
EXHIBIT 10.19
- -------------------------------------------------------------------------------
MERRILL LYNCH
-------
SPECIAL
-------
PROTOTYPE DEFINED
CONTRIBUTION PLAN
ADOPTION AGREEMENT
- -------------------------------------------------------------------------------
401(k) PLAN
EMPLOYEE THRIFT PLAN
PROFIT-SHARING PLAN
Letter Serial Number: D359287b
National Office Letter Date: 6/29/93
This Prototype Plan and Adoption Agreement are important legal instruments with
legal and tax implications for which the Sponsor, Merrill Lynch, Pierce, Fenner
& Smith, Incorporated, does not assume responsibility. The Employer is urged to
consult with its own attorney with regard to the adoption of this Plan and
its suitability to its circumstances.
<PAGE>
Adoption of Plan
- ----------------
The Employer named below hereby establishes or restates a profit-sharing plan
that includes a |X| 401(k), | | profit-sharing and/or | | thrift plan feature
(the "Plan") by adopting the Merrill Lynch Special Prototype Defined
Contribution Plan and Trust as modified by the terms and provisions of this
Adoption Agreement.
Employer and Plan Information
- -----------------------------
Employer Name:* The Raymond Corporation
Business Address: South Canal Street, P.O. Box 130
Greene, NY 13778
Telephone Number: (607) 656-2311
Employer Taxpayer ID Number: 15-0372290
Employer Taxable Year ends on: December 31st
Plan Name: The Raymond Corporation Savings Plan
Plan Number: 005
401 (k) Profit Thrift
Sharing
Effective Date of Adoption
or Restatement: 07/01/95 / / --/--/--
-------- -------- --------
Tax Reform Act of 1986
Restatement Date: --/--/-- --/--/-- --/--/--
-------- -------- --------
Original Effective Date: 01/01/86 --/--/-- --/--/--
-------- -------- --------
If this Plan is a continuation or an amendment of a prior plan, all optional
forms of benefits provided in the prior plan must be provided under this Plan to
any Participant who had an account balance, whether or not vested, in the prior
plan.
- ------------------------------------------------------
* If there are any Participating Affiliates in this Plan, list below the proper
name of each Participating Affiliate.
Raymond Accounts Management, Inc.
- ---------------------------------
.
- ----------
.
- ----------
.
- ----------
2
<PAGE>
ARTICLE I. Definitions
-----------
A. "Compensation"
--------------
(1) With respect to each Participant, except as provided below,
Compensation shall mean the (select all those applicable for each
column):
401(k) and/ Profit
or Thrift sharing
|X| | | (a) amount reported in the "Wages Tips and
Other Compensation" Box on Form W-2 for the
applicable period selected in Item 5 below.
| | | | (b) compensation for Code Section 415 safe-harbor purposes (as
defined in Section 3.9.1 (H)(i) of basic plan document #03)
for the applicable period selected in Item 5 below.
| | | | (c) amount reported pursuant to Code Section 3401(a) for the
applicable period selected in Item 5 below.
| | | | (d) all amounts received (under either option (a) or (b) above)
for personal services rendered to the Employer but
excluding (select one):
| | overtime
| | bonuses
| | commissions
| | amounts in excess of $
| | other (specify) _____.
(2) Treatment of Elective Contributions (select one):
|X| (a) For purposes of contributions, Compensation shall include Elective
Deferrals and amounts excludable from the gross income of the Employee
under Code Section 125, Code Section 402(e)(3), Code Section 402(h)
or Code Section 403(b) ("elective contributions").
|X| (b) For purposes of contributions, Compensation shall not include
"elective contributions."
(3) CODA Compensation (select one):
|X| (a) For purposes of the ADP and CAP Tests, Compensation shall include
"elective contributions."
| | (b) For purposes of the ADP and CAP Tests, Compensation shall not include
elective contributions."
3
<PAGE>
(4) With respect to Contributions to an Employer Contributions Account,
Compensation shall include all Compensation (select one):
| | (a) during the Plan Year in which the Participant enters the Plan.
|X| (b) after the Participant's Entry Date.
(5) The applicable period for determining Compensation shall be (select one):
|X| (a) the Plan Year.
| | (b) the Limitation Year.
| | (c) the consecutive 12-month period ending on _____________.
B. "Disability"
(1) Definition
Disability shall mean a condition which results in the Participant's (select
one):
| | (a) inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment that
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.
| | (b) total and permanent inability to meet the requirements of the
Participant's customary employment which can be expected to last
for a continuous period of not less than 12 months.
|X| (c) qualification for Social Security disability benefits.
| | (d) qualification for benefits under the Employer's long-term
disability plan.
(2) Contributions perlutions Due to Disability (select one
|X| (a) No contributions to an Employer Contributions Account will be made
on behalf of a Participant due to his or her Disability.
| | (b) Contributions to an Employer Contributions Account will be made on
behalf of a Participant due to his or her Disability provided that:
the Employer elected option (a) or (c) above as the definition of
Disability, contributions are not made on behalf of a Highly
Compensated Employee, the contribution is based on the Compensation
each such Participant would have received for the Limitation Year if
the Participant had been paid at the rate of Compensation paid
immediately before his or her Disability, and contributions made on
behalf of such Participant will be nonforfeitable when made.
4
<PAGE>
C "Early Retirement" is (select one):
| | (1) not permitted.
|X| (2) permitted if a Participant terminates Employment before Normal
Retirement Age and has (select one):
| | (a) attained age __.
|X| (b) attained age 55 and completed 15 Years of Service.
| | (c) attained age __ and completed __ Years of Service as a
Participant.
D. "Eligible Employees" (select one):
| | (1) All Employees are eligible to participate in the Plan.
|X| (2) The following Employees are not eligible to participate in the Plan
(select all those applicable):
|X| (a) Employees included in a unit of Employees covered by a
collective bargaining agreement between the Employer or a
Participating Affiliate and the Employee representatives
(not including any organization more than half of whose
members are Employees who are owners, officers, or
executives of the Employer or Participating Affiliate) in
the negotiation of which retirement benefits were the
subject of good faith bargaining, unless the bargaining
agreement provides for participation in the Plan.
|X| (b) non-resident aliens who received no earned income from the
Employer or a Participating Affiliate which constitutes
income from sources within the United States.
| | (c) Employees of an Affiliate.
| | (d) Employees employed in or by the following specified
division, plant, location, job category or other
identifiable individual or group of Employees:
5
<PAGE>
E. "Entry Date"
Entry Date shall mean (select as applicable):
401 (k)
and/or Profit-
Thrift Sharing
| | | | (1) If the initial Plan Year is less than twelve months,
the day of and thereafter:
| | | | (2) the first day of the Plan Year following the date
the Employee meets the eligibility requirements. If
the Employer elects this option (2) establishing
only one Entry Date, the eligibility "age and
service" requirements elected in Article II must be
no more than age 20-1/2 and 6 months of service.
|X| | | (3) the first day of the month following the date the
Employee meets the eligibility requirements.
| | | | (4) the first day of the Plan Year and the first day of
the seventh month of the Plan Year following the
date the Employee meets the eligibility
requirements.
| | | | (5) the first day of the Plan Year, the first day of the
fourth month of the Plan Year, the first day of the
seventh month of the Plan Year, and the first day of
the tenth month of the Plan Year following the date
the Employee meets the eligibility requirements.
| | | | (6) other:
provided that the Entry Date or Dates selected are
no later than any of the options above.
F. "Hours of Service"
Hours of Service for the purpose of determining a Participant's Period of
Severance and Year of Service shall be determined on the basis of the
method specified below:
(1) Eligibility Service: For purposes of determining whether a Participant
has satisfied the eligibility requirements, the following method shall
be used (select one):
401 (k)
and/or Profit-
Thrift Sharing
| | | | (a) elapsed time method
|X| | | (b) hourly records method
6
<PAGE>
(2) Vesting Service: A Participant's nonforfeitable interest shall be
determined on the basis of the method specified below (select one):
| | (a) elapsed time method
| | (b) hourly records method
|X| (c) If this item (c) is checked, the Plan only provides for
contributions that are always 100% vested and this item (2)
will not apply.
(3) Hourly Records: For the purpose of determining Hours of Service under
the hourly record method (select one):
|X| (a) only actual hours for which an Employee is paid or entitled
to payment shall be counted.
| | (b) an Employee shall be credited with 45 Hours of Service if
such Employee would be credited with at least 1 Hour of
Service during the week.
G. "Integration Level"
|X| (1) This Plan is not integrated with Social Security.
| | (2) This Plan is integrated with Social Security. The Integration
Level shall be (select one):
| | (a) the Taxable Wage Base.
| | (b)$_____ (a dollar amount less than the Taxable Wage Base).
| | (c) __% of the Taxable Wage Base (not to exceed 100%).
| | (d) the greater of $10,000 or 20% of the Taxable Wage Base.
H. "Limitation Compensation"
For purposes of Code Section 415, Limitation Compensation shall be
compensation as determined for purposes of (select one):
| | (1) Code Section 415 Safe-Harbor as defined in Section 3.9.1(H)(i)
of basic plan document #03.
|X| (2) the "Wages, Tips and Other Compensation" Box on Form W-2.
| | (3) Code Section 3401(a) Federal Income Tax Withholding.
I. "Limitation Year"
For purposes of Code Section 415, the Limitation Year shall be
(select one):
|X| (1) the Plan Year.
| | (2) the twelve consecutive month period ending on the __ day of
the month of __________.
7
<PAGE>
J. "Net Profits" are (select one):
|X| (1) not necessary for any contribution.
| | (2) necessary for (select all those applicable):
| | (a) Profit-Sharing Contributions.
| | (b) Matching 401(k) Contributions.
| | (c) Matching Thrift Contributions.
K. "Normal Retirement Age"
Normal Retirement Age shall be (select one):
|X| (1) attainment of age 65 (not more than 63) by the Participant.
| | (2) attainment of age _ (not more than 65) by the Participant or
the anniversary (not more than the 5th) of the first day of
the Plan Year in which the Eligible Employee became a
Participant, whichever is later.
| | (3) attainment of age __ (not more than 65) by the Participant or
the anniversary (not more than the 5th) of the first day on
which the Eligible performed an Hour of Service, whichever is
later.
L. "Participant Directed Assets" are:
401(k) and/ Profit-
or Thrift Sharing
|X| | | (1) permitted.
| | | | (2) not permitted.
M. "Plan Year"
The Plan Year shall end on the 31st day of December.
N. "Predecessor Service"
Predecessor service will be credited (select one):
|X| (1) only as required by the Plan.
| | (2) to include, in addition to the Plan requirements and subject to the
limitations set forth below, service with the following predecessor
employer(s) determined as if such predecessors were the Employer:
8
<PAGE>
Service with such predecessor employer applies [select either or both
(a) and/or (b); (c) is only available in addition to (a) and/or (b)]:
| | (a) for purposes of eligibility to participate;
| | (b) for purposes of vesting;
| | (c) except for the following service.
O. "Valuation Date"
Valuation Date shall mean (select one for each column, as applicable):
401(k) and/ Profit-
or Thrift Sharing
| | | | (1) the last business day of each month.
| | | | (2) the last business day of each quarter within the
Plan Year.
| | | | (3) the last business day of each semi-annual period within
the Plan Year.
| | | | (4) the last business day of the Plan Year.
|X| | | (5) other: Daily.
ARTICLE II. Participation
Participation Requirements
An Eligible Employee must meet the following requirements to become a
Participant (select one or more for each column, as applicable):
401(k) and/ Profit-
or Thrift Sharing
| | | | (1) Performance of one Hour of Service.
| | | | (2) Attainment of age ________________ (maximum 20 1/2) and
completion of (not more than 1/2) Years of Service. If
this item is selected, no Hours of Service shall be
counted.
|X| | | (3) Attainment of age 21 (maximum 21) and completion of 1
Year(s) of Service. If more than one Year of Service is
selected, the immediate 100% vesting schedule must be
selected in Article VII of this Adoption Agreement.
9
<PAGE>
| | | | (4) Attainment of age ___ (maximum 21) and completion of
Years of Service. If more than one Year of Service is
selected, the immediate 100% vesting schedule must be
selected in Article VII of this Adoption Agreement.
| | | | (5) Each Employee who is an Eligible Employee on _______
will be deemed to have satisfied the participation
requirements on the effective date without regard to such
Eligible Employee's actual age and/or service.
ARTICLE III. 401(k) Contributions and Account Allocation
A. Elective Deferrals
If selected below, a Participant's Elective Deferrals will be (select
all applicable):
|X| (1) a dollar amount or a percentage of Compensation, as specified by
the Participant on his or her 40l(k) Election form, which may not
exceed 15% of his or her Compensation.
|X| (2) with respect to bonuses, such dollar amount or percentage as
specified by the Participant on his or her 401(k) Election form
with respect to such bonus.
B. Matching 401(k) Contributions
If selected below, the Employer may make Matching 401(k) Contributions for
each Plan Year (select one):
| | (1) Discretionary Formula:
Discretionary Matching 401(k) Contribution equal to such a dollar
amount or percentage of Elective Deferrals, as determined by the
Employer, which shall be allocated (select one):
| | (a) based on the ratio of each Participant's Elective Deferral
for the Plan Year to the total Elective Deferrals of all
Participants for the Plan Year. If inserted, Matching 401(k)
Contributions shall be subject to a maximum amount of $____
for each Participant or ___% of each Participant's
Compensation.
10
<PAGE>
| | (b) in an amount not to exceed ___% of each Participant's first
___% of Compensation contributed as ELective Deferrals for
the Plan Year. If any Matching 401(k) Contribution remains,
it is allocated to each such Participant in an amount not to
exceed ___% of the next ___% of each Participant's
Compensation contributed as Elective Deferrals for the Plan
Year.
Any remaining Matching 401(k) Contribution shall be allocated to each such
Participant in the ratio that such Participant's Elective Deferral for the
Plan Year bears to the total Elective Deferrals of all such Participants for
the Plan Year. If inserted, Matching 401(k) Contributions shall be subject
to a maximum amount of $______ for each Participant or ___% of each
Participant's Compensation.
| | (2) Nondiscretionary Formula:
A nondiscretionary Matching 401(k) Contribution for each Plan Year
equal to (select one):
| | (a) ___% of each Participant's Compensation contributed as
Elective Deferrals. If inserted, Matching 401(k)
Contributions shall be subject to a maximum amount of
$______ for each Participant or ___5 of each Participant's
Compensation.
| | (b) ___% of the first ___% of the Participant's Compensation
contributed as Elective Deferrals and ___% of the next ___%
of the Participant's Compensation contributed as Elective
Deferrals. If inserted, Matching 401(k) Contributions shall
be subject to a maximum amount of $______ for each
Participant or ___% of each Participant's Compensation.
C. Participants Eligible for Matching 401(k) Contribution Allocation
The following Participants shall be eligible for an allocation to their
Matching 401(k) Contributions Account (select all those applicable):
| | (1) Any Participant who makes Elective Deferrals.
| | (2) Any Participant who satisfies those requirements elected by the
Employer for an allocation to his or her Employer Contributions
Account as provided in Article IV Section C.
| | (3) Solely with respect to a Plan in which Matching 401(k) Contributions
are made quarterly (or on any other regular interval that is more
frequent than annually) any Participant whose 401(k) Election is in
effect throughout such entire quarter (or other interval).
11
<PAGE>
D. Qualified Matching Contributions
If selected below, the Employer may make Qualified Matching Contributions
for each Plan Year (select all those applicable):
(1) In its discretion, the Employer may make Qualified Matching
Contributions on behalf of (select one):
| | (a) all Participants who make Elective Deferrals in that
Plan Year.
| | (b) only those Participants who are Nonhighly Compensated
Employees and who make Elective Deferrals for that Plan
Year.
(2) Qualified Matching Contributions will be contributed and
allocated to each Participant in an amount equal to:
| | (a) ___% of the Participant's Compensation contributed as
Elective Deferrals. If inserted, Qualified Matching
Contributions shall not exceed ______% of the
Participant's Compensation.
| | (b) Such an amount, determined by the Employer, which is
needed to meet the ACP Test.
(3) In its discretion, the Employer may elect to designate all or
any part of Matching 401(k) Contributions as Qualified Matching
Contributions that are taken into account as Elective Deferrals
-- included in the ADP Test and excluded from the ACP Test --
on behalf of (select one):
| | (a) all Participants who make Elective Deferrals for that
Plan Year.
| | (b) Only Participants who are Nonhighly Compensated
Employees who make Elective Deferrals for that Plan
Year.
E. Qualified Nonelective Contributions
If selected below, the Employer may make Qualified Nonelective Contributions
for each Plan Year (select all those applicable):
(1) In its discretion, the Employer may make Qualified Nonelective
Contributions on behalf of (select one):
| | (a) all Eligible Participants.
| | (b) only Eligible Participants who are Nonhighly Compensated
Employees.
12
<PAGE>
(2) Qualified Nonelective Contributions will be contributed and
allocated to each Eligible Participant in an amount equal to
(select one):
| | (a) ___% (no more than 15%) of the Compensation of each
Eligible Participant eligible to share in the
allocation.
| | (b) Such an amount determined by the Employer, which is
needed to meet either the ADP Test or ACP Test.
(3) At the discretion of the Employer, as needed and taken into
account as Elective Deferrals included in the ADP Test on behalf
of (select one):
| | (a) all Eligible Participants.
| | (b) only those Eligible Participants who are Nonhighly
Compensated Employees.
F. Elective Deferrals used in ACP Test (select one):
| | (1) At the discretion of the Employer, Elective Deferrals may be used to
satisfy the ACP Test.
| | (2) Elective Deferrals may not be used to satisfy the ACP Test.
G. Making and modifying a 401(k) Election
An Eligible Employee shall be entitled to increase, decrease or resume his
or her Elective Deferral percentage with the following frequency during the
Plan Year (select one):
| | (1) annually.
| | (2) semi-annually.
|X| (3) quarterly.
| | (4) monthly
| | (5) other (specify).
Any such increase, decrease or resumption shall be effective as of the first
payroll period coincident with or next following the first day of each
period set forth above. A Participant may completely discontinue making
Elective Deferrals at any time effective for the payroll period after
written notice is provided to the Administrator.
13
<PAGE>
ARTICLE IV. Profit-Sharing Contributions and Account Allocation
A. Profit-Sharing Contributions
If selected below, the following contributions for each Plan Year will be
made:
Contributions to Employer Contributions Accounts (select one):
| | (a) Such an amount, if any, as determined by the Employer.
| | (b) _____% of each Participant's Compensation.
B. Allocation of Contributions to Employer Contributions Accounts (select one):
| | (1) Non-Integrated Allocation
The Employer Contributions Account of each Participant
eligible to share in the allocation for a Plan Year shall be
credited with a portion of the contribution, plus any
forfeitures if forfeitures are reallocated to Participants,
equal to the ratio that the Participant's Compensation for
the Plan Year bears to the Compensation for that Plan Year
of all Participants entitled to share in the contribution.
| | (2) Integrated Allocation
Contributions to Employer Contributions Accounts with
respect to a Plan Year, plus any forfeitures if forfeitures
are reallocated to Participants, shall be allocated to the
Employer Contributions Account of each eligible Participant
as follows:
(a) First, in the ratio that each such eligible
Participant's Compensation for the Plan Year bears to
the Compensation for that Plan Year of all eligible
Participants but not in excess of 3% of each
Participant's Compensation.
(b) Second, any remaining contributions and forfeitures will
be allocated in the ratio that each eligible
Participant's Compensation for the Plan Year in excess
of the Integration Level bears to all such Participants'
excess Compensation for the Plan Year but not in excess
of 3%.
14
<PAGE>
(c) Third, any remaining contributions and forfeitures will
be allocated in the ratio that the sum of each
Participant's Compensation and Compensation in excess of
the Integration Level bears to the sum of all
Participants' Compensation and Compensation in excess of
the Integration Level, but not in excess of the Maximum
Profit-Sharing Disparity Rate (defined below).
(d) Fourth, any remaining contributions or forfeitures will
be allocated in the ratio that each Participant's
Compensation for that year bears to all Participants'
Compensation for that year.
The Maximum Profit-Sharing Disparity Rate is equal to the
lesser of:
(a) 2.7% or
(b) The applicable percentage determined in accordance with
the following table:
If the Integration
Level is (as a % of the applicable
the Taxable Wage Base ("TWB")). percentage is:
20% (or $10,000 if greater)
or less of the TWB 2.7%
More than -210% (but not less
than $10,001) but not more
than 80% of the TWB 1.3%
More than 80% but not less
than 100% of the TWB 2.4%
100% of the TWB 2.7%
15
<PAGE>
C. Participants Eligible for Employer Contribution Allocation
The following Participants shall be eligible for an allocation to their
Employer Contributions Account (select all those applicable):
| | (1) Any Participant who was employed during the Plan Year.
| | (2) In the case of a Plan using the hourly record
method for determining Vesting Service, any Participant who
was credited with a Year of Service during the Plan Year.
| | (3) Any Participant who was employed on the last day of the
Plan Year.
| | (4) Any Participant who was on a leave of absence on the last
day of the Plan Year.
| | (5) Any Participant who during the Plan Year died or became
Disabled while an Employee or terminated employment after
attaining Normal Retirement Age.
| | (6) Any Participant who was credited with at least 501 Hours of
Service whether or not employed on the last day of the Plan
Year.
| | (7) Any Participant who was credited with at least 1,000 Hours
of Service and was employed on the last day of the Plan
Year.
ARTICLE V. Thrift Contributions
THIS ARTICLE V IS NOT APPLICABLE
A. Employee Thrift Contributions
If selected below, Employee Thrift Contributions, which are required for
Matching Thrift Contributions, may be made by a Participant in an amount
equal to (select one):
| | (1) A dollar amount or a percentage of the Participant's
Compensation which may not be less than ___% nor may not
exceed ___% of his or her Compensation.
| | (2) An amount not less than ___% of and not more than ___% of
each Participant's Compensation.
16
<PAGE>
B. Making and modifying an Employee Thrift Contribution Election
A Participant shall be entitled to increase, decrease or resume his or her
Employee Thrift Contribution percentage with the following frequency during
the Plan Year (select one):
| | (1) annually
| | (2) semi-annually
| | (3) quarterly
| | (4) monthly
| | (5) other (specify):_____.
Any such increase, decrease or resumption shall be effective as of the first
payroll period coincident with or next following the first day of each
period set forth above. A Participant may completely discontinue making
Employee Thrift Contributions at any time effective for the payroll period
after written notice is provided to the Administrator.
C. Thrift Matching Contributions
If selected below, the Employer will make Matching Thrift Contributions for
each Plan Year (select one):
| | (1) Discretionary Formula:
A discretionary Matching Thrift Contribution equal to such a
dollar amount or percentage as determined by the Employer,
which shall be allocated (select one):
| | (a) based on the ratio of each Participant's Employee
Thrift Contribution for the Plan Year to the total
Employee Thrift Contributions of all Participants
for the Plan Year. If inserted, Matching Thrift
Contributions shall be subject to a maximum amount
of $_____ for each Participant or ____% of each
Participant's Compensation.
| | (b) in an amount not to exceed ____% of each
Participant's first ____% of Compensation
contributed as Employee Thrift Contributions for
the Plan Year. If any Matching Thrift Contribution
remains, it is allocated to each such Participant
in an amount not to exceed ___% of the next ____%
of each Participant's Compensation contributed
as Employee Thrift Contributions for the Plan Year.
Any remaining Matching Thrift Contribution shall be
allocated to each such Participant in the ratio that such
Participant's Employee Thrift Contributions for the Plan
Year bears to the total Employee Thrift Contributions of all
such Participants for the Plan Year. If inserted, Matching
Thrift Contributions shall be subject to a maximum amount of
$_____ for each Participant or ____% of each Participant's
Compensation.
17
<PAGE>
| | (2) Nondiscretionary Formula:
A nondiscretionary Matching Thrift Contribution for
each Plan Year equal to (select one):
| | (a) ___% of each Participant's Compensation
contributed as Employee Thrift Contributions.
If inserted, Matching Thrift Contributions shall
be subject to a maximum amount of _________ for
each Participant or ___% of each Participant's
Compensation.
| | (b) ___% of the first ___% of the Participant's
Compensation contributed as Employee Thrift
Contributions and ___% of the next ___% of the
Participant's Compensation contributed as
Employee Thrift Contributions. If inserted,
Matching Thrift Contributions shall be subject
to a maximum amount of $___ for each Participant
or %___ of each Participant's Compensation.
D. Qualified Matching Contributions
If selected below, the Employer may make Qualified Matching Contributions
for each Plan Year (select all those applicable):
(1) In its discretion, the Employer may make Qualified Matching
Contributions on behalf of (select one):
| | (a) all Participants who make Employee Thrift Contributions.
| | (b) only those Participants who are Nonhighly Compensated
Employees and who make Employee Thrift Contributions.
(2) Qualified Matching Contributions will be contributed and
allocated to each Participant in an amount equal to:
| | (a) ___% of the Participant's Employee Thrift
Contributions. If inserted, Qualified Matching
Contributions shall not exceed ___% of the
Participant's Compensation.
| | (b) such an amount, determined by the Employer, which is
needed to meet the ACP Test.
ARTICLE VI. Participant Contributions
Participant Voluntary Nondeductible Contributions
Participant Voluntary Nondeductible Contributions are (select one):
| | (a) permitted.
|X| (b) not permitted.
18
<PAGE>
ARTICLE VII. Vesting
A. Employer Contribution Accounts
(1) A Participant shall have a vested percentage in his or her
Profit-Sharing Contributions, Matching 401(k) Contributions and/or
Matching Thrift Contributions, if applicable, in accordance with the
following schedule (Select one):
Matching 401(k)
and/or Matching
Thrift Profit-Sharing
Contributions Contributions
------------- -------------
| | | | (a) 100% vesting immediately upon participation.
| | | | (b) 100% after ___ (not more than 5) years of
Vesting Service.
| | | | (c) Graded vesting schedule:
___% ___% after 1 year of Vesting Service;
___% ___% after 2 years of Vesting Service;
___% ___% (not less than 20%) after 3 years of Vesting
Service;
___% ___% (not less than 40%) after 4 years of Vesting
Service;
___% ___% (not less than 60%) after 5 years of Vesting
Service;
___% ___% (not less than 80%) after 6 years of Vesting
Service;
100% after 7 years of Vesting Service.
19
<PAGE>
(2) Top Heavy Plan
Matching 401(k)
and/or Matching
Thrift Profit-Sharing
Contributions Contributions
------------- -------------
Vesting Schedule (Select one):
| | | | (a) 100% vesting immediately upon participation.
| | | | (b) 100% after ___ (not more than 3) years of
Vesting Service.
| | | | (c) Graded vesting schedule:
___% ___% after 1 year of Vesting Service;
___% ___% (not less than 20%) after 2 years of Vesting
Service;
___% ___% (not less than 40%) after 3 years of Vesting
Service;
___% ___% (not less than 60%) after 4 years of Vesting
Service;
___% ___% (not less than 80%) after 5 years of Vesting
Service;
100% after 6 years of Vesting Service.
Top Heavy Ratio:
(a) If the adopting Employer maintains or has ever
maintained a qualified defined benefit plan, for
purposes of establishing present value to compute the
top-heavy ratio, any benefit shall be discounted only
for mortality and interest based on the following:
Interest Rate: 8%
-----
Mortality Table: UP'84
-----
(b) For purposes of computing the top-heavy ratio, the
valuation date shall be the last business day of each
Plan Year.
20
<PAGE>
B. Allocation of Forfeitures
Forfeitures shall be (select one from each applicable column):
Matching 401(k)
and/or Matching Profit-Sharing
Thrift Contributions Contributions
-------------------- -------------
| | | | (1) used to reduce Employer contributions
for succeeding Plan Year.
| | | | (2) allocated in the succeeding Plan Year
in the ratio which the Compensation of
each Participant for the Plan Year
bears to the total Compensation of all
Participants entitled to share in the
Contributions. If the Plan is
integrated with Social Security,
forfeitures shall be allocated in
accordance with the formula elected by
the Employer.
C. Vesting Service
For purposes of determining Years of Service for Vesting Service
[select (1) or (2) and/ or (3)]:
| | (1) All Years of Service shall be included.
| | (2) Years of Service before the Participant attained age 18
shall be excluded.
| | (3) Service with the Employer prior to the effective date of
the Plan shall be excluded.
ARTICLE VIII. Deferral of Benefit Distributions,
In-Service Withdrawals and Loans
A. Deferral of Benefit Distributions
401(k) and/ Profit-
or Thrift Sharing
--------- -------
| | | | If this item is checked, a Participant's vested
benefit in his or her Employer Accounts shall be payable as
soon as practicable after the earlier of: (1) the date the
Participant terminates Employment due to Disability, or (2) the
end of the Plan Year in which a terminated Participant attains
Early Retirement Age, if applicable, or Normal Retirement Age.
21
<PAGE>
B. In-Service Distributions
|X| (1) In-service distributions may be made from any of the Participant's
vested Accounts, at any time upon or after the occurrence of the
following events (select all applicable):
|X| (a) a Participant's attainment of age 59-1/2.
|X| (b) due to hardships as defined in Section 5.9 of the Plan.
| | (2) In-service distributions are not permitted.
C. Loans are:
401(k) and/ Profit-
or Thrift Sharing
--------- -------
|X| | | (1) permitted.
| | | | (2) not permitted.
ARTICLE IX. Group Trust
| | If this item is checked, the Employer elects to establish a Group
Trust consisting of such Plan assets as shall from time to time be
transferred to the Trustee pursuant to Article X of the Plan. The
Trust Fund shall be a Group Trust consisting of assets of this Plan
plus assets of the following plans of the Employer or of an
Affiliate:
ARTICLE X. MISCELLANEOUS
A. Identification of Sponsor
The address and telephone number of the Sponsor's authorized
representative is 800 Scudders Mill Road, Plainsboro, New Jersey
08536; (609) 282-2272. This authorized representative can answer
inquiries regarding the adoption of the Plan, the intended meaning
of any Plan provisions, and the effect of the opinion letter.
The Sponsor will inform the adopting Employer of any amendments made
to the Plan or the discontinuance or abandonment of the Plan.
22
<PAGE>
B. Plan Registration
1. Initial Registration
This Plan must be registered with the Sponsor, Merrill Lynch,
Pierce, Fenner & Smith Incorporated, in order to be considered a
Prototype Plan by the Sponsor. Registration is required so that
the Sponsor is able to provide the Administrator with documents,
forms and announcements relating to the administration of the
Plan and with Plan amendments and other documents, all of which
relate to administering the Plan in accordance with applicable
law and maintaining compliance of the Plan with the law.
The Employer must complete and sign the Adoption Agreement. Upon
receipt of the Adoption Agreement, the Plan will be registered
as a Prototype Plan of Merrill Lynch, Pierce, Fenner & Smith
Incorporated. The Adoption Agreement will be countersigned by an
authorized representative and a copy of the countersigned
Adoption Agreement will be returned to the Employer.
2. Registration Renewal
Annual registration renewal is required in order for the
Employer to continue to receive any and all necessary updating
documents. There is an annual registration renewal fee in the
amount set forth with the initial registration material. The
adopting Employer authorizes Merrill Lynch, Pierce, Fenner &
Smith Incorporated, to debit the account established for the
Plan for payment of agreed upon annual fee; provided, however,
if the assets of an account are invested solely in
Participant-Directed Assets, a notice for this annual fee will
be sent to the Employer annually. The Sponsor reserves the right
to change this fee from time to time and will provide written
notice in advance of any change.
C. Prototype Replacement Plan
This Adoption Agreement is a replacement prototype plan for the (1)
Merrill Lynch Special Prototype Defined Contribution Plan and Trust
- 401(k) Plan #03-004 and (2) Merrill Lynch Asset Management, Inc.,
Special Prototype Defined Contribution Plan and Trust - 401(k)
Plan Adoption Agreement #03-004.
D. Reliance
The adopting Employer may not rely on the opinion letter issued by
the National Office of the Internal Revenue Service as evidence that
this Plan is qualified under Code Section 401. In order to obtain
reliance, the Employer must apply to the appropriate Key District
Director of the Internal Revenue Service for a determination letter
with respect to the Plan.
23
<PAGE>
EMPLOYER'S SIGNATURE
Name of Employer: The Raymond Corporation
By: /s/ William B. Lynn
------------------------------------
Authorized Signature
William B. Lynn
------------------------------------
Print Name
Executive Vice President
------------------------------------
Title
Dated: 30 June, 1995
TO BE COMPLETED BY MERRILL LYNCH:
Sponsor Acceptance:
Subject to the terms and conditions of the Prototype Plan and this Adoption
Agreement, this Adoption Agreement is accepted by Merrill Lynch, Pierce, Fenner
& Smith Incorporated as the Prototype Sponsor.
Authorized Signature: G. Barry Ross
24
<PAGE>
TRUSTEE(S) SIGNATURE
This Trustee Acceptance is to be completed orly if the Employer appoints one or
more Trustees and does not appoint a Merrill Lynch Trust Company as Trustee.
The undersigned hereby accept all of the terms, conditions, and obligations of
appointment as Trustee under the Plan. If the Employer has elected a Group Trust
in this Adoption Agreement, the undersigned Trustee(s) shall be the Trustee(s)
of the Group Trust.
AS TRUSTEE:
- ------------------------------ ----------------------------------
(Signature) (print or type name)
- ------------------------------ ----------------------------------
(Signature) (print or type name)
- ------------------------------ ----------------------------------
(Signature) (print or type name)
- ------------------------------ ----------------------------------
(Signature) (print or type name)
Dated: _____________________, 19___
25
<PAGE>
THE MERRILL LYNCH TRUST COMPANIES AS TRUSTEE
This Trustee Acceptance and designation of Investment Committee are to be
completed only when a Merrill Lynch Trust Company is appointed as Trustee.
To be completed by the Employer:
Designation Of Investment Committee
The Investment Committee for the Plan is (print or type names):
Name: _________________________________________________
Name: _________________________________________________
Name: _________________________________________________
Name: _________________________________________________
To be completed by Merrill Lynch Trust Company.
Acceptance By Trustee:
The undersigned hereby accept all of the terms, conditions, and obligations of
appointment as Trustee under the Plan. If the Employer has elected a Group Trust
in this Adoption Agreement, the undersigned Trustee(s) shall be the Trustee(s)
of the Group Trust.
SEAL MERRILL LYNCH TRUST COMPANY OF AMERICA
By: /s/
----------------------------------
Dated: July 25, 1995
---------------
26
<PAGE>
THE MERRILL LYNCH TRUST COMPANIES AS ONE OF THE TRUSTEES
This Trustee Acceptance is to be completed only if, in addition to a Merrill
Lynch Trust Companies as Trustee, the Employer appoints an additional Trustee of
a second trust fund.
The undersigned hereby accept all of the terms, conditions, and obligations of
appointment as Trustee under the Plan. If the Employer has elected a Group Trust
in this Adoption Agreement, the undersigned Trustee(s) shall be the Trustee(s)
of the Group Trust.
as TRUSTEE
___________________________ __________________________________
(Signature) (print or type name)
Dated: _______________, 19___
SEAL MERRILL LYNCH TRUST COMPANY [________________]
By:______________________________
Dated: _______________, 19___
DESIGNATION OF INVESTMENT COMMITTEE
The Investment Committee for the Plan is (print or type names):
Name: _________________________________________________
Name: _________________________________________________
Name: _________________________________________________
Name: _________________________________________________
27
<PAGE>
EXHIBIT 10.20
THE RAYMOND CORPORATION
1970 DEFERRED COMPENSATION PLAN
Restated as of September 1, 1994
As Amended through December 14, 1995
1.0 BACKGROUND
--------------
1.1 Introduction
------------
The Raymond Corporation 1970 Deferred Compensation Plan ("Plan")
provides the opportunity for Outside Directors ("Director") to defer
all or part of their fees and key employees to defer part of their
salary and/or bonus ("Compensation") payable by The Raymond Corporation
or its subsidiaries ("Company") to future years as part of their
financial planning.
2.0 EXPLANATION OF PLAN
-----------------------
2.1 Effective Date
--------------
The Plan originally was effective November 1, 1970, and has been
subsequently amended several times. This Restated Plan will be
effective as of September 1, 1994.
2.2 Eligibility
-----------
The Plan is available (a) to Directors of the Company and (b) to
officers and employees of the Company who are designated as eligible by
the Deferred Compensation Committee described in Section 3.4
("Committee"). Employees who are also members of the Board of Directors
of the Company ("Board") shall for the purposes of this Plan not be
included in the term "Director" when used separately.
2.3 Interest in the Plan; Deferred Compensation Account
---------------------------------------------------
For each eligible person who elects to defer Compensation earned during
a year ("Participant"), separate Deferred Compensation Accounts shall
be established for that year for each type of Compensation deferred. A
Participant's interest in the Plan shall be the Participant's right to
receive payments under the terms of the Plan. A Participant's payments
from the Plan shall be based upon the value attributable to the
Participant's Deferred Compensation Accounts, which on a particular
date is equal to the amount credited to that Account.
2.4 Amount of Deferral
------------------
(a) An employee may elect to defer receipt of up to one half of his
or her Compensation in increments of $1,000. A Director may
elect to defer any amount of Directors' fees, however described,
without limitation.
<PAGE>
(b) Notwithstanding Section 2.4(a), Compensation shall not be
deferred to the extent that a Participant's salary currently
payable would be less than the Social Security wage base in
effect for that year.
2.5 Time of Election of Deferral
----------------------------
(a) An election to defer Compensation must be made before the
Compensation is earned. In the case of salary, bonus and
Directors' fees, the election to defer must be made prior to the
year in which the salary, bonus or Directors' fees will be
earned.
(b) Once made, an election to defer for a particular year is
irrevocable.
2.6 Accounts and Investments
------------------------
(a) The right of any Participant to receive future payments under
the provisions of the Plan shall be a contractual obligation of
the Company but shall be subject to the claims of the creditors
of the Company against the general assets of the Company.
(b) The amount of Compensation deferred will be credited to the
Participant's Deferred Compensation Account as soon as practical
after the Compensation would have been paid had there been no
election to defer. At the end of each quarter the Account shall
be credited with assumed interest earnings at the monthly
average bank "prime rate" as reported in The Wall Street Journal
for each month in the quarter, compounded quarterly ("Interest
Fund").
2.7 Reinvestment of Income
----------------------
Income that is deemed to be earned in the Interest Fund shall be deemed
reinvested in that fund.
2.8 Payment of Deferred Compensation
--------------------------------
(a) No withdrawal may be made from the Participant's Deferred
Compensation Accounts except as provided in this Section.
(b) At the time the election to defer is made, the Participant shall
choose the date on which payment of the resulting value in the
Deferred Compensation Account is to commence, which date shall
be either April 1 or October 1 of the year specified by the
Participant ("Payment Commencement Date"). In the case of
Director Participants, the Payment Commencement Date shall be no
later than the first day of the month following the
Participant's retirement from the Board. In the case of key
employee Participants, the Payment Commencement Date shall be no
later than October 1 of the year following the year during which
the key employee becomes 65 years of age.
(c) At the time the election to defer is made, the Participant may
choose to receive payments either (i) in a lump sum, or (ii) in
up to ten annual installments (which may be payable monthly).
The method of paying a Deferred Compensation Account of a
Participant shall be called the "Method of Payment." The amount
of any payment under the Plan shall be the value attributable to
the Deferred Compensation Account on the last day of the month
preceding the month of the payment date, divided by the number
of payments remaining to be made including the payment for which
the amount is being determined.
<PAGE>
(d) In the event of a Participant's death or total disability before
the Participant has received all of the Participant's Deferred
Compensation Accounts, the value of the Accounts (excluding the
amount being paid in installments described in the following
sentence) shall be paid either (i) in a lump sum, or (ii) in two
to ten annual installments commencing on the first day of April
of the year following the Participant's death or total
disability, as Participant at the time of deferral may elect. If
Participant is receiving installment payments from a Deferred
Compensation Account at the time of death or total disability,
the balance in that Account shall be paid to Participant's
estate or to Participant over the installments remaining to be
paid.
(e) A Participant may not change the Payment Commencement Date or
Method of Payment for a Deferred Compensation Account after an
election has been made. This shall not prevent the Participant
from choosing a different Payment Commencement Date and/or
Method of Payment for amounts to be deferred in subsequent
years.
(f) Notwithstanding any Payment Commencement Date or Method of
Payment selected by a Participant, if the Participant's
employment with the Company terminates other than by reason of
(i) retirement pursuant to a retirement plan of the Company
including retirement from the Board pursuant to Company policy,
(ii) the Participant's death, or (iii) the Participant's total
disability, then payment will be made to the Participant in a
lump sum or in the number of annual installments previously
selected by the Participant, as the Committee in its discretion
shall decide. In either case, the Payment Commencement Date
shall be the first day of April or October of the year of
termination or of the year following the year of termination,
whichever is selected by the Committee.
(g) If, in the discretion of the Committee, the Participant has a
need for funds due to an unforeseeable emergency which is caused
by an event beyond the Participant's control and that would
result in a financial hardship if the Participant were not
permitted to withdraw, a payment may be made to the Participant
from his or her Deferred Compensation Accounts at a date earlier
than the Payment Commencement Date. A payment based upon
financial hardship cannot exceed the amount required to meet the
immediate financial need created by the hardship. The
Participant requesting a hardship payment must supply the
Committee with a statement indicating the nature of the need
that created a financial hardship, the fact that all other
reasonably available resources are insufficient to meet the
need, and any other information which the Committee decides is
necessary to evaluate whether a financial hardship exists.
(h) Payments from the Plan shall be in cash.
<PAGE>
(i) All payments made by the Company shall be subject to all taxes
required to be withheld under applicable laws and regulations of
any governmental authorities.
2.9 Manner of Electing Deferral and Payment Options
-----------------------------------------------
(a) In order to make any elections or choices permitted hereunder,
the Participant must give written notice to the Committee. A
notice electing to defer Compensation shall specify:
(i) the percentage or amount and type of Compensation to be
deferred;
(ii) the Method of Payment and the Method of Payment to the
Participant or the Participant's designated beneficiary
in the event of the Participant's total disability or
death; and
(iii) the Payment Commencement Date.
(b) An election by a Participant to defer Compensation (including
the selection of a Payment Commencement Date and Method of
Payment) shall apply only to Compensation deferred in the
calendar year for which the election is effective.
(c) Prior to the commencement of each calendar year, the Company
will provide election forms to permit Participants to defer
Compensation to be earned during that calendar year.
3.0 ADMINISTRATION OF THE PLAN
------------------------------
3.1 Statement of Account
--------------------
Statements setting forth the value of the Participant's Deferred
Compensation Accounts will be sent to each Participant quarterly or
more often as the Committee may elect.
3.2 Assignability
-------------
No right to receive payments hereunder may be transferred, assigned, or
pledged by a Participant, except for transfers by will or by the laws
of descent and distribution.
3.3 Business Days
-------------
In the event any date specified herein falls on a Saturday, Sunday, or
legal holiday, such date shall be deemed to refer to the next business
day thereafter.
<PAGE>
3.4 Administration
--------------
This Plan shall be administered by the Administration Committee, which
shall consist of four employees of the Company appointed by the Board.
The Committee shall have the authority to adopt rules and regulations
for carrying out the Plan, and interpret, construe and implement the
provisions of the Plan. The decisions of the Committee shall be final
and binding on the Participants.
3.5 Amendment
---------
This Plan may at any time and from time to time be amended or
terminated by the Board. No amendment or termination shall, without the
consent of a Participant, adversely affect such Participant's interest
in the Plan.
3.6 Liability
---------
(a) Except in the case of willful misconduct, no director or
employee of the Company shall be personally liable for any act
done or omitted to be done by such person with respect to this
Plan.
(b) The Company shall indemnify, to the fullest extent permitted by
law, members of the Committee and directors and employees of the
Company, both past and present to whom are or were delegated
duties, responsibilities and authority with respect to the Plan,
against any and all claims, losses, liabilities, fines,
penalties and expenses (including, but not limited to, all legal
fees relating thereto), reasonably incurred by or imposed upon
such persons, arising out of any act or omission in connection
with the operation and administration of the Plan, other than
willful misconduct.
Adopted by the Board: October 13, 1994
<PAGE>
EXHIBIT 10.22
PROFIT SHARING RETIREMENT PLAN
OF
THE RAYMOND CORPORATION
PLAN A
Dated 01/01/76
Amended 10/01/82
Amended 12/31/83
Amended 08/30/85
Revised 12/16/85
Amended 12/10/92
Revised 07/23/93
Amended 01/01/94
Amended 03/02/96
<PAGE>
CONTENTS
PAGE
----
I. DEFINITIONS..................................................1
II. ELIGIBILITY..................................................3
III. EMPLOYER CONTRIBUTIONS.......................................4
IV. ALLOCATION OF EMPLOYER CONTRIBUTIONS AMONG
PARTICIPANTS.................................................4
V. MAINTENANCE OF PARTICIPANTS' ACCOUNTS........................7
VI. NON-FORFEITABLE INTEREST.....................................8
VII. RETIREMENT DATE..............................................9
VIII. DISTRIBUTION OF BENEFITS.....................................9
IX. ALIENATION PROHIBITED.......................................10
X. ADMINISTRATIVE COMMITTEE AND ADMINISTRATION.................10
XI. AMENDMENT AND TERMINATION...................................12
XII. MISCELLANEOUS...............................................13
XIII. TOP HEAVY RULES.............................................14
XIV. DISTRIBUTIONS AFTER DECEMBER 31, 1992.......................17
<PAGE>
SECTION I - DEFINITIONS
The following words and terms as used in this Plan shall have the meaning set
forth below, unless a different meaning is clearly required by the context. The
masculine pronoun, wherever used, shall include the feminine where applicable,
and the singular shall include the plural:
1.1 "Board" or "Board of Directors" means the Board of Directors of the
Employer.
1.2 "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
1.3 "Earnings" means the amount of income paid to a Participant by the
Company which is reportable for federal income tax purposes,
including overtime, bonuses, commissions, premium pay, or any other
compensations or special payouts considered as wages under current
tax withholding regulations, but excluding taxable fringe benefits.
Earnings shall include any amount which is contributed by the
Company pursuant to a salary reduction agreement and which is not
included in the gross income of the Participant under section 125,
402(e)(3), 402(h)(1)(B) or 403(b) of the Code. For Plan Years
beginning after December 31, 1988 and before January 1, 1994, the
Earnings taken into account for a Participant for any Plan Year
shall not exceed $200,000. For Plan Years beginning after December
31, 1993, the Earnings taken into account for a Participant for any
Plan Year shall not exceed $150,000. Both the $200,000 and $150,000
limitations shall be adjusted for increases in the cost of living in
accordance with section 401(a)(17) of the Code. In determining the
Earnings of a Participant for purposes of the $200,000 and $150,000
limitations, the rules of Section 414(q)(6) of the Code shall apply,
except that in applying such rules, the term "family" shall include
only the spouse of the Participant and any lineal descendants of the
Participant who have not attained age 19 before the close of the
Plan Year. Thus, if the adjusted $200,000 or $150,000 limitation is
exceeded, then the limitation shall be prorated among the affected
individuals in proportion to each such individual's Earnings prior
to the application of this limitation.
1.4 "Effective Date" means the date which the Board of Directors has
specified in its vote authorizing adoption of this Plan.
1.5 "Employee" means any employee of the Employer who is paid on the
weekly salaried rate basis (subject to overtime compensation), but
excluding any person classified as a "Leased Employee" and any
person who is included in a unit of employees covered by a
collective bargaining agreement.
1.6 "Employer" means The Raymond Corporation, a corporation with its
principal offices in the State of New York, and any designated
corporate subsidiary.
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1.7 "Fund" means all cash, securities, and other property held by the
Trustees under the Trust Agreement.
1.8 "Fund's Net Gains or Losses" means the results of the Fund for the
year under consideration as measured by the Fund's income, expenses,
and unrealized capital appreciation or depreciation.
1.9 "Leased Employee" means any person as so defined in section 414(n)
of the Code.
1.10 "Leave of Absence" means an absence on leave granted in writing by
and at the convenience of the Employer, either prior to, during, or
after the taking thereof; or an absence on Military Service.
Leave of Absence shall not include any layoff.
The rules governing the granting of such Leave of Absence shall be
uniformly and consistently applied to all Employees under similar
circumstances.
1.11 "Military Service" means only service on active duty in the Armed
Forces of the United States during the period of first enlistment,
if voluntary, and during the period of enforced service, if
involuntary, under laws enacted by the Congress of the United
States.
1.12 "Participant" means an Employee who has qualified under the Plan, as
provided in Section II, and whose employment with the Employer has
not terminated.
1.13 "Plan" means The Profit Sharing Retirement Plan of The Raymond
Corporation as set forth herein, or as from time to time amended.
1.14 "Plan Year" means the calendar year.
1.15 "Service" means all uninterrupted employment with the Employer
subsequent to the date of incorporation except as set forth in this
paragraph. Service of an Employee is interrupted by his death or
retirement or by absence of the Employee due to his:
a) Voluntarily quitting the service; or
b) Discharge or termination of employment; or
c) Suspension which continues for more than two months; or
d) Temporary disability or illness which continues for more than
one year; or
e) Layoff which continues for more than one year.
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Service is not interrupted or reduced by:
a) Absence of the character of, and for periods less than these
stated in the preceding clauses (c), (d) and (e), as the case
may be; or
b) Vacations granted by the Employer; or
c) Leaves of Absence; provided, however, that after any such
absence on Military Service, the Employee shall have reported
for work within the time prescribed by applicable law after
final release or discharge from active duty.
d) "Parental Leave", meaning a period in which the Employee is
absent from work because of the pregnancy of the Employee, the
birth of a child of the Employee, or the placement of a child
with the Employee in connection with the adoption of that child
by the Employee, or for purposes of caring for that child for a
period beginning immediately following such birth or placement.
Such period is not to extend beyond 501 hours of the Employee's
regularly scheduled work hours, had the Parental Leave not been
exercised.
1.16 "Trust Agreement" means the Agreement by and between the Employer
and the Trustees dated September 19, 1986 and which is hereby made a
part of the Plan.
1.17 "Trustees" means such individuals as shall have entered into the
Trust Agreement with the Employer.
1.18 "Valuation Date" means the date on which the Fund assets shall be
evaluated.
SECTION II - ELIGIBILITY FOR PARTICIPATION
2.1 Any Employee who on December 31, 1991 had not retired from
employment with the Employer and who was a Participant in the Plan
as in effect on December 31, 1991 shall be continued as a
Participant under this Plan. Effective January 1, 1994, the
following Employees shall not be eligible to participate in the
Plan: (i) Temporary Employees, i.e., those hired on a temporary
basis for a term not to exceed twenty-four (24) months; (ii) Co-op
students; (iii) Apprentices, i.e., high school students who work no
more than ten hours per week during the school year, and (iv) Leased
Employees.
2.2 Any Employee not covered by Section 2.1 shall become a Participant
on his date of hire.
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2.3 Notwithstanding the foregoing, no Employee shall become eligible to
participate while on a Leave of Absence.
2.4 Any Participant, who terminates employment and who is subsequently
rehired, shall again become a Participant as of the date of his
re-hire.
2.5 Any individual who transfers into covered employment such that he
becomes an Employee, shall become a Participant on the date of
transfer.
2.6 A Participant who transfers out of covered employment such that he
is no longer an Employee shall cease his participation on the date
of transfer.
SECTION III - EMPLOYER CONTRIBUTIONS
3.1 The amount of the Employer contribution each year shall be voted by
the Board of Directors on or before the last day of each fiscal
year; provided, however, such contribution shall not be more than
15% of the total compensation (including bonuses and the like, but
excluding contributions under this Plan) paid or accrued during the
year to all eligible Employees participating in the Plan, plus the
maximum amount deductible under the carry-over provisions of the
Internal Revenue Code relating to contributions in previous years of
less than the maximum amount permissible. Such amount shall be
contributed out of net profits, as such net profits are determined
in the accordance with acceptable accounting practices and before
any provisions for federal and state income taxes, if any, and any
contributions under this Plan.
3.2 Each Employer contribution shall be allocated among Participants, as
provided in Section IV, and shall be paid to the Trustees to be
held, managed, and disposed of by them in accordance with the terms
of the Trust Agreement.
3.3 Payment of the Employer's contribution to the Trustees shall be made
within the time limit established by the Internal Revenue Service.
SECTION IV - ALLOCATION OF EMPLOYER CONTRIBUTIONS AMONG PARTICIPANTS
4.1 The Employer shall certify to the Trustees, as of the last day of
the Employer's fiscal year, (which is the same as the Plan Year),
the name and Earnings of each Participant; and at the time the name
of a Participant is first certified, the Employer shall also certify
his sex, date of birth, and the date that he became a Participant.
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4.2 Each Participant who is on the payroll of the Employer as of
December 1 of a Plan Year is eligible to share in the allocation of
the Employer contributions in Section 4.3.
4.3 Each Employer contribution made as of the last day of the Employer's
fiscal year shall be allocated among Employees who are then
Participants. Such allocation shall be made on the basis of each
Participant's total Earnings, as defined in the Plan, in accordance
with the following formula.
Each shall be allocated that portion of the Employer
contribution which bears the same relationship to the total
Employer contribution as his Earnings bears to the total
Earnings of all Participants.
A Participant who is on a Leave of Absence or Layoff shall be
entitled to an allocation on the basis of his Earnings as
provided in the above formula. A former Participant who
transferred out of the plan shall be entitled to an allocation
in the year of transfer on the basis of his Earnings while a
Participant. A Participant who retires under Section VII during
the last calendar quarter of a Plan Year shall be entitled to
an allocation on the basis of his Earnings.
4.4 Limitations on Annual Additions
a) Limitations
If a Participant under this Plan is not also a Participant in
any defined benefit plan to which the Employer contributes,
then the total Annual Additions to such Participant's account
in any Plan Year beginning after December 31, 1975, for all
defined contribution plans maintained by the Employer, in the
aggregate, shall not exceed the lesser of: (a) 25% of the
Participant's Compensation in such Plan Year, or (b) $30,000
(or such higher amount to which said $30,000 may be adjusted,
pursuant to Code section 415(c).
For this purpose "Annual Additions" means the Participant's
share of the Employer contributions.
For purposes of this Section, "Compensation" means the
Participant's wages, salaries, fees and other amounts paid for
personal services actually rendered in the course of
employment, including (by way of example and not limitation),
commission, tips, bonus, overtime pay and earnings as a
percentage of profits, but excluding: (1) contributions to
other qualified plans, deferred compensation plans and
simplified employee pensions; (2) distributions from deferred
compensation plans and qualified plans; (3) amounts realized
from the exercise of a non-qualified stock option or sale or
disposition of stock under a qualified stock option or when
restricted stock (or property) held by an Employee either
becomes freely transferable or is no longer subject to a
substantial risk of forfeiture; and (4) other amounts which
receive special tax benefits such as premiums for group-term
life insurance (only if not included in gross income of the
Participant) and contributions toward the purchase of an
annuity contract (whether or not contributions are includible
in gross income of the Participant.)
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b) Other Plans
If a Participant under this Plan is also a Participant under
any defined benefit plan to which the Employer contributes,
then for any Plan Year, the sum of such Participant's defined
benefit plan fraction in such Plan Year and such Participant's
defined contribution plan fraction in the same Plan Year shall
not exceed 1.0. If the sum of the said fractions is in excess
of 1.0, then the Participant's benefits under the defined
benefit plan shall be reduced by an amount sufficient to
eliminate the excess.
For the purposes of this Section "defined contribution plan"
means any plan which provides for an individual account for
each Participant and for benefits based solely on the amount
contributed to the Participant's account, and any income,
expenses, gains and losses thereto and any forfeitures of
accounts of other Participants which may be allocated to such
Participant's account. A "defined benefit plan" means any Plan
which is not a defined contribution plan. The "defined benefit
plan fraction" and the "defined contribution plan fraction" for
any Plan Year shall be calculated as follows:
1) The numerator of the first fraction is the projected
annual benefit of the participant under this Plan, and
the denominator is the lesser of (i) the product of
1.25, multiplied by the dollar limitation in effect
under Code section 415(b) for the limitation year, or
(ii) the product of 1.4, multiplied by 100% of the
Participant's average compensation during the three
consecutive years of his service as an Employee for
which he had the greatest aggregate compensation from
the Employer.
2) The numerator of the second fraction is the sum of the
Annual Additions to such Participant's account under the
defined contribution plan maintained by the Employer in
such limitation year and for all prior limitation years,
and the denominator is the sum of the lesser of the
following amounts determined under the defined
contribution plan maintained by the Employer which could
have been made under that plan for such limitation year
and for all prior Plan Years if such plan has been in
effect for each such limitation year: (i) the product of
1.25, multiplied by $30,000 (or such greater amount as
may be applicable under section 415(c) of the Code), or
(ii) the product of 1.4, multiplied by 25% of the
Participant's Compensation for the limitation year.
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SECTION V - MAINTENANCE OF PARTICIPANTS' ACCOUNTS
5.1 The Trustees shall create and maintain an account for each
Participant, which account shall be evaluated on each Valuation
Date. Normally, the Valuation Date shall be the last day of each
calendar quarter; however, the Trustees may, upon the occasion of a
death, retirement, or other termination of employment subsequent to
an extreme fluctuation in the value of the Fund due to market
conditions, cause the accounts to be evaluated, provided such
evaluation does not result in any discrimination among Employees.
A Participant's Account shall be credited with that portion of the
Employer contribution allocated to the Participant and a
proportionate share of the Fund's Net Gains or Losses.
5.2 The Trust Fund will be divided into three Investment Funds:
a) A Bond Fund, invested principally in corporate, municipal, or
United Stated Government Bonds, debentures, notes, certificates
or other similar evidences of indebtedness;
b) A Common Stock Fund, invested principally in stocks of
corporations, including the Employer's common stock; and
c) A Money Market Fund, invested principally in U.S. Treasury
Bills, Commercial Paper Bank Certificate of Deposits, Banker
Acceptance, or other similar short term indebtedness.
The Trustee's investment powers with respect to each Investment Fund
are more fully set forth in the Trust Agreement. Each Participant in
the Plan as of January 1, 1992 shall have set up in his Account the
amount of money, securities, etc., which were held in the accounts
under the Plan as of December 31, 1991. Thereafter, in accordance
with the following provisions the Participant can change his
investment elections as follows:
a) A Participant may change his investment election no more than
once every Plan calendar quarter by giving at least 30 days
prior written notice to the Administrative Committee, who in
turn shall advise the Trustee of such election.
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b) The changed investment election shall become effective as of
the first day of the Plan calendar quarter beginning after the
expiration of the notice period.
c) A Participant may transfer all or any fraction of the value of
his Account in any one of the designated investment accounts,
in multiples of 25%. If a Participant has all his investments
in any one fund, he may transfer up to 50% of the value to
another fund.
d) The requested transfer will be effected by the Trustee as of
the first day of the next calendar quarter subsequent to the
receipt of the request, provided that such request is received
30 days prior to such first day of the subsequent calendar
quarter.
Each Participant shall have an interest in the Investment Fund in
which he has elected to have any part of his allotment held and
invested. His interest at any time shall be equal to the sum of his
allotments of the Company contribution that have been credited to
his account in the Fund, adjusted from time to time to reflect his
proportionate share of the income and losses realized by such Fund
and of the net appreciation or depreciation in the value of such
Fund. The Trustee shall maintain accounts to reflect the interest of
each Participant in each Investment Fund at any one time. On each
Valuation Date, the Trustee shall ascertain the value of the
interests of Participants therein. The determinations of the Trustee
shall be conclusive and the Trustee shall not incur any liability
for any determination required by the Plan and made in good faith.
5.3 The proportionate share of the Fund's Net Gains or Losses to be
credited on each Valuation Date, as provided in Section 5.1, shall
be computed by multiplying the following amounts with respect to
each Participant's account:
a) Participant's Account - The amount credited on the preceding
Valuation Date, including any Employer contribution credited on
such date;
by the ratio that
b) The market value, as determined by the Trustees, of the assets
of the Fund on the current Valuation Date, exclusive of the
value of any Employer contribution made on such Valuation Date,
less the aggregate amount credited to the Participants'
Accounts, as such accounts defined in (a) of this Section bears
to,
c) The aggregate amount credited to the Participants' Accounts,
such accounts are defined in (a) and (b) of this Section.
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SECTION VI - NON-FORFEITABLE INTEREST
6.1 Upon death, retirement in accordance with the provisions of Section
VII, termination of employment, or discontinuance of contributions
under the Plan by the Employer, the full amount credited to the
Participant in his Participation Account shall become fully vested
and non-forfeitable.
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SECTION VII - RETIREMENT DATE
7.1 Normal Retirement - The normal retirement date of each Participant
shall be the first day of the month coinciding with or next
following the Participant's 65th birthday.
7.2 Total and Permanent Disability Retirement - A Participant who is
totally and permanently disabled may retire on the first day of any
month subsequent to the expiration of six months from the date of
disability. Such disability shall be established by the
certification to the Employer that the Participant by reason of
mental or physical disability is incapable of securing gainful
employment. Such certification shall be by (1) a physician selected
by the Participant and approved by the Employer or (2) by three
physicians, one selected by the Participant, one by the Employer and
the third by two physicians selected by the Participant and the
Employer. Expenses incurred in obtaining this certification shall be
absorbed, one-half by the Participant, and one-half by the Employer.
7.3 Deferred Retirement - A Participant may continue in the service of
the Employer beyond his normal retirement date. During such
continued employment, a Participant shall remain an active
Participant until his actual retirement.
SECTION VIII - DISTRIBUTION OF BENEFITS
8.1 Distribution of the vested interest of a Participant shall commence
when he breaks his Service as defined in Section 1.15.
8.2 Distribution of the vested interest of a Participant shall be in a
lump sum, except as may be required under the provisions of Section
9.1 or Section XIV.
8.3 a) A Participant's distribution shall begin not later than the
60th day following the end of the Plan Year in which occurs the
latest of
(i) the Participant's 65 birthday,
(ii) the tenth anniversary of the date on which he became a
Participant, or (iii) the date he terminates service
with the Employer.
b) In no event shall the provision of paragraph (a) above operate
so as to allow the Participant's distribution to begin later
than:
(i) the April 1 following the calendar year in which the
Participant's attains age 70 1/2, or
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(ii) in the case of a Participant who does not own either (A)
more than five percent of the outstanding stock of the
Employer, or (B) stock possessing more than five percent
of the total combined voting power of all stock of the
Employer, the April 1 following the calendar year in
which he retires as provided in Section VII.
8.4 Distribution of vested interest upon the death of the Participant
while still in the service of the Employer, or before the lump sum
value of his vested interests has been paid to him upon retirement,
shall be distributed as a lump sum payment to his surviving spouse,
if applicable. If there is no spouse the distribution may be made to
beneficiary if the Participant has filed with the Administrative
Committee a form designating a beneficiary. If no beneficiary has
been designated, the distribution shall be made to his estate.
8.5 Anything to the contrary notwithstanding, any distribution from the
Plan shall be made in accordance with section 401(a)(9) of the Code
and the regulations thereunder.
SECTION IX - ALIENATION PROHIBITED
9.1 To the extent permitted by law, none of the benefits or payments or
proceeds of any contract arising out of or by virtue of this Plan
shall be subject to any claim or any legal process by a creditor of
a Participant or of any beneficiary, and neither the Participant nor
any beneficiary shall have the right to anticipate, alienate,
encumber or assign any of the benefits, payments, proceeds, or
avails arising out of the Plan, other than pursuant to a "Qualified
Domestic Relations Order" pursuant to section 414(p) of the Code.
SECTION X - ADMINISTRATIVE COMMITTEE AND ADMINISTRATION
10.1 The general administration of the Plan and the responsibility for
carrying out the provisions of the Plan shall be placed in an
Administrative Committee of not less than three persons appointed
from time to time by the Board of Directors. Any member of the
Administrative Committee may resign by delivering his written
resignation to the Board of Directors and the Secretary of the
Administrative Committee.
10.2 The members of the Administrative Committee shall elect a Chairman
from their number and a Secretary who may be but need not to be one
of the members of the Administrative Committee; may appoint from
their number such committees with such powers as they shall
determine; may authorize one or more of their number or any agent to
execute or deliver any instrument or make any payment on their
behalf; may retain counsel, employ agents to provide such clerical,
accounting, actuarial and consulting services as they may require in
carrying out the provisions of the Plan; may allocate among
themselves or delegate to other persons all or such portion of their
duties hereunder, other than those granted to the Trustee under the
Trust instrument adopted for use in implementing the Plan, as they,
in their sole discretion shall decide.
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10.3 The Administrative Committee shall hold meetings upon such notice,
at such place or places, and at such time or times as it may from
time to time determine.
10.4 The Administrative Committee shall determine any question arising in
connection with the interpretation, application or administration of
the Plan (including any question of fact relating to age, service,
compensation and eligibility of Employees), and its decisions or
actions in respect thereof shall be conclusive and binding on all
persons and parties. All resolutions or actions taken by the
Administrative Committee shall be by affirmative vote or action of
not less than two members of the Administrative Committee.
10.5 Any act which the Plan authorizes or requires the Administrative
Committee to do may be done by a majority of its members. The action
of such majority expressed from time to time by a vote at a meeting
or in writing without a meeting shall constitute the action of the
Administrative Committee and shall have the same effect for all
purposes as if assented to by all members of the Administrative
Committee at the time of office.
10.6 No member of the Administrative Committee shall receive any
compensation from the Plan for his services as such.
10.7 The Employer shall furnish the Administrative Committee with such
information as may be reasonably necessary to enable the
Administrative Committee to perform its duties hereunder, and such
information, to the extent taken from the records of the Employer
shall be controlling upon the Administrative Committee and all other
persons and parties in interest unless the Employer shall otherwise
agree.
10.8 The Employer shall indemnify and save harmless any Administrative
Committee member of the Board against all claims, loss, damages,
liability, costs and expenses arising out of any act done or omitted
(whether by him, the Administrative Committee or any other
Administrative Committee member), unless due to his gross negligence
or willful misconduct.
10.9 Any person who thinks that he is entitled to a benefit under the
Plan shall have the right to file with the Administrative Committee
a written notice of claim for such benefit.
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Within 60 days after its receipt of such written notice of claim,
the Administrative Committee shall either grant or deny such Claim
provided, however, that any delay on the part of the Administrative
Committee in arriving at a decision shall not adversely affect
benefits payable under a granted claim. A decrease in the value of a
Participant's Account due to market value depreciation during the
processing of a claim shall not be deemed to be an adverse effect
attributable to Administrative Committee delay. The Administrative
Committee shall provide to each claimant:
a) The specific reasons for such denial;
b) Specific reference to the pertinent Plan provisions of which
the denial is based;
c) A description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary;
d) An explanation of the Plan's claim review procedure.
10.10 The members of the Administrative Committee shall use that degree of
care, skill, prudence and diligence that a prudent man acting in a
like capacity and familiar with such matters would use in his
conduct of a similar situation.
SECTION XI - AMENDMENT AND TERMINATION
11.1 The provisions of this Plan may be amended at any time and from time
to time by the Employer; provided, however, that no amendment:
a) Shall cause or permit any part of the Fund to revert to or
become the property of the Employer or to be diverted to
purposes other than for the exclusive benefit of Participants
and their beneficiaries hereunder;
b) Shall increase the duties or liabilities of the Trustees
without their written consent.
11.2 The Employer has established the Plan with the bona fide intention
and expectation that it will be able to make its contributions
indefinitely, but the Employer is not and shall not be under any
obligation or liability whatsoever to continue its contributions or
maintain the Plan for any given length of time and may, at its sole
and absolute discretion, discontinue such contributions or terminate
the Plan at any time without any liability whatsoever for such
discontinuance or termination.
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11.3 Upon termination of the Plan and Trust by formal written notice, or
in actual operation, after payment of all expenses and proportional
adjustments of accounts to reflect such expenses and Fund losses or
profits, each Participant; each former Participant, and each
beneficiary of a deceased Participant shall be entitled to receive
any amount then credited to his account in the Trust Fund. The
Trustees may make payments of such amounts in cash or in assets of
the Trust Fund.
11.4 The Plan may not be merged or consolidated with nor may its assets
or liabilities be transferred, except as provided in Section 5.2, to
any other Plan unless each Participant, spouse, retired Participant,
or beneficiary under the Plan would, if the resulting Plan were then
terminated, receive a benefit immediately after the merge,
consolidation, or transfer which is equal to or greater than the
benefit he would have been entitled to receive immediately before
the merger, consolidation, or transfer, if the Plan had been
terminated.
SECTION XII - MISCELLANEOUS
12.1 The adoption and maintenance of the Plan and Trust shall not be
deemed to be a contract between the Employer and any Employee.
Nothing herein contained shall be deemed to give to any Employee the
right to be retained in the employ of the Employer or to interfere
with the right of the Employer to discharge any Employee at any
time; nor shall it be deemed to give the Employer the right to
require any Employee to remain in its employ; nor shall it interfere
with the Employee's right to terminate his employment at any time.
12.2 All benefits payable under the Plan shall be paid or provided for
solely from the Trust and the Employer assumes no liability or
responsibility therefore.
12.3 If a Participant is reassigned by the Employer so that he becomes
eligible to participate in another defined contribution plan of the
Employer, such reassignment or transfer shall make him a Participant
immediately in the Plan covering his new position.
12.4 Irrespective of anything contained in this instrument as executed or
as hereafter amended, it shall be impossible for any part of the
Fund to revert to the Employer or to be used for or diverted to
purposes other than for the exclusive benefit of Participants,
former Participants, and beneficiaries, either by operation of the
Plan and Trust, by power or revocation or amendment, by collateral
agreement, or by any other means.
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12.5 Each Participant shall designate, in writing, a beneficiary to
receive any benefits payable under the Plan upon the Participant's
death, such designation to be filed with the Trustees. A Participant
may change his beneficiary from time to time by written notice to
the Trustees. The Participant's non-forfeitable accrued benefit is
payable upon the Participant's death, to his surviving spouse (or a
designated beneficiary if his spouse consents in writing which is
notarized or witnessed by a Plan representative).
12.6 In the absence of a valid designation of a beneficiary as provided
in this Section, any benefits payable upon the Participant's death
shall be payable to the estate of the Participant.
12.7 In all situations where the Trustees of the Plan are given
discretionary powers, these powers shall be uniformly and
consistently applied in similar circumstances and any action taken
by the Trustees shall not result in discrimination among
Participants.
12.8 The provisions of the Plan shall be interpreted in accordance with
federal laws and regulation and, except to the extent preempted by
federal law, in accordance with the laws of the State of New York.
SECTION XIII - TOP HEAVY RULES
13.1 Top-Heavy Plan Definitions
a) Key Employee means any employee or former employee (and the
beneficiaries of such Employee) who is described in section
416(i)(l) of the Code or the regulations thereunder.
b) Top-heavy plan means for any Plan Year beginning after December
31, 1983, this Plan is top-heavy if this Plan is a part of a
Required Aggregation Group and the Top-Heavy Ratio for the
Permissive Aggregation Group exceeds 60%.
c) Top-Heavy Ratio:
1) If the Employer maintains one or more defined
contribution plans (including any Simplified Employee
Pension Plan) and the Corporation maintains or has
maintained one or more defined benefit plans which have
covered or could cover a Participant in this Plan, the
Top-Heavy Ratio is a fraction, the numerator of which is
the sum of account balances under the defined
contribution plans for all Key Employees and the present
value of accrued benefits under the defined benefit
plans for all Key Employees, and the denominator of
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which is the sum of the account balances under the
defined contribution plans for all Participants and the
present value of accrued benefits under the defined
benefit plans for all Participants. Both the numerator
and denominator of the Top-Heavy Ratio are adjusted for
any distribution of an account balance or an accrued
benefit made in the five-year period ending on the
Determination Date and any contribution due but unpaid
as of the Determination Date.
2) For purposes of (1) above, the value of account balances
and the present value of accrued benefits will be
determined as of the most recent Valuation Date that
falls within or ends with the 12-month period ending on
the Determination Date. The account balances and accrued
benefits of a Participant who is not a Key Employee but
who was a Key Employee in a prior year will be
disregarded. The calculation of the Top-Heavy Ratio and
the extent to which distributions, rollovers, and
transfers are taken into account will be made in
accordance with section 416 of the Code and the
regulations thereunder. Deductible employee
contributions will not be taken in account for purposes
of computing the Top Heavy Ratio. When aggregating plans
the value of account balances and accrued benefits will
be calculated with reference to the Determination Dates
that fall within the same calendar year. Effective for
Plan years beginning after December 31, 1984, the value
of the account balance of any individual who has not
received any Compensation during the five-year period
ending on the Determination Date will not be taken into
account for purposes of computing the Top-Heavy Ratio.
d) Permissive Aggregation Group means the required aggregation
group of plans plus any other plan or plans of the Employer
which, when considered as a group with the Required Aggregation
Group, would continue to satisfy the requirements of sections
401(a)(4) and 410 of the Code.
e) Required Aggregation Group: (1) each qualified plan of the
Employer in which at least one Key Employee participates, and
(2) any other qualified plan of the Employer which enables a
plan described in (1) to meet the requirements of sections
401(a)(4) and 410 of the Code.
f) Determination Date means, for any Plan Year subsequent to the
first Plan Year, the last day of the preceding Plan Year. For
the first Plan Year of the Plan, the last day of that year.
-16-
<PAGE>
g) Valuation Date means the date elected by the Employer as of
which account balances or accrued benefits are valued for
purposes of calculating the Top-Heavy Ratio. Unless another
date is elected, the Valuation Date shall be the first day of
the Plan Year.
13.2 Minimum Allocation Rules
a) Except as otherwise provided in (c) and (d) below, the Employer
contributions and forfeitures allocated on behalf of any
participant who is not a Key Employee shall not be less than
the lesser of 3% of such Participant's Compensation or in the
case where the Employer has no defined benefit plan which
designates this Plan to satisfy section 401 of the Code, the
largest percentage of Employer contributions and forfeitures,
as a percentage of the first $200,000 of the Key Employee's
Compensation, allocated on behalf of any Key Employee for that
year. The minimum allocation is determined without regard to
any Social Security contribution; however, effective for Plan
Years beginning after December 1, 1984, and before January 1,
1989, amounts contributed pursuant to a salary reduction
arrangement shall be taken into account for purposes of such
salary reduction arrangement shall be taken into account for
purposes of such minimum allocation. This minimum allocation
shall be made even though, under other plan provisions, the
Participant would not otherwise be entitled to receive an
allocation, or would have received a lesser allocation for the
year because of (i) the Participant's failure to complete 1,000
hours of service (or any equivalent provided in the Plan), or
(ii) the Participant's failure to make mandatory employee
contributions to the Plan, or (iii) the Participant's having
Compensation less than a stated amount.
b) For purposes of computing the minimum allocation, Compensation
will mean Earnings as defined in this Plan.
c) The provision in (a) above shall not apply to any Participant
who was not employed by the Employer on the last day of the
Plan Year.
d) The provision in (a) above shall not apply to any Participant
to the extent the Participant is covered under any other plan
or plans of the Employer and the minimum allocation or benefit
requirement applicable to top-heavy plans will be met in the
other plan or plans.
13.3 Nonforfeitability
The minimum allocation required (to the extent required to be
nonforfeitable under section 416(B) of the Code) may not be
forfeited under sections 411(a)(3)(B) or (D) of the Code.
-17-
<PAGE>
SECTION XIV - DISTRIBUTIONS AFTER DECEMBER 31, 1992
14.1 This Section applies to distributions made on or after January 1,
1993. Notwithstanding any provision of the plan to the contrary that
would otherwise limit a distributee's election under this section, a
distributee may elect, at the time and in the manner prescribed by
the plan administrator, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan specified
by the distributee in a direct rollover.
14.2 Definitions
a) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of the
balance to the credit of the distributee, except that an
eligible rollover distribution does not include any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified period
of ten years or more; any distribution to the extent such
distribution is required under section 401(a)(9) of the Code;
and the portion of any distribution that is not includible in
gross income (determined without regard to the exclusion for
net unrealized appreciation with respect to employer
securities).
b) Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in section 408(a) of
the Code, an individual retirement annuity described in section
408(b) of the Code, an annuity plan described in section 403(a)
of the Code, or a qualified trust described in section 401(a)
of the Code, that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible retirement
plan is an individual retirement account or individual
retirement annuity.
c) Distributee: A distributee includes an employee or former
employee. In addition, the employee's or former employee's
surviving spouse and the employee's or former employee's spouse
or former spouse who is the alternate payee under a qualified
domestic relations order, as defined in section 414(p) of the
Code, are distributees with regard to the interest of the
spouse or former spouse.
-18-
<PAGE>
d) Direct rollover: A direct rollover is a payment by the plan to
the eligible retirement plan specified by the distributee.
IN WITNESS WHEREOF, the Company has caused these present to be executed
by its duly authorized Officer.
Dated: As of March 2, 1996 By: /s/ Ross K. Colquhoun
---------------------------
Ross K. Colquhoun
Chairman of the Board and
Chief Executive Officer
Attest:
/s/ Paul J. Sternberg
- ----------------------------------
-19-
<PAGE>
EXHIBIT 10.23
PROFIT SHARING RETIREMENT PLAN
FOR SALARIED EMPLOYEES
OF
THE RAYMOND CORPORATION
PLAN B
Dated 01/01/76
Amended 10/01/82
Amended 12/31/82
Amended 08/30/85
Revised 12/16/85
Amended 12/10/92
Revised 07/23/93
Amended 01/01/94
Amended 03/02/96
<PAGE>
CONTENTS
PAGE
I. DEFINITIONS..........................................................1
II. ELIGIBILITY..........................................................3
III. EMPLOYER CONTRIBUTIONS...............................................4
IV. ALLOCATION OF EMPLOYER CONTRIBUTIONS AMONG
PARTICIPANTS.........................................................4
V. MAINTENANCE OF PARTICIPANTS' ACCOUNTS................................6
VI. NON-FORFEITABLE INTEREST.............................................8
VII. RETIREMENT DATE......................................................8
VIII. DISTRIBUTION OF BENEFITS.............................................9
IX. ALIENATION PROHIBITED...............................................10
X. ADMINISTRATIVE COMMITTEE AND ADMINISTRATION.........................10
XI. AMENDMENT AND TERMINATION...........................................12
XII. MISCELLANEOUS.......................................................13
XIII. TOP HEAVY RULES.....................................................14
XIV. DISTRIBUTIONS AFTER DECEMBER 31, 1992 ..............................16
<PAGE>
-17-
SECTION I - DEFINITIONS
The following words and terms as used in this Plan shall have the meaning set
forth below, unless a different meaning is clearly required by the context. The
masculine pronoun, wherever used, shall include the feminine where applicable,
and the singular shall include the plural:
1.1 "Board" or "Board of Directors" means the Board of Directors of the
Employer.
1.2 "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
1.3 "Earnings" means the amount of income paid to a Participant by the
Company which is reportable for federal income tax purposes, including
overtime, bonuses, commissions, premium pay, or any other compensations
or special payouts considered as wages under current tax withholding
regulations, but excluding taxable fringe benefits. Earnings shall
include any amount which is contributed by the Company pursuant to a
salary reduction agreement and which is not included in the gross
income of the Participant under section 125, 402(e)(3), 402(h)(1)(B) or
403(b) of the Code. For Plan Years beginning after December 31, 1988
and before January 1, 1994, the Earnings taken into account for a
Participant for any Plan Year shall not exceed $200,000. For Plan Years
beginning after December 31, 1993, the Earnings taken into account for
a Participant for any Plan Year shall not exceed $150,000. Both the
$200,000 and $150,000 limitations shall be adjusted for increases in
the cost of living in accordance with section 401(a)(17) of the Code.
In determining the Earnings of a Participant for purposes of the
$200,000 and $150,000 limitations, the rules of section 414(q)(6) of
the Code shall apply, except that in applying such rules, the term
"family" shall include only the spouse of the Participant and any
lineal descendants of the Participant who have not attained age 19
before the close of the Plan Year. Thus, if the adjusted $200,000 or
$150,000 limitation is exceeded, then the limitation shall be prorated
among the affected individuals in proportion to each such individual's
Earnings prior to the application of this limitation.
1.4 "Effective Date" means the date which the Board of Directors has
specified in its vote authorizing adoption of this Plan.
1.5 "Employee" means any "Exempt" employee of the Employer, but excluding
any person classified as a "Leased Employee" and any person who is
included in a unit of employees covered by a collective bargaining
agreement.
1.6 "Employer" means The Raymond Corporation, a corporation with its
principal offices in the State of New York, and any designated
corporate subsidiary.
1.7 "Fund" means all cash, securities, and other property held by the
Trustees under the Trust Agreement.
<PAGE>
1.8 "Fund's Net Gains or Losses" means the results of the Fund for the year
under consideration as measured by the Fund's income, expenses, and
unrealized capital appreciation or depreciation.
1.9 "Leased Employee" means any person as so defined in section 414(n) of
the Code.
1.10 "Leave of Absence" means an absence on leave granted in writing by and
at the convenience of the Employer, either prior to, during, or after
the taking thereof; or an absence on Military Service.
Leave of Absence shall not include any layoff.
The rules governing the granting of such Leave of Absence shall be
uniformly and consistently applied to all Employees under similar
circumstances.
1.11 "Military Service" means only service on active duty in the Armed
Forces of the United States during the period of first enlistment, if
voluntary, and during the period of enforced service, if involuntary,
under laws enacted by the Congress of the United States.
1.12 "Participant" means an Employee who has qualified under the Plan, as
provided in Section II, and whose employment with the Employer has not
terminated.
1.13 "Plan" means The Profit Sharing Retirement Plan For Salaried Employees
of The Raymond Corporation as set forth herein, or as from time to time
amended.
1.14 "Plan Year" means the calendar year.
1.15 "Service" means all uninterrupted employment with the Employer
subsequent to the date of incorporation except as set forth in this
paragraph. Service of an Employee is interrupted by his death or
retirement or by absence of the Employee due to his:
a) Voluntarily quitting the service; or
b) Discharge or termination of employment; or
c) Suspension which continues for more than two months; or
d) Temporary disability or illness which continues for more than
one year; or
e) Layoff which continues for more than one year.
Service is not interrupted or reduced by:
a) Absence of the character of, and for periods less than these
stated in the preceding clauses (c), (d) and (e), as the case
may be; or
b) Vacations granted by the Employer; or
c) Leaves of Absence; provided, however, that after any such absence
on Military Service, the Employee shall have reported for work
within the time prescribed by applicable law after final release
or discharge from active duty.
d) "Parental Leave", meaning a period in which the Employee is
absent from work because of the pregnancy of the Employee, the
birth of a child of the Employee, or the placement of a child
with the Employee in connection with the adoption of that child
by the Employee, or for purposes of caring for that child for a
period beginning immediately following such birth or placement.
Such period is not to extend beyond 501 hours of the Employee's
regularly scheduled work hours, had the Parental Leave not been
exercised.
1.16 "Trust Agreement" means the Agreement by and between the Employer and
the Trustees dated September 19, 1986 and which is hereby made a part
of the Plan.
1.17 "Trustees" means such individuals as shall have entered into the
Trust Agreement with the Employer.
1.18 "Valuation Date" means the date on which the Fund assets shall be
evaluated.
SECTION II - ELIGIBILITY FOR PARTICIPATION
2.1 Any Employee who on December 31, 1991 had not retired from employment
with the Employer and who was a Participant in the Plan as in effect on
December 31, 1991 shall be continued as a Participant under this Plan.
Effective January 1, 1994, the following Employees shall not be
eligible to participate in the Plan: (i) Temporary Employees, i.e.,
those hired on a temporary basis for a term not to exceed twenty-four
(24) months; (ii) Co-op students; (iii) Apprentices, i.e., high school
students who work no more than ten hours per week during the school
year; and (iv) Leased Employees.
2.2 Any Employee not covered by Section 2.1 shall become a Participant on
his date of hire.
2.3 Notwithstanding the foregoing, no Employee shall become eligible to
participate while on a Leave of Absence.
2.4 Any Participant, who terminates employment and who is subsequently
rehired, shall again become a Participant as of the date of his
re-hire.
2.5 Any individual who transfers into covered employment such that he
becomes an Employee, shall become a Participant on the date of
transfer.
<PAGE>
2.6 A Participant who transfers out of covered employment such that he is
no longer an Employee shall cease his participation on the date of
transfer.
SECTION III - EMPLOYER CONTRIBUTIONS
3.1 The amount of the Employer contribution each year shall be voted by the
Board of Directors on or before the last day of each fiscal year;
provided, however, such contribution shall not be more than 15% of the
total compensation (including bonuses and the like, but excluding
contributions under this Plan) paid or accrued during the year to all
eligible Employees participating in the Plan, plus the maximum amount
deductible under the carry-over provisions of the Internal Revenue Code
relating to contributions in previous years of less than the maximum
amount permissible. Such amount shall be contributed out of net
profits, as such net profits are determined in the accordance with
acceptable accounting practices and before any provisions for federal
and state income taxes, if any, and any contributions under this Plan.
3.2 Each Employer contribution shall be allocated among Participants, as
provided in Section IV, and shall be paid to the Trustees to be held,
managed, and disposed of by them in accordance with the terms of the
Trust Agreement.
3.3 Payment of the Employer's contribution to the Trustees shall be made
within the time limit established by the Internal Revenue Service.
SECTION IV - ALLOCATION OF EMPLOYER CONTRIBUTIONS AMONG PARTICIPANTS
4.1 The Employer shall certify to the Trustees, as of the last day of the
Employer's fiscal year, (which is the same as the Plan Year), the name
and Earnings of each Participant; and at the time the name of a
Participant is first certified, the Employer shall also certify his
sex, date of birth, and the date that he became a Participant.
4.2 Each Participant who is on the payroll of the Employer as of December
1 of a Plan Year is eligible to share in the allocation of the
Employer contributions in Section 4.3.
4.3 Each Employer contribution made as of the last day of the Employer's
fiscal year shall be allocated among Employees who are then
Participants. Such allocation shall be made on the basis of each
Participant's total Earnings, as defined in the Plan, in accordance
with the following formula.
<PAGE>
Each shall be allocated that portion of the Employer contribution
which bears the same relationship to the total Employer
contribution as his Earnings bears to the total Earnings of all
Participants.
A Participant who is on a Leave of Absence or Layoff shall be
entitled to an allocation on the basis of his Earnings as
provided in the above formula. A former Participant who
transferred out of the Plan shall be entitled to an allocation in
the year of transfer on the basis of his Earnings while a
Participant. A Participant who retires under Section VII during
the last calendar quarter of a Plan Year shall be entitled to an
allocation on the basis of his Earnings.
4.4 Limitations on Annual Additions
a) Limitations
If a Participant under this Plan is not also a Participant in any
defined benefit plan to which the Employer contributes, then the
total Annual Additions to such Participant's account in any Plan
Year beginning after December 31, 1975, for all defined
contribution plans maintained by the Employer, in the aggregate,
shall not exceed the lesser of: (a) 25% of the Participant's
Compensation in such Plan Year, or (b) $30,000 (or such higher
amount to which said $30,000 may be adjusted, pursuant to Code
section 415(c).
For this purpose "Annual Additions" means the Participant's share
of the Employer contributions.
For purposes of this Section, "Compensation" means the
Participant's wages, salaries, fees and other amounts paid for
personal services actually rendered in the course of employment,
including (by way of example and not limitation), commission,
tips, bonus, overtime pay and earnings as a percentage of
profits, but excluding: (1) contributions to other qualified
plans, deferred compensation plans and simplified employee
pensions; (2) distributions from deferred compensation plans and
qualified plans; (3) amounts realized from the exercise of a
non-qualified stock option or sale or disposition of stock under
a qualified stock option or when restricted stock (or property)
held by an Employee either becomes freely transferrable or is no
longer subject to a substantial risk of forfeiture; and (4) other
amounts which receive special tax benefits such as premiums for
group-term life insurance (only if not included in gross income
of the Participant) and contributions toward the purchase of an
annuity contract (whether or not contributions are includible in
gross income of the Participant.)
<PAGE>
b) Other Plans
If a Participant under this Plan is also a Participant under any
defined benefit plan to which the Employer contributes, then for
any Plan Year, the sum of such Participant's defined benefit plan
fraction in such Plan Year and such Participant's defined
contribution plan fraction in the same Plan Year shall not exceed
1.0. If the sum of the said fractions is in excess of 1.0, then
the Participant's benefits under the defined benefit plan shall
be reduced by an amount sufficient to eliminate the excess.
For the purposes of this Section "defined contribution plan"
means any plan which provides for an individual account for each
Participant and for benefits based solely on the amount
contributed to the Participant's account, and any income,
expenses, gains and losses thereto and any forfeitures of
accounts of other Participants which may be allocated to such
Participant's account. A "defined benefit plan" means any Plan
which is not a defined contribution plan. The "defined benefit
plan fraction" and the "defined contribution plan fraction" for
any Plan Year shall be calculated as follows:
1) The numerator of the first fraction is the projected
annual benefit of the participant under this Plan, and the
denominator is the lesser of (i) the product of 1.25,
multiplied by the dollar limitation in effect under Code
section 415(b) for the limitation year, or (ii) the product
of 1.4, multiplied by 100% of the Participant's average
compensation during the three consecutive years of his
service as an Employee for which he had the greatest
aggregate compensation from the Employer.
2) The numerator of the second fraction is the sum of the
Annual Additions to such Participant's account under the
defined contribution plan maintained by the Employer in such
limitation year and for all prior limitation years, and the
denominator is the sum of the lesser of the following
amounts determined under the defined contribution plan
maintained by the Employer which could have been made under
that plan for such limitation year and for all prior Plan
Years if such plan has been in effect for each such
limitation year: (i) the product of 1.25, multiplied by
$30,000 (or such greater amount as may be applicable under
section 415(c) of the Code), or (ii) the product of 1.4,
multiplied by 25% of the Participant's Compensation for the
limitation year.
SECTION V - MAINTENANCE OF PARTICIPANTS' ACCOUNTS
5.1 The Trustees shall create and maintain an Account for each
Participant, which account shall be evaluated on each Valuation Date.
Normally, the Valuation Date shall be the last day of each calendar
quarter; however, the Trustees may, upon the occasion of a death,
retirement, or other termination of employment subsequent to an
extreme fluctuation in the value of the Fund due to market
conditions, cause the accounts to be evaluated, provided such
evaluation does not result in any discrimination among Employees.
<PAGE>
A Participant's Account shall be credited with that portion of the
Employer contribution allocated to the Participant and a proportionate
share of the Fund's Net Gains or Losses.
5.2 The Trust Fund will be divided into three Investment Funds:
a) A Bond Fund, invested principally in corporate, municipal, or
United Stated Government Bonds, debentures, notes, certificates
or other similar evidences of indebtedness;
b) A Common Stock Fund, invested principally in stocks of
corporations, including the Employer's common stock; and
c) A Money Market Fund, invested principally in U.S. Treasury
Bills, Commercial Paper Bank Certificate of Deposits, Banker
Acceptance, or other similar short term indebtedness.
The Trustee's investment powers with respect to each Investment Fund
are more fully set forth in the Trust Agreement. Each Participant in
the Plan as of January 1, 1992 shall have set up in his Account the
amount of money, securities, etc., which were held in the accounts
under the Plan as of December 31, 1991. Thereafter, in accordance with
the following provisions the Participant can change his investment
elections as follows:
a) A Participant may change his investment election no more than
once every Plan calendar quarter by giving at least 30 days
prior written notice to the Administrative Committee, who in
turn shall advise the Trustee of such election.
b) The changed investment election shall become effective as of the
first day of the Plan calendar quarter beginning after the
expiration of the notice period.
c) A Participant may transfer all or any fraction of the value of
his account in any one of the designated investment accounts, in
multiples of 25%. If a Participant has all his investments in any
one fund, he may transfer up to 50% of the value to another
Investment Fund.
<PAGE>
d) The requested transfer will be effected by the Trustee as of the
first day of the next calendar quarter subsequent to the receipt
of the request, provided that such request is received 30 days
prior to such first day of the subsequent calendar quarter.
Each Participant shall have an interest in the Investment Fund in which
he has elected to have any part of his allotment held and invested. His
interest at any time shall be equal to the sum of his allotments of the
Company contribution that have been credited to his account in the
Fund, adjusted from time to time to reflect his proportionate share of
the income and losses realized by such Fund and of the net appreciation
or depreciation in the value of such Fund. The Trustee shall maintain
accounts to reflect the interest of each Participant in each Investment
Fund at any one time. On each Valuation Date, the Trustee shall
ascertain the value of the interests of Participants therein. The
determinations of the Trustee shall be conclusive and the Trustee shall
not incur any liability for any determination required by the Plan and
made in good faith.
5.3 The proportionate share of the Fund's Net Gains or Losses to be
credited on each Valuation Date, as provided in Section 5.1, shall be
computed by multiplying the following amounts with respect to each
Participant's account:
a) Participant's Account - The amount credited on the preceding
Valuation Date, including any Employer contribution credited on
such date;
by the ratio that
b) The market value, as determined by the Trustees, of the assets
of the Fund on the current Valuation Date, exclusive of the
value of any Employer contribution made on such Valuation Date,
less the aggregate amount credited to the Participants'
Accounts, as such accounts defined in (a) of this Section bears
to,
c) The aggregate amount credited to the Participants' Accounts, as
such accounts are defined in (a) of this Section.
SECTION VI - NON-FORFEITABLE INTEREST
6.1 Upon death, retirement in accordance with the provisions of Section
VII, termination of employment, or discontinuance of contributions
under the Plan by the Employer, the full amount credited to the
Participant in his Participation Account shall become fully vested and
non-forfeitable.
<PAGE>
SECTION VII - RETIREMENT DATE
7.1 Normal Retirement - The normal retirement date of each Participant
shall be the first day of the month coinciding with or next following
the Participant's 65th birthday.
7.2 Total and Permanent Disability Retirement - A Participant who is
totally and permanently disabled may retire on the first day of any
month subsequent to the expiration of six months from the date of
disability. Such disability shall be established by the certification
to the Employer that the Participant by reason of mental or physical
disability is incapable of securing gainful employment. Such
certification shall be by (1) a physician selected by the Participant
and approved by the Employer or (2) by three physicians, one selected
by the Participant, one by the Employer and the third by two physicians
selected by the Participant and the Employer. Expenses incurred in
obtaining this certification shall be absorbed, one-half by the
Participant, and one-half by the Employer.
7.3 Deferred Retirement - A Participant may continue in the service of the
Employer beyond his normal retirement date. During such continued
employment, a Participant shall remain an active Participant until his
actual retirement.
SECTION VIII - DISTRIBUTION OF BENEFITS
8.1 Distribution of the vested interest of a Participant shall commence
when he breaks his Service as defined in Section 1.15.
8.2 Distribution of the vested interest of a Participant shall be in a lump
sum, except as may be required under the provisions of Section 9.1 or
Section XIV.
8.3 a) A Participant's distribution shall begin not later than the
60th day following the end of the Plan Year in which occurs
the latest of
(i) the Participant's 65 birthday,
(ii) the tenth anniversary of the date on which he became a
Participant, or (iii)the date he terminates service with the
Employer.
b) In no event shall the provision of paragraph (a) above
operate so as to allow the Participant's distribution to begin
later than:
(i) the April 1 following the calendar year in which the
Participant's attains age 70 1/2, or
<PAGE>
(ii) in the case of a Participant who does not own either (A)
more than five percent of the outstanding stock of the
Employer, or (B) stock possessing more than five percent
of the total combined voting power of all stock of the
Employer, the April 1 following the calendar year in which
he retires as provided in Section VII.
8.4 Distribution of vested interest upon the death of the Participant while
still in the service of the Employer, or before the lump sum value of
his vested interests has been paid to him upon retirement, shall be
distributed as a lump sum payment to his surviving spouse, if
applicable. If there is no spouse the distribution may be made to
beneficiary if the Participant has filed with the Administrative
Committee a form designating a beneficiary. If no beneficiary has been
designated, the distribution shall be made to his estate.
8.5 Anything to the contrary notwithstanding, any distribution from the
Plan shall be made in accordance with section 401(a)(9) of the Code and
the regulations thereunder.
SECTION IX - ALIENATION PROHIBITED
9.1 To the extent permitted by law, none of the benefits or payments or
proceeds of any contract arising out of or by virtue of this Plan shall
be subject to any claim or any legal process by a creditor of a
Participant or of any beneficiary, and neither the Participant nor any
beneficiary shall have the right to anticipate, alienate, encumber or
assign any of the benefits, payments, proceeds, or avails arising out
of the Plan, other than pursuant to a "Qualified Domestic Relations
Order" pursuant to section 414(p) of the Code.
SECTION X - ADMINISTRATIVE COMMITTEE AND ADMINISTRATION
10.1 The general administration of the Plan and the responsibility for
carrying out the provisions of the Plan shall be placed in an
Administrative Committee of not less than three persons appointed from
time to time by the Board of Directors. Any member of the
Administrative Committee may resign by delivering his written
resignation to the Board of Directors and the Secretary of the
Administrative Committee.
10.2 The members of the Administrative Committee shall elect a Chairman from
their number and a Secretary who may be but need not to be one of the
members of the Administrative Committee; may appoint from their number
such committees with such powers as they shall determine; may authorize
one or more of their number or any agent to execute or deliver any
instrument or make any payment on their behalf; may retain counsel,
employ agents to provide such clerical, accounting, actuarial and
consulting services as they may require in carrying out the provisions
of the Plan; may allocate among themselves or delegate to other persons
all or such portion of their duties hereunder, other than those granted
to the Trustee under the Trust instrument adopted for use in
implementing the Plan, as they, in their sole discretion shall decide.
10.3 The Administrative Committee shall hold meetings upon such notice, at
such place or places, and at such time or times as it may from time
to time determine.
10.4 The Administrative Committee shall determine any question arising in
connection with the interpretation, application or administration of
the Plan (including any question of fact relating to age, service,
compensation and eligibility of Employees), and its decisions or
actions in respect thereof shall be conclusive and binding on all
persons and parties. All resolutions or actions taken by the
Administrative Committee shall be by affirmative vote or action of
not less than two members of the Administrative Committee.
10.5 Any act which the Plan authorizes or requires the Administrative
Committee to do may be done by a majority of its members. The action of
such majority expressed from time to time by a vote at a meeting or in
writing without a meeting shall constitute the action of the
Administrative Committee and shall have the same effect for all
purposes as if assented to by all members of the Administrative
Committee at the time of office.
10.6 No member of the Administrative Committee shall receive any
compensation from the Plan for his services as such.
10.7 The Employer shall furnish the Administrative Committee with such
information as may be reasonably necessary to enable the Administrative
Committee to perform its duties hereunder, and such information, to the
extent taken from the records of the Employer shall be controlling upon
the Administrative Committee and all other persons and parties in
interest unless the Employer shall otherwise agree.
10.8 The Employer shall indemnify and save harmless any Administrative
Committee member of the Board against all claims, loss, damages,
liability, costs and expenses arising out of any act done or omitted
(whether by him, the Administrative Committee or any other
Administrative Committee member), unless due to his gross negligence or
willful misconduct.
10.9 Any person who thinks that he is entitled to a benefit under the Plan
shall have the right to file with the Administrative Committee a
written notice of claim for such benefit.
Within 60 days after its receipt of such written notice of claim, the
Administrative Committee shall either grant or deny such Claim
provided, however, that any delay on the part of the Administrative
Committee in arriving at a decision shall not adversely affect
benefits payable under a granted claim. A decrease in the value of a
Participant's Account due to market value depreciation during the
processing of a claim shall not be deemed to be an adverse effect
attributable to Administrative Committee delay. The Administrative
Committee shall provide to each claimant:
<PAGE>
a) The specific reasons for such denial;
b) Specific reference to the pertinent Plan provisions of which
the denial is based;
c) A description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary;
d) An explanation of the Plan's claim review procedure.
10.10 The members of the Administrative Committee shall use that degree of
care, skill, prudence and diligence that a prudent man acting in a like
capacity and familiar with such matters would use in his conduct of a
similar situation.
SECTION XI - AMENDMENT AND TERMINATION
11.1 The provisions of this Plan may be amended at any time and from time
to time by the Employer; provided, however, that no amendment:
a) Shall cause or permit any part of the Fund to revert to or
become the property of the Employer or to be diverted to
purposes other than for the exclusive benefit of Participants
and their beneficiaries hereunder;
b) Shall increase the duties or liabilities of the Trustees
without their written consent.
11.2 The Employer has established the Plan with the bona fide intention and
expectation that it will be able to make its contributions
indefinitely, but the Employer is not and shall not be under any
obligation or liability whatsoever to continue its contributions or
maintain the Plan for any given length of time and may, at its sole and
absolute discretion, discontinue such contributions or terminate the
Plan at any time without any liability whatsoever for such
discontinuance or termination.
11.3 Upon termination of the Plan and Trust by formal written notice, or in
actual operation, after payment of all expenses and proportional
adjustments of accounts to reflect such expenses and Fund losses or
profits, each Participant; each former Participant, and each
beneficiary of a deceased Participant shall be entitled to receive any
amount then credited to his account in the Trust Fund. The Trustees may
make payments of such amounts in cash or in assets of the Trust Fund.
<PAGE>
11.4 The Plan may not be merged or consolidated with nor may its assets or
liabilities be transferred, except as provided in Section 5.2, to any
other Plan unless each Participant, spouse, retired Participant, or
beneficiary under the Plan would, if the resulting Plan were then
terminated, receive a benefit immediately after the merge,
consolidation, or transfer which is equal to or greater than the
benefit he would have been entitled to receive immediately before the
merger, consolidation, or transfer, if the Plan had been terminated.
SECTION XII - MISCELLANEOUS
12.1 The adoption and maintenance of the Plan and Trust shall not be deemed
to be a contract between the Employer and any Employee. Nothing herein
contained shall be deemed to give to any Employee the right to be
retained in the employ of the Employer or to interfere with the right
of the Employer to discharge any Employee at any time; nor shall it be
deemed to give the Employer the right to require any Employee to remain
in its employ; nor shall it interfere with the Employee's right to
terminate his employment at any time.
12.2 All benefits payable under the Plan shall be paid or provided for
solely from the Trust and the Employer assumes no liability or
responsibility therefore.
12.3 If a Participant is reassigned by the Employer so that he becomes
eligible to participate in another defined contribution plan of the
Employer, such reassignment or transfer shall make him a Participant
immediately in the Plan covering his new position.
12.4 Irrespective of anything contained in this instrument as executed or as
hereafter amended, it shall be impossible for any part of the Fund to
revert to the Employer or to be used for or diverted to purposes other
than for the exclusive benefit of Participants, former Participants,
and beneficiaries, either by operation of the Plan and Trust, by power
or revocation or amendment, by collateral agreement, or by any other
means.
12.5 Each Participant shall designate, in writing, a beneficiary to receive
any benefits payable under the Plan upon the Participant's death, such
designation to be filed with the Trustees. A Participant may change his
beneficiary from time to time by written notice to the Trustees. The
Participant's non-forfeitable accrued benefit is payable upon the
Participant's death, to his surviving spouse (or a designated
beneficiary if his spouse consents in writing which is notarized or
witnessed by a Plan representative).
<PAGE>
12.6 In the absence of a valid designation of a beneficiary as provided in
this Section, any benefits payable upon the Participant's death shall
be payable to the estate of the Participant.
12.7 In all situations where the Trustees of the Plan are given
discretionary powers, these powers shall be uniformly and consistently
applied in similar circumstances and any action taken by the Trustees
shall not result in discrimination among Participants.
12.8 The provisions of the Plan shall be interpreted in accordance with
federal laws and regulation and, except to the extent preempted by
federal law, in accordance with the laws of the State of New York.
SECTION XIII - TOP HEAVY RULES
13.1 Top-Heavy Plan Definitions
a) Key Employee means any employee or former employee (and the
beneficiaries of such Employee) who is described in section
416(i)(l) of the Code or the regulations thereunder.
b) Top-heavy plan means for any Plan Year beginning after December
31, 1983, this Plan is top-heavy if this Plan is a part of a
Required Aggregation Group and the Top-Heavy Ratio for the
Permissive Aggregation Group exceeds 60%.
c) Top-Heavy Ratio:
1) If the Employer maintains one or more defined contribution
plans (including any Simplified Employee Pension Plan) and
the Corporation maintains or has maintained one or more
defined benefit plans which have covered or could cover a
Participant in this Plan, the Top-Heavy Ratio is a fraction,
the numerator of which is the sum of account balances under
the defined contribution plans for all Key Employees and the
present value of accrued benefits under the defined benefit
plans for all Key Employees, and the denominator of which is
the sum of the account balances under the defined
contribution plans for all Participants and the present
value of accrued benefits under the defined benefit plans
for all Participants. Both the numerator and denominator of
the Top-Heavy Ratio are adjusted for any distribution of an
account balance or an accrued benefit made in the five-year
period ending on the Determination Date and any contribution
due but unpaid as of the Determination Date.
<PAGE>
2) For purposes of (1) above, the value of account balances and
the present value of accrued benefits will be determined as
of the most recent Valuation Date that falls within or ends
with the 12-month period ending on the Determination Date.
The account balances and accrued benefits of a Participant
who is not a Key Employee but who was a Key Employee in a
prior year will be disregarded. The calculation of the
Top-Heavy Ratio and the extent to which distributions,
rollovers, and transfers are taken into account will be made
in accordance with section 416 of the Code and the
regulations thereunder. Deductible employee contributions
will not be taken in account for purposes of computing the
Top Heavy Ratio. When aggregating plans the value of account
balances and accrued benefits will be calculated with
reference to the Determination Dates that fall within the
same calendar year. Effective for Plan years beginning after
December 31, 1984, the value of the account balance of any
individual who has not received any Compensation during the
five-year period ending on the Determination Date will not
be taken into account for purposes of computing the
Top-Heavy Ratio.
d) Permissive Aggregation Group means the required aggregation group
of plans plus any other plan or plans of the Employer which, when
considered as a group with the Required Aggregation Group, would
continue to satisfy the requirements of sections 401(a)(4) and
410 of the Code.
e) Required Aggregation Group: (1) each qualified plan of the
Employer in which at least one Key Employee participates, and
(2) any other qualified plan of the Employer which enables a
plan described in (1) to meet the requirements of sections
401(a)(4) and 410 of the Code.
f) Determination Date means, for any Plan Year subsequent to the
first Plan Year, the last day of the preceding Plan Year. For the
first Plan Year of the Plan, the last day of that year.
g) Valuation Date means the date elected by the Employer as of which
account balances or accrued benefits are valued for purposes of
calculating the Top-Heavy Ratio. Unless another date is elected,
the Valuation Date shall be the first day of the Plan Year.
13.2 Minimum Allocation Rules
a) Except as otherwise provided in (c) and (d) below, the Employer
contributions and forfeitures allocated on behalf of any
participant who is not a Key Employee shall not be less than
the lesser of 3% of such Participant's Compensation or in the
case where the Employer has no defined benefit plan which
designates this Plan to satisfy section 401 of the Code, the
largest percentage of Employer contributions and forfeitures,
as a percentage of the first $200,000 of the Key Employee's
Compensation, allocated on behalf of any Key Employee for that
year. The minimum allocation is determined without regard to
any Social Security contribution; however, effective for Plan
Years beginning after December 1, 1984, and before January 1,
1989, amounts contributed pursuant to a salary reduction
arrangement shall be taken into account for purposes of such
salary reduction arrangement shall be taken into account for
purposes of such minimum allocation. This minimum allocation
shall be made even though, under other plan provisions, the
Participant would not otherwise be entitled to receive an
allocation, or would have received a lesser allocation for the
year because of (i) the Participant's failure to complete 1,000
hours of service (or any equivalent provided in the Plan), or
(ii) the Participant's failure to make mandatory employee
contributions to the Plan, or (iii) the Participant's having
Compensation less than a stated amount.
b) For purposes of computing the minimum allocation, Compensation
will mean Earnings as defined in this Plan.
c) The provision in (a) above shall not apply to any Participant
who was not employed by the Employer on the last day of the
Plan Year.
d) The provision in (a) above shall not apply to any Participant
to the extent the Participant is covered under any other plan
or plans of the Employer and the minimum allocation or benefit
requirement applicable to top-heavy plans will be met in the
other plan or plans.
13.3 Nonforfeitability
The minimum allocation required (to the extent required to be
nonforfeitable under section 416(B) of the Code) may not be forfeited
under sections 411(a)(3)(B) or (D) of the Code.
SECTION XIV - DISTRIBUTIONS AFTER DECEMBER 31, 1992
14.1 This Section applies to distributions made on or after January 1, 1993.
Notwithstanding any provision of the plan to the contrary that would
otherwise limit a distributee's election under this section, a
distributee may elect, at the time and in the manner prescribed by the
plan administrator, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan specified by
the distributee in a direct rollover.
<PAGE>
14.2 Definitions
a) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of the
balance to the credit of the distributee, except that an
eligible rollover distribution does not include any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified period
of ten years or more; any distribution to the extent such
distribution is required under section 401(a)(9) of the Code;
and the portion of any distribution that is not includible in
gross income (determined without regard to the exclusion for
net unrealized appreciation with respect to employer
securities).
b) Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in section 408(a) of
the Code, an individual retirement annuity described in section
408(b) of the Code, an annuity plan described in section 403(a)
of the Code, or a qualified trust described in section 401(a)
of the Code, that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible retirement
plan is an individual retirement account or individual
retirement annuity.
c) Distributee: A distributee includes an employee or former
employee. In addition, the employee's or former employee's
surviving spouse and the employee's or former employee's spouse
or former spouse who is the alternate payee under a qualified
domestic relations order, as defined in section 414(p) of the
Code, are distributees with regard to the interest of the
spouse or former spouse.
d) Direct rollover: A direct rollover is a payment by the plan to
the eligible retirement plan specified by the distributee.
IN WITNESS WHEREOF, the Company has caused these present to be executed
by its duly authorized Officer.
Dated: As of March 2, 1996 By: /s/ Ross K. Colquhoun
----------------------
Ross K. Colquhoun
Chairman of the Board and
Chief Executive Officer
Attest:
/s/ Paul J. Sternberg
<PAGE>
EXHIBIT 10.24
THE RAYMOND CORPORATION
PENSION PLAN
As Amended 01-01-74
01-01-76
01-01-79
01-01-82
12-31-83
01-01-85
08-30-85 (Eff.01-01-85)
(Rev.12-16-85)
12-15-88 (Eff. 01-01-89)
06-15-89 (Eff. 01-01-90)
07-15-90 (Eff. 01-01-90)
07-28-93 (Eff. 01-01-89)
04-30-94 (Eff. 01-01-94)
08-03-94 (Eff. 01-01-94)
03-04-95 (Eff. 01-01-94)
08-02-95 (Eff. 01-01-95)
03-02-96 (Eff. 01-01-96)
<PAGE>
CONTENTS
PAGE
----
I. DEFINITIONS......................................... 1
II. ELIGIBILITY......................................... 4
III. VESTING SERVICE AND BENEFIT SERVICE................. 5
IV. RETIREMENT DATES.................................... 7
V. RETIREMENT BENEFITS................................. 9
VI. PAYMENT OF RETIREMENT BENEFITS...................... 12
VII. FINANCING AND CONTRIBUTIONS......................... 16
VIII. TERMINATION OF SERVICE.............................. 17
IX. DEATH BENEFITS...................................... 18
X. ADMINISTRATIVE COMMITTEE AND ADMINISTRATION......... 20
XI. NON-ALIENATION OF BENEFITS.......................... 21
XII. PAYMENTS OF BENEFITS TO PERSON OTHER THAN DESIGNATED
BENEFICIARY......................................... 21
XIII. RIGHTS AND OBLIGATIONS OF THE CORPORATION........... 22
XIV. MAXIMUM RETIREMENT BENEFITS......................... 24
XV. MISCELLANEOUS....................................... 29
XVI. DISTRIBUTIONS AFTER DECEMBER 31, 1992............... 30
<PAGE>
SECTION I - DEFINITIONS
The following words and terms as used in this Plan shall have the meaning set
forth below, unless a different meaning is clearly required by the context. The
masculine pronoun, wherever used, shall include the feminine where applicable,
and the singular shall include the plural:
1.1 "Administrative Committee" means the Administrative Committee provided
for in Section X hereof.
1.2 "Affiliated Employer Corporation" means a corporation which is a member
of a controlled group of corporations, including the Corporation
(determined under section 1563(a) of the Code without regard to section
1563(a)(4) and (e)(3)(C)), except that with respect to section 14.1
"more than 50 percent" shall be substituted for "at least 80 percent"
where it appears in section 1563(a)(1) of the Code; any trade or
business under common control (as defined in section 414(c) of the
Code) with the Corporation; or a member of an affiliated service group
(as defined in section 414(m) of the Code) which includes the
Corporation.
1.3 "Anniversary Date of the Plan" means January 1, 1989 and each
subsequent January 1st.
1.4 "Annual Earnings" means the amount of income paid to a Participant by
the Company which is reportable for federal income tax purposes,
including overtime, bonuses, commissions, premium pay, or any other
compensations or special payouts considered as wages under current tax
withholding regulations, and deferred amounts under the Corporation's
Deferred Compensation Plan, but excluding taxable fringe benefits.
Annual Earnings shall include any amount which is contributed by the
Company pursuant to a salary reduction agreement and which is not
included in the gross income of the Participant under sections 125,
402(e)(3), 402(h)(1)(B) or 403(b) of the Code. For Plan Years beginning
after December 31, 1988 and before January 1, 1994, the Annual Earnings
taken into account for a Participant for any Plan Year shall not exceed
$200,000. For Plan Years beginning after December 31, 1993, the Annual
Earnings taken into account for a Participant for any Plan Year shall
not exceed $150,000. Both the $200,000 and $150,000 limitations shall
be adjusted for increases in the cost of living in accordance with
section 401(a)(17) of the Code. In determining the Annual Earnings of a
Participant for purposes of the $200,000 and $150,000 limitations, the
rules of section 414(q)(6) of the Code shall apply, except that in
applying such rules, the term "family" shall include only the spouse of
the Participant and any lineal descendants of the Participant who have
not attained age 19 before the close of the Plan Year. Thus, if the
adjusted $200,000 or $150,000 limitation is exceeded, then the
limitation shall be prorated among the affected individuals in
proportion to each such individual's Annual Earnings prior to the
application of this limitation. The benefits of a Participant who had
Annual Earnings in excess of $200,000 in a Plan Year beginning before
1989 and/or in excess of $150,000 in a Plan Year beginning before 1994
-1-
<PAGE>
shall be determined under the formula with extended wear-away fresh
start described in section 1.401(a)(4)-13(c)(4)(iii) of the Income Tax
Regulations, with fresh start dates as of December 31, 1988 and/or
December 31, 1993, respectively.
1.5 "Beneficiary" means any person designated by a participant to receive
any death benefits payable in accordance with Section VI or Section IX.
1.6 "Benefit Service" means service recognized for purposes of computing
the amount of any benefit under the Plan and for purposes of
determining eligibility for certain benefits under the Plan, determined
as provided in Section 3.2.
1.7 "Board" means the Board of Directors of the Corporation.
1.8 "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
1.9 "Corporation" or "Company" means The Raymond Corporation, a corporation
organized and existing under the laws of the State of New York, or any
U.S. subsidiary corporation in which The Raymond Corporation holds 51%
or more of the common or voting stock, or any designated corporate
subsidiary, and which subsidiary has been approved by the Board to come
under this Pension Plan.
1.10 "Employee" means any person employed by the Corporation who receives
stated compensation other than a pension, severance pay, retainer or
fee under contract, but excluding any Leased Employee and any person
who is included in a unit of Employees covered by a collective
bargaining agreement."
1.11 "Equivalent Actuarial Value" means equivalent value determined on the
basis of the applicable factors set forth in Tables I through V in
Appendix A of the Plan. For purposes of determining the present value
of a lump sum payment under Section 6.5, (i) the applicable interest
rate to be used shall be the annual rate of interest on 30-year
Treasury securities for the month before the date of distribution, and
(ii) the applicable mortality table shall be GAM-83.
1.12 "Final Average Earnings" means the annual average of the Participant's
Annual Earnings during the three (3) consecutive years out of the last
ten (10) years immediately prior to the earliest of his actual
retirement, or termination of his service with the Corporation
whichever is applicable, when such Annual Earnings are the highest, or
during years of employment with the Company if for less than three (3)
years of employment.
-2-
<PAGE>
1.13 "Former Plan" means the Raymond Pension Trust in effect as of September
30, 1961.
1.14 "Fund " means the fund established by the contributions of the
Corporation on account of this Plan.
1.15 "Hours of Service" means, and an Employee shall be credited with:
a) Each hour for which an Employee is paid or entitled to payment for
the performance of duties for the Corporation,
b) Each hour for which an Employee is paid or entitled to payment by
the Corporation on account of a period during which no duties are
performed, whether or not the employment relationship has
terminated, due to vacation, holiday, illness, incapacity
(including disability), lay off, jury duty, military duty or leave
of absence,
c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Corporation,
excluding any hour credited under (a) or (b), which shall be
credited to the computation period or periods to which the award,
agreement or payment pertains, rather than to the computation
period in which the award, agreement or payment is made, and
d) solely for purposes of determining whether an Employee has incurred
a Break in Service under the Plan, each hour for which an Employee
would normally be credited under paragraph (a) or (b) above during
a period of Parental Leave but not more than 501 hours for any
single continuous period. The number of hours shall be credited to
an Employee under this paragraph (d) during the Plan Year in which
the Parental Leave began, only if the Employee would be prevented
from incurring a Break in Service for that year; otherwise, the
hours under this paragraph (d) shall be credited to the succeeding
Plan Year.
No hours shall be credited on account of any period during which the
Employee performs no duties and receives payment solely for the purpose
of complying with unemployment compensation, worker's compensation or
disability insurance laws. The Hours of Service credited shall be
determined as required by Title 29 of the Code of Federal Regulations,
Section 2530. 200b-2(b) and (c).
1.16 "Leased Employee" means any person as so defined in Section 414 (n) of
the Code.
1.17 "Leave of Absence" means an absence on leave granted in writing by and
at the convenience of the Corporation prior to the taking there of; or
an absence on Military Service. Leave of Absence shall not include any
lay-off.
-3-
<PAGE>
The rules governing the granting of such Leave of Absence shall be
uniformly and consistently applied to all Employees under similar
circumstances.
1.18 "Military Service" shall mean only service on active duty in the Armed
Forces of the United States, during the period of first enlistment, if
voluntary, and during the period of enforced service, if involuntary,
under laws enacted by the Congress of the United States.
1.19 "Normal Retirement Age" means the Participant's 65th birthday.
1.20 "Parental Leave " means a period in which the Employee is absent from
work because of the pregnancy of the Employee, the birth of a child of
the Employee or the placement of a child with the Employee in
connection with the adoption of that child by the Employee, or for
purposes of caring for that child for a period beginning immediately
following such birth or placement.
1.21 "Participant" means an Employee who has qualified under the Plan, as
provided in Section III, and whose employment with the Corporation has
not terminated.
1.22 "Plan" means The Raymond Corporation Pension Plan as herein set forth
or as from time to time amended.
1.23 "Plan Year" means the period from January 1, 1989 to December 31, 1989,
and such subsequent period of twelve (12) consecutive months commencing
January 1st.
1.24 "Trust Agreement" means the Agreement by and between the Corporation
and the Trustee dated October 1, 1990 and which is hereby made a part
of the Plan.
1.25 "Trustee" means such banking corporation or trust company as shall have
entered in the Trust Agreement, or successor Trust Agreement, with the
Corporation.
1.26 "Vesting Service" means service recognized for purposes of determining
eligibility for certain benefits under the Plan, determined as provided
in Section 3.1.
1.27 "Year of Service" means any Plan Year during which the Employee has not
less than 1,000 hours of service.
SECTION II - ELIGIBILITY
2.1. Any Employee who was a Participant in the Plan as in effect on December
31, 1988, shall be continued as a Participant under this Plan.
-4-
<PAGE>
2.2 Any Employee not covered by section 2.1 shall become a Participant in
the Plan on the first day of the calendar month coinciding with or next
following the earlier of completion of one (1) year of Vesting Service
and attainment of age 21.
2.3 The Corporation shall certify to the Administrative Committee the name
of each Employee who becomes a Participant of the Plan, his date of
birth, his date of employment, and such information with respect to his
service and Annual Earnings as the Administrative Committee may
require.
2.4 For Plan Years beginning before January 1, 1988, any Employee who first
becomes employed by the Corporation within five (5) years of his normal
retirement date will not be eligible for participation in this Plan.
2.5 For Plan years beginning on or after January 1, 1988, no Employee shall
be excluded from participation on account of his attained age who has
earned an hour of service on or after such date. For the purpose of
determining when such an Employee (who is not otherwise ineligible to
participate) must become eligible to participate, service credited to
the Employee in the Plan year beginning before January 1, 1988 shall be
taken into account. An Employee who would be eligible to participate
taking such service into account and whose entry date would be before
the first day of the first Plan year beginning in 1988 shall
participate in the Plan as of the first day of such Plan year.
SECTION III - VESTING SERVICE AND BENEFIT SERVICE
3.1 Vesting Service
a) Except as hereinafter provided, all service with the Company
rendered by an Employee shall be Vesting Service for the purposes
of the Plan. With respect to any Plan Year in which an Employee
works at least 1,000 Hours of Service there shall be included in
his Vesting Service a full year of Vesting Service. For any Plan
Year in which any Employee works less than 1,000 hours, there will
be included one (1) month of Vesting Service for each 173 Hours of
Service completed.
With respect to meeting the requirement of Section 2.2, completion
of 1,000 Hours of Service during the 12 month period beginning with
his date of employment or the Plan Year, which includes the first
anniversary date of the employment date will satisfy the
requirement. Where additional eligibility computation periods are
necessary succeeding Plan Years will be used.
The Administrative Committee shall establish rules, uniformly
applicable to all Employees similarly situated, for determining the
number of hours worked by an Employee in any year. In the event an
Employee completes 1,000 hours of work during the 12 month period
beginning with his date of employment but fails to complete 1,000
-5-
<PAGE>
hours of work during the calendar year of his employment or during
the calendar year following the date of his employment, he will be
credited with a full year of Vesting Service for that period.
b) There shall be a Break in Service with respect to any Plan Year
after the year in which an Employee first becomes employed and
prior to the year in which he retires, dies or otherwise terminates
his employment with the Company during which he is not credited
with more than 173 hours of service. Any service rendered prior to
a Break in Service shall not be restored unless he shall complete
at least one (1) year of Vesting Service following the Break in
Service. Any Employee, except as to such Employees identified in
the succeeding sentence, who has a break in his service and who is
re-employed shall participate immediately on his re-employment,
whether he was a vested or a non-vested participant at the time his
break in service occurred. If an Employee who has not completed
five (5) years of Vesting Service incurs five (5) consecutive one
(1) year Breaks in Service the service rendered prior to the Break
in Service thereafter be excluded from his Vesting Service.
c) If any Employee shall have been absent from the service of the
Company because of service in the Armed Forces of the United States
and if he shall have returned to the service of the Company within
90 days either (i) after having become entitled to release from
active duty in the Armed Forces or (ii) after hospitalization
continuing after discharge for a period of not more than one (1)
year, such absence shall be considered as Vesting Service.
d) A period during which an Employee is on a layoff of less than two
(2) years or a Leave of Absence shall not be considered as a Break
in Service and, under rules uniformly applicable to all Employees
similarly situated, the Administrative Committee may authorize the
inclusion of such period of leave as Vesting Service.
3.2 Benefit Service
a) Except as hereinafter provided, all service rendered as an Employee
shall be Benefit Service under the Plan, except that service
rendered prior to a Break in Service which is excluded from Vesting
Service in accordance with Section 3.1 will be excluded from
Benefit Service; a year of Benefit Service is any Plan Year in
which the Employee works not less than 2,000 Hours of Service. The
Administrative Committee shall determine, under rules uniformly
applicable to all Employees similarly situated, the fraction of a
year of credited service to be recognized with respect to any Plan
Year of an Employee's service during which he works less than 2,000
hours but not less than 1,000 hours; but in no event shall such
fraction be less than the fraction the numerator of which is the
number of hours worked in such year and the denominator of which is
the normal number of hours worked in a year by a full time
Employee.
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b) Upon direction of the Board of Directors uniformly applicable to
all Employees similarly situated, Benefit Service shall include any
period of service in the Armed Forces of the United States which is
included in member's Vesting Service pursuant to Section 3.1(c).
The Administrative Committee may, under rules uniformly applicable
to all Employees similarly situated, grant Benefit Service for any
period, not in excess of two (2) years, during which an Employee is
on an approved layoff or Leave of Absence which is included in his
Vesting Service pursuant to Section 3.1(d). The Compensation for
either such period of absence for which Benefit Service is granted
shall be at the member's rate of Compensation in effect prior to
the commencement of such period.
3.3 Transfers and Employment with an Affiliated Employer
a) If a Participant becomes employed by the Corporation in any
capacity other than as an Employee, or by an Affiliated Employer
Corporation, or becomes a Leased Employee, he shall retain any
Benefit Service he has under this Plan, and future years of service
with the Corporation or Affiliated Employer Corporation shall count
as Vesting Service under the Plan. Upon his later retirement or
termination of employment with the Corporation or Affiliated
Employer Corporation, any benefits to which the Participant is
entitled shall be determined under the Plan provisions in effect on
the date he ceases to be an Employee, and only on the basis of his
Benefit Service accrued while he was an Employee.
b) Subject to the Break in Service provisions of Section III, if a
person who is originally employed by the Corporation as a Leased
Employee or in any capacity other than as an Employee, or by an
Affiliated Employer Corporation and subsequently becomes an
Employee, his period of service with the Corporation, or Affiliated
Employer Corporation before becoming an Employee shall count as
Vesting Service under the Plan. Upon his later retirement or
termination of employment, the benefits payable under the Plan
shall be computed under the Plan provisions in effect at that time,
and only on the basis of the Benefit Service accrued while he is an
Employee.
Employees of G.N. Johnston Equipment Co.
3.4 If an employee of G.N. Johnston Equipment Co., Ltd. becomes an Employee
of the Company, all what would otherwise constitute Service hereunder
at G.N. Johnston Equipment Co., Ltd. will count as Service and Benefit
Service under this Plan.
Employees of Raymond Accounts Management, Inc.
3.5 Effective January 1, 1996, service with Raymond Accounts Management,
Inc. (formerly Raymond Handling Technologies Company, Inc.) on or after
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June 1, 1990 shall count as service under this Plan for purposes of
determining Vesting Service and Benefit Service.
SECTION IV - RETIREMENT DATES
Normal Retirement Date
4.1 The normal retirement date of each Participant shall be the first day
of the month coinciding with or next following the Participant's 65th
birthday.
Early Retirement Date
4.2 A Participant may, at his option and upon such notice as the
Administrative Committee may reasonably require, retire from active
service prior to his normal retirement date on the first day of any
month following his completion of fifteen (15) years of Benefit Service
and after attaining his 55th birthday.
Disability Retirement Date
4.3 A Participant may retire from active service prior to his normal
retirement date if at the time of retirement such Participant shall
have at least fifteen (15) years of Benefit Service and shall have
become, through some unavoidable cause, totally and permanently
disabled, provided that such Employee is eligible for total and
permanent disability benefits under the Social Security Act. The
Retirement date in the event of such Participant's total and permanent
disability shall be the first day of the month coincident with or next
following the expiration of six (6) months from the date on which he
became disabled.
For purposes of this Plan, a Participant shall be deemed to be totally
and permanently disabled when such disability shall have continued for
a period of six (6) consecutive months. However, notwithstanding the
fact that the Participant is eligible for total and permanent
disability benefits under the Social Security Act, no benefits shall be
payable if (i) such participant is engaged in occupation or employment
for compensation, or profit in which he is able to earn in excess of
$100.00 per month, or (ii) such disability was contracted, suffered, or
incurred while such Participant was engaged in, or resulted from his
having engaged in, a criminal enterprise, or (iii) such disability
resulted from his habitual drunkenness or the use of narcotics, or (iv)
such disability resulted from self inflicted injury or (v) such
disability is directly incurred in or due solely to the Military
Service of the Participant which prevents him from returning to
employment with the Corporation and for which he receives a disability
benefit or pension from the United States.
Payment of such total and permanent disability benefits to a
Participant shall terminate upon his ceasing to be eligible for total
and permanent disability under the Social Security Act prior to his
having attained the age of 65 years.
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Deferred Retirement Date
4.4 The deferred retirement date of an Employee who remains in the active
service of the Corporation after his normal retirement date shall be
the first day of the calendar month next following his actual
retirement.
SECTION V - RETIREMENT BENEFITS
Retirement Benefits at Normal Retirement Date
5.1 Effective for all retirees on or after January 1, 1990, the annual
Normal Retirement Pension Benefit shall be equal to the greater of (a),
or (b) below:
a) Six-tenths of one (1) percent (.6%) of the Participant's Final
Average Earnings multiplied by the number of years of Benefit
service:
or
b) One hundred fifty-six dollars ($156.00) multiplied by the number of
years of the Participant's service.
In no event shall any Participant, who was an active Employee on
January 1, 1989 receive a lesser pension benefit than he would receive
after giving effect to the accrued benefit such Participant had earned
on December 31, 1988, plus the pension benefit earned since such date
in accordance with the above benefit formulae.
Retirement Benefits at Early Retirement Date
5.2 The annual Early Retirement Pension shall be equal to the Participant's
accrued Normal Retirement Pension based on his Annual Earnings and
Benefit Service as of his date of early retirement and shall be payable
at the option of the Participant (a) commencing as of Normal Retirement
Date or (b) commencing as of actual retirement date or as of the first
day of any month after actual retirement date, but reduced by the
appropriate actuarial factor taking into account the age of the
Participant and the earlier commencement of his retirement benefits.
If, however, the Participant has completed 30 years of Benefit Service
and attained age 62 as of actual retirement date, no reduction shall be
applied.
A Participant who separates from service after April 1, 1993 and meets
the eligibility conditions for early retirement in Section 4.2, shall
receive a supplemental pension equal to $150.00 per month. The
supplemental pension shall begin as of the later of (a) January 1, 1996
or (b) the first day of the month coincident with or next following the
Participant's 62nd birthday. The supplemental pension shall end on the
first day of the month in which the Participant attains age 65 or the
Participant dies, whichever occurs first. Notwithstanding the above,
the supplemental pension shall not be payable for any month during
which the Participant is covered under the Company's medical plan
because he is the spouse of an Employee of the Company.
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Retirement Benefit at Disability Retirement Date
5.3 The retirement benefit commencing at disability retirement date for a
Participant who retires on account of total and permanent disability in
accordance with Section 4.3 shall be a retirement benefit commencing on
the date of retirement computed in accordance with Section 5.1. Such
disability retirement benefit shall be payable to him during the
continuance of total and permanent disability until such Participant
attains the age of 65 years. Any such Participant who attains the age
of 65 years shall be deemed to have retired as of that time in
accordance with Section 4.1 and shall thereafter be entitled to receive
retirement benefits in the amount as determined in accordance with
Section 5.1.
A Participant who has been retired with total and permanent disability
and who has recovered from such disability and is re-employed shall be
reinstated as a Participant in the Plan as though there had been no
interruption in his Vesting Service.
The amount of any payments made to such Participant under any Federal,
State or Foreign statute under which the Corporation contributes
through taxes, except contributions under the Social Security Act, or
otherwise, to provide against injury, disease or disability, whether
occupational or non-occupational, shall also be deducted from the
amount of the Participant's disability retirement benefit.
Retirement Benefit at Deferred Retirement Date
5.4 If any Participant remains in service after his normal retirement date,
in accordance with Section 4.4, his retirement benefit shall be
suspended for each month during the period of deferred retirement which
constitutes a month of "suspension service". For purposes of this
Section 5.4, a month of "suspension service" is a month in which the
Participant completes at least 40 Hours of Service with the
Corporation. Such a Participant will receive his deferred retirement
benefit commencing on his actual retirement date or after a month in
which he does not complete at least 40 Hours of Service. The amount of
the deferred retirement benefit will be determined in accordance with
the provisions of Section 5.1 and shall be based on the Annual
Earnings, Benefit Service and the terms of the Plan in effect at the
time payments are to commence. If payments of the benefit are made for
at least 4 consecutive months while the Participant remains in the
service of the Corporation, the "suspension service" rules described in
Section 6.6 shall govern.
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Spouse's Pension
5.5 a) In the case of the death on or after August 23, 1984 of a married
Participant, including a Participant whose employment was
terminated on or after August 23, 1984, after he had met the age
and service requirements for any Pension but before his Pension
begins, a spouse's Pension shall be payable to his surviving spouse
for life beginning on the first day of the month immediately after
the later of the Participant's date of death or the date the
Participant would have reached the earliest retirement age under
Section 4.2 (Early Retirement Date), provided that the spouse shall
have been married to the Participant during the one-year period
preceding his death. The Pension subsequently payable to a
Participant whose spouse would have been entitled to a Pension
under this Section had the Participant's death occurred, and the
Pension payable to his spouse after his death, if applicable, shall
be reduced for each month in the period prior to Normal Retirement
Date during which the provisions of this Section 5.5 are in effect
with respect to the Participant. No such reduction shall be made
with respect to any period before the commencement of the election
period specified in (d) below. The factors for Spouse's Coverage
During Active Employment and the Factors for Spouse's Coverage
After Retirement or Other Termination of Service are set forth in
Appendix A.
b) The Spouse's Pension shall be equal to (i) in the case of a
Participant who dies after he has completed the age and service
requirements for an early or normal retirement Pension, the Pension
which would have been payable to the spouse if the Participant had
retired on an early, normal or late retirement Pension, whichever
is applicable, beginning on the first day of the month in which he
died, as provided in Section 4.1, 4.2, 4.3, and (ii) in the case of
any other Participant, the Pension which would have been payable to
the spouse if the Participant had terminated employment on the date
of his death, if he was then in active service, had elected to have
his Pension begin on the earliest date provided in Section 4.4 and
then had died on the next following day.
c) The Corporation shall furnish to each married Participant within
the three-year period preceding the first day of the Plan Year in
which the Participant would attain age 35 or, if later, the date he
first became a Participant undre Section II, a written explanation
in nontechnical language which describes the terms and conditions
of the spouse's Pension,the Participant's right to make, and the
effect of an election to waive the spouse's Pension, the rights of
the Participant's spouse and the right to make, and the effect of,
a revocation of such election.
d) An election to waive the spouse's Pension provided under this
Section, or any revocation of that election, may be made at any
time during the period which begins on the first day of the Plan
Year in which the Participant attains age 35 and ends on the date
of the Participant's death. However, in the case of a Participant
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who has terminated service, the period during which he may make an
election to waive the spouse's Pension with respect to his Pension
accrued before his termination of service shall not begin later
than the date his service terminates. An election to waive the
spouse's Pension or any revocation of that election shall be made
on the form provided by the Administrative Committee and shall
require the written consent of the spouse, duly witnessed by a Plan
representative or Notary Public, unless the spouse's consent is
waived by the Administrative Committee in accordance with
applicable law. The election or revocation shall be effective when
the completed form is filed with the Administrative Committee.
e) Notwithstanding the provisions of paragraph (a) above, a
Participant who is not in receipt of a Pension as of August 23,
1984, whose service terminated on or after January 1, 1976 and
prior to August 23, 1984 with a right to a deferred vested Pension
may elect, during the period beginning on August 23, 1984 and
ending on the earlier of the commencement date of the Participant's
Pension or his date of death, to have the provisions of this
Section apply to him.
No Duplication of Benefits
5.6 There shall be no duplication of benefits upon re-entry, if a
Participant leaves the Plan and subsequently re-enters the Plan.
5.7 Any Participant, or surviving Beneficiary, who has received a
retirement benefit for at least one (1) full year prior to December 31,
1983, shall have his benefit recomputed by increasing said benefit to
the greater of an amount equal to three (3) percent multiplied by the
number of full years elapsed from the date of retirement to December
31, 1983 times their present annual pension benefit, or five ($5.00)
dollars per month. Such recomputed benefit shall thereafter be paid to
the Participant, or surviving Beneficiary, as long as he is entitled to
receive a benefit under the provisions of the Plan.
SECTION VI - PAYMENT OF RETIREMENT BENEFITS
Normal Form
6.1 The normal form of retirement benefit provided for in Section V,
whether payable at normal, early, or deferred retirement date, shall be
made in monthly installments commencing on the Participant's retirement
date and must be paid in the form of a qualified joint and survivor
annuity as set out below.
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If the Participant is married on his retirement date and does not make
any of the elections set forth below, the benefit will be reduced to
the Equivalent Actuarial Value of the benefit determined in Section V
and shall be payable during the Participant's life, with the provisions
that after his death a benefit at one-half the rate of the benefit
payable to the Participant shall be paid during the life of, and to,
his spouse.
If the Participant is not married on his retirement date, or if a
married Participant so elects, the benefit will be payable in the
amount determined in accordance with Section V in the form of a life
annuity which provides monthly annuity payments to the Participant
during his lifetime, the first payment becoming due on the
Participant's retirement date provided he is then living. Such payments
will terminate with that last payment due preceding the death of the
Participant, except that, if, at the date of the Participant's death
120 monthly payments have not been made, payments will be continued to
the Beneficiary designated by the Participant until the total number of
annuity payments made to the Participant and his Beneficiary equals
120. If a Participant fails to designate a Beneficiary, if a designated
Beneficiary dies while receiving annuity payments, a death benefit
equal to the commuted value of any remaining unpaid stipulated payments
will be paid to the estate of the Participant.
Optional Joint and Survivor Form
6.2 In lieu of forms of a retirement benefit set forth above, a Participant
may elect the optional joint and survivor form. This form provides
monthly annuity payments, the first payment becoming due on the
Participant's retirement date provided he is then living. Such payments
will be made to the Participant during his lifetime and after his death
will be continued in the same amount, two-thirds thereof or one-half
thereof, as the Participant may elect, to the Beneficiary designated by
the Participant provided such Beneficiary survives the Participant. The
payments will terminate with the last payment due preceding the death
of the Participant or of his Beneficiary, whichever occurs last.
The monthly amount payable thereunder will be determined by applying to
the amount of the retirement benefit on the normal form otherwise
payable to the Participant the percentage applicable to the Participant
and his designated Beneficiary at their respective ages at nearest
birthday on the Participant's retirement date as set forth in Appendix
A; such percentage being based on the proportion of the reduced amount
of retirement benefit which is to be continued to the designated
Beneficiary after the death of the Participant.
The application of the computation of the Joint and Survivor Form of
benefit, as set out directly above, shall not reduce the benefit which
had been accrued on December 31, 1983, for any individual who was a
Participant before January 1, 1983, utilizing any percentage applicable
from previous tables that varied benefits based on the sex on the
Participant.
Optional Life Form
6.3 In lieu of the forms of retirement benefit set forth above, a
Participant may elect the optional life form. This form provides
monthly payments to the Participant during his lifetime, the first
payment becoming due on the Participant's retirement date provided he
is then living. The payments will terminate with the last payment due
preceding the death of the Participant.
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The monthly amount payable under this option will be determined by
applying to the amount of the retirement benefit in the normal form
otherwise payable to a Participant, the percentage from Appendix A
applicable to the Participant for his age at his nearest birthday to
his retirement date.
Elections of Options
6.4 a) A married Participant's election of any option which does not
provide for monthly payment to his spouse for life after the
Participant's death, in an amount equal to at least 50% but not
more than 100% of the monthly amount payable under the option to
the Participant, shall be effective only if the spouse's written
consent to the election is received by the Administrative
Committee. The spouse's written consent shall be witnessed by a
Plan representative or notary public and shall acknowledge the
effect on the spouse of the Participant's election of the option.
If the Participant establishes to the satisfaction of the
Administrative Committee that spousal consent cannot be obtained
because the Participant's spouse cannot be located, then no spousal
consent is needed.
b) The Corporation shall furnish to each married Participant within a
reasonable time, but more than 90 days, before payment of his
Pension is to begin, a written explanation in nontechnical terms
and conditions of the joint and survivor Pension provided under
Section 6.1, the financial effect upon the Participant's Pension of
making an election of the Optional Joint and Survivor Form (Section
6.2 above) or the effect of making an election for the Optional
Life Form (Section 6.3 above) in lieu of the Normal Form (Section
6.1 above), the rights of the Participant's spouse as provided in
paragraph (a) above, and the right of the Participant to make, and
to revoke, an election under Section 6.2 or 6.3. An election under
either 6.2 or 6.3 shall be made on a form provided by the
Administrative Committee, and may be made at any time after the
information is furnished to the Participant and before the date the
Participant's Pension begins; provided that the period during which
the election may be made shall be a period of at least 90 days.
However, a married Participant may file with the Administrative
Committee more than 90 days before the date his Pension is to begin
a written request for detailed information as to the amount of his
Pension under the various options available to him. If he makes
that request, the period during which an election of an optional
payment form may be made shall be extended, if necessary, to
include the 60 days following receipt by the Participant of that
information.
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c) An election of either of the options under Sections 6.2, or 6.3 may
be revoked on a form provided by the Administrative Committee and a
new election may be made, during the applicable election period. An
election of an optional benefit shall be effective on the date the
Participant's Pension begins. A revocation of any election shall be
effective when the completed form is filed with the Administrative
Committee. If a Participant who has elected an optional benefit
dies before the date the election of the option becomes effective,
the election shall be revoked. If the Beneficiary designated under
an option dies before the date the election of the option becomes
effective, the election shall be revoked.
d) In the event that a vested Participant has elected to receive a
qualified joint and survivor form of benefit, such Participant:
(i) may elect with the written consent of his or her spouse to a
specified alternate beneficiary not to take the joint and
survivor annuity and,
(ii) may revoke an election not to take a joint and survivor
annuity, or choose again to take a joint and survivor annuity
at any time, or any number of times, within the applicable
election period as set out in Section 5.5(d).
Frequency of Payment of Retirement Benefits
6.5 Retirement benefits hereunder will be paid monthly except that if such
payments would amount to less than $10.00 each, the right is reserved
to make payments at less frequent intervals; provided, however, that if
the annual rate of retirement benefit payable to a Participant or his
designated Beneficiary is less than $80.00 and the Equivalent Actuarial
Value of the benefit is less than or equal to $3,500, payment shall be
made to such Participant or his designated Beneficiary in one (1) lump
sum equal to the Equivalent Actuarial Value of the retirement benefit
and such payment will be in full settlement of all liability on account
of such Participant or his designated Beneficiary.
Restoration of Retired Participant or Former Participant to Service
6.6 If a retired Participant or former Participant in receipt of a deferred
vested retirement benefit is restored to service with the Corporation
prior to his normal retirement date, his retirement benefit shall cease
and any election of an optional benefit in effect thereunder shall
become void. Any election of a spouse's allowance under Section 9.6 in
effect at the time of his retirement shall again become effective. Any
Vesting Service and Benefit Service to which he was entitled when he
retired shall be restored to him, and upon subsequent retirement his
allowance shall be based on the benefit formula then in effect and his
Annual Earnings and Benefit Service before and after the period of
prior retirement, reduced by an amount of equivalent actuarial value to
the benefits he received before his restoration to service. The part of
the retired Participant's retirement benefit upon subsequent retirement
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payable with respect to benefit service rendered before the period of
his previous retirement shall in no event be less that the amount of
his previous retirement benefit modified to reflect any option in
effect on his subsequent retirement.
If any retired Participant or former Participant in receipt of a
deferred vested retirement benefit is restored to service with the
Corporation as an Employee on or after his normal retirement date and
completes more than 750 hours of service in a calendar year, his
retirement benefit shall be suspended for each month during the period
of restoration, after he has completed 750 hours of service, which
constitutes a month of "suspension service".
6.7 Latest Commencement of Payments
a) A Participant's Pension shall begin not later than the 60th day
following the end of the Plan Year in which occurs the latest of:
(i) the Participant's 65 birthday,
(ii) the tenth anniversary of the date on which he became a
Participant, or
(iii) the date he terminates service with the Corporation.
b) In no event shall the provisions of paragraph (a) above operate so
as to allow the Participant's Pension to begin later than:
(i) the April 1 following the calendar year in which the
Participant attains age 70 1/2, or
(ii) in the case of a Participant who does not own either (A) more
than five (5) percent of the outstanding stock of the
Corporation, or (B) stock possessing more than five (5)
percent of the total combined voting power of all stock of
the Corporation, the April 1 following the calendar year in
which he retires under Section 4.1, 4.2, or 4.3.
6.8 Anything to the contrary notwithstanding, any distribution from the
Plan shall be made in accordance with section 401(a)(9) of the Code and
the regulations thereunder.
SECTION VII - FINANCING AND CONTRIBUTIONS
7.1 The Corporation has executed a Trust Agreement with the Trustee to
manage and operate the Fund and to receive, hold, invest, and disburse
such contributions, interest and other income as may be necessary to
pay the retirement benefits under the Plan. The Corporation in its
discretion may continue the Trust Agreement or may change from trust
funds to insured funds or from insured funds to trust funds provided
(i) the rights and obligations of the parties shall remain
substantially the same except as may necessarily be changed in order to
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effect such transfer, and (ii) any change will not adversely affect
Internal Revenue Service approval. The Trustee may be authorized to pay
retirement benefits directly or if instructed by the Administrative
Committee, to buy group annuity contracts or individual annuity
policies before or after the retirement of Participants (including but
not limited to contracts of the deposit administration type) and to pay
the premium for such contracts or policies.
7.2 The Corporation shall make such annual contributions to the Fund or pay
such premiums to any insured fund or both as will be sufficient under
sound actuarial principles determined by a qualified actuary to provide
the retirement benefits under the Plan and to meet the minimum
requirements of any applicable law.
Any forfeitures shall be used to reduce the contributions of the
Corporation otherwise payable, and will not be applied to increase the
benefits any Participant would receive under the Plan; forfeitures will
not be used to reduce employers contributions until the year of the
Break in Service.
SECTION VIII - TERMINATION OF SERVICE
8.1 Upon termination of a Participant's employment for any reason other
than retirement, death or total and permanent disability, the
Corporation shall give prompt written notice thereof to the
Administrative Committee that the service of such Participant has been
terminated and the date of such termination.
8.2 Upon the attainment of Normal Retirement Age, a Participant shall be
100% vested. Upon termination of a Participant's employment with the
Corporation for any reason other than retirement, death or total and
permanent disability, such Participant shall retain rights to a
percentage of the retirement benefit commencing at his normal
retirement date in accordance with Section V hereof as follows:
Vested Interest In
Years of Vesting Service Accrued Retirement Benefit
------------------------------------------------------------
Less than 5 years No vested benefit
5 years, or more1 100% vested
(1) Such Vesting Benefit to be applicable only to Participants terminating on
or after January 1, 1989.
The accrued retirement benefit, in accordance with Section V will be
determined based on Annual Earnings and Benefit Service completed up to
the date of termination of employment. In no event shall a
Participant's vested benefit be less than the amount to which he would
have been entitled based on the Plan provisions in effect on December
31, 1988.
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8.3 If, on the date of the Participant's termination of employment, he had
completed 15 years of Benefit Service but had not reached age 55, he
may on or after attainment of age 55 elect to receive, commencing on
the first day of the month next following the date his election is
received by the Administrative Committee, benefits at a reduced amount
which shall be of Equivalent Actuarial Value to the deferred allowance
commencing at this normal retirement date.
8.4 Subject to the provisions of Section XVI, a lump sum payment of
Equivalent Actuarial Value shall be made in lieu of all benefits if the
present value of any Pension amounts to $3,500 or less. The lump sum
payment may be made at any time on or after the date the Participant
terminates employment.
SECTION IX - DEATH BENEFITS
9.1 Upon the death of a Participant before his normal or early retirement
date, whichever is applicable, his death benefits shall be those
payable under provisions of the Corporation's Group Supplemental Term
Insurance program. This death benefit coverage will be subject to such
restrictions as may be contained in the group life insurance contract
in force from time to time which the Corporation intends to maintain
with a recognized insurance company on the life of every Participant.
9.2 Upon the death of a Participant after his normal retirement date but
prior to actual retirement, any monthly benefit which his designated
Beneficiary would have been entitled to receive had he actually retired
on the day before his death, will be paid to said Beneficiary in the
manner and to the extent provided in Section VI.
9.3 Upon the death of a Participant after his normal retirement date and
after his actual retirement date and after his actual retirement, any
death benefit payable to his designated Beneficiary or to the executor
or the administrator of his estate shall be limited to any monthly
benefits that may then be unpaid, if any, as provided in Section VI.
9.4 Upon the death of a Participant after retirement at his early
retirement date, the death benefit, if any, payable to his designated
Beneficiary or to the executor or administrator of his estate shall be
limited to any monthly benefits that may then be unpaid as provided in
Section VI.
9.5 Notwithstanding the foregoing, if a Participant who was a Participant
under the Former Plan dies before his normal retirement date, the death
benefit payable to his estate shall in no event be less than the death
benefit provided under the Former Plan as certified to the Insurance
Company by the Trustee.
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9.6 a) A Participant who is employed during the period beginning on the
later of:
(i) The earliest date, as provided for in Section IV, on which a
Participant may elect to receive retirement benefits;
(ii) The first day of the 120th month beginning before the
Participant reaches Normal Retirement Age; or
(iii) The date on which the Participant begins participation, will
be given an opportunity to elect to have a survivor benefit
payable to his or her spouse in event of his or her death
prior to Normal Retirement Age under the Plan. Upon
retirement, the allowance payable to a Participant who has
made such election and, if applicable, to his spouse upon his
death after retirement, shall be reduced by an amount which
is of Equivalent Actuarial Value to the spouse's allowance
which would have been provided under such election had he
died prior to retirement. Upon the death of such a
Participant prior to his normal retirement date or his
retirement, whichever occurs first, an allowance shall be
payable to his surviving spouse, provided that he and said
spouse have been married throughout the one (1) year period
ending on the date of his death.
b) The "early survivor annuity" shall be equal to the allowance which
would have been payable to the spouse if the Participant had
retired on an early retirement allowance commencing on the first
day of the month preceding his date of death in accordance with
Sections 4.2 and 5.2.
The Administrative Committee shall give notice to each Participant
six (6) months prior to date he becomes eligible as outlined above,
as to the availability of the "early survivor annuity" and a
general explanation as to the financial impact of making the
election.
c) An election under this section shall become effective one (1) year
after the Participant's notice of election is received by the
Administrative Committee, but not earlier than the date on which he
first meets the age and service requirements for early retirement.
If the Participant or his spouse dies prior to the time such
election becomes effective, the election shall thereby be revoked,
except that if the Participant's death is due to accidental causes
and occurs after the date on which he first meets the age and
service requirements for early retirement and such election was
made prior to the occurrence of the accident, the election shall
become effective as of the date of his death. A Participant may
revoke an election under this section either before or after it
becomes effective, an appropriate actuarial reduction shall be made
in his retirement allowance upon his subsequent retirement.
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SECTION X - ADMINISTRATIVE COMMITTEE AND ADMINISTRATION
10.1 The general administration of the Plan and the responsibility for
carrying out the provisions of the Plan shall be placed in a
Administrative Committee of not less that three (3) persons appointed
from time to time by the Board of Directors. Any member of the
Administrative Committee may resign by delivering his written
resignation to the Board of Directors and the Secretary of the
Administrative Committee.
10.2 The members of the Administrative Committee shall elect a Chairman from
their number and a Secretary who may be but need not be one of the
members of the Administrative Committee; may appoint from their number
such committees with such powers as they shall determine; may authorize
one or more of their number or any agent to execute or deliver any
instrument or make any payment on their behalf; may retain counsel,
employ agents and provide for such clerical, accounting, actuarial and
consulting services as they may require in carrying out the provisions
of the Plan; may direct the Trustee in the management of the assets of
the Plan; may appoint one or more investment managers to direct the
Trustee in the management of the assets of the Plan provided that such
appointment shall be of no effect unless approved by the Board of
Directors; may allocate among themselves or delegate to other persons
all or such portion of their duties hereunder, other than those granted
to the Trustee under the Trust instrument adopted for use in
implementing the Plan, as they, in their sole discretion shall decide,
provided that any such allocation or delegation shall be of no effect
unless approved by the Board of Directors and shall be periodically
reviewed by the Administrative Committee.10.3 The Administrative
Committee shall hold meetings upon such notice, at such place or
places, and at such time or times as it may from time to time
determine.
10.4 Any act which the Plan authorizes or requires the Administrative
Committee to do may be done by a majority of its members. The action of
such majority expressed from time to time by a vote at a meeting or in
writing without a meeting shall constitute the action of the
Administrative Committee and shall have the same effect for all
purposes as if assented to by all members of the Administrative
Committee at the time in office.
10.5 No member of the Administrative Committee shall receive any
compensation from the Plan for his services as such.
10.6 Subject to the limitations of the Plan, the Administrative Committee
from time to time shall establish rules for the administration of the
Plan and the transaction of its business. The determination of the
Administrative Committee as to any disputed question shall be
conclusive.
10.7 The Administrative Committee shall adopt from time to time service and
mortality tables and the rate or rates of interest, compounded
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annually, which shall be used in all actuarial calculations required in
connection with the Plan. As an aid to the Administrative Committee in
adopting such tables and in fixing the rates of the Company
contributions payable to the Plan, the actuary designated by the
Administrative Committee shall make annual actuarial valuations of the
contingent assets and liabilities of the Plan, and shall submit to the
Administrative Committee such tables and rates of contribution as he
recommends for use. The Administrative Committee shall maintain
accounts showing the fiscal transactions of the Plan, and shall keep in
convenient form such data as may be necessary for actuarial valuations
of the Plan. The Administrative Committee shall submit a report each
year to the Board of Directors, giving a brief account of the operation
of the Plan during the past year, and a copy of such report shall be
filed in the office of the Plan, where it shall be open to inspection
by any member of the Plan.
10.8 The members of the Administrative Committee shall use that degree of
care, skill, prudence and diligence that a prudent man acting in a like
capacity and familiar with such matters would use in his conduct of a
similar situation.
SECTION XI - NON-ALIENATION OF BENEFITS
11.1 To the extent permitted by law, none of the benefits or payments or
proceeds of any contract arising out of or by virtue of this Plan shall
be subject to any claim or any legal process by a creditor of a
Participant or of any beneficiary, and neither the Participant nor any
beneficiary shall have the right to anticipate, alienate, encumber or
assign any of the benefits, payments, proceeds, or avails arising out
of the Plan, other than pursuant to a "Qualified Domestic Relations
Order" pursuant to section 414(p) of the Code.
SECTION XII - PAYMENTS OF BENEFITS TO PERSON OTHER THAN DESIGNATED BENEFICIARY
12.1 In the event that there shall be found, upon evidence satisfactory to
the Administrative Committee, that any person to whom a retirement
benefit is payable hereunder is unable to care for his affairs because
of illness or accident, any payment due (unless prior claim therefor
shall have been made by a guardian or other legal representative) may
be paid to the spouse, parent, brother or sister or other party
(including private or public institutions) determined by the
Administrative Committee to have incurred expense for such person or
otherwise entitled to payment. Any such payment shall be a payment for
the account of the Participant, retired Participant or other
Beneficiary and shall be a complete discharge of any liability under
the Plan therefor.
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SECTION XIII - RIGHTS AND OBLIGATIONS OF THE CORPORATION
13.1 The Corporation by action of its Board of Directors may amend the Plan
at any time and from time to time but no amendment shall make it
possible at any time prior to the satisfaction of all liabilities under
the Plan for any part of the Fund to revert to the Corporation or to be
used for or diverted to purposes other than the exclusive benefit of
Participants and their Beneficiaries either by operation or termination
of the Plan, Deposit Administration Contract or the Trust, by power of
revocation or amendment, by collateral agreement or by any other means,
provided, however, that any funds remaining after satisfaction of all
liabilities under this Plan and due to erroneous actuarial calculations
shall be returned to the Corporation.
13.2 The Plan shall not be deemed to constitute a contract between any
Employee and the Corporation or to be a consideration of or for
employment. Nothing in the Plan shall give any Employee the right to be
retained in the employ of the Corporation. All Employees shall remain
subject to discharge, discipline or layoff without regard to the
existence of the Plan or their participation in it.
13.3 The Corporation hopes and expects to maintain this Plan as a permanent
and continuing retirement program but in order to guard against
unforeseen circumstances, the right to terminate the Plan and
discontinue all payments to the Trustee and/or on account of any
Deposit Administration Contract to provide benefits hereunder is
unconditionally reserved by the Corporation.
13.4 The Corporation, by action of its Board of Directors, may terminate the
Plan for any reason at any time. In case of termination of the Plan, or
partial termination, the rights of Participants to the benefits accrued
under the Plan to the date of such termination or discontinuance, to
the extent then funded, shall be non-forfeitable.
The funds of the Plan shall be used for the exclusive benefit of
Participants, spouses, former Participants, retired Participants,
Beneficiaries, and contingent annuitants under the Plan as of the date
of such termination or discontinuance of contributions, except as
otherwise provided herein and except that any funds not required to
satisfy all liabilities of the Plan for benefits because of erroneous
actuarial computation shall be returned to the Corporation.
Upon the complete termination of the Plan, each Participant employed by
the Corporation shall have a fully vested and nonforfeitable interest
in his accrued benefit, as of the date of termination, to the extent
then funded. In such event, the net assets of the Fund, after payment
of all expenses incident to the termination, shall be allocated among
the Participants and their spouses and beneficiaries in accordance with
section 4044 of the Employee Retirement Income Security Act of 1974 and
applicable Pension Benefit Guaranty Corporation regulations, subject to
the approval of the Internal Revenue Service.
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The Company, in its discretion, may determine to continue the Fund for
the purpose of paying out funded benefits to Participants and their
spouses and their beneficiaries upon the contingencies and in the
circumstances as set forth in the Plan, with such modifications as may
be necessary by reason of the termination, or at any time may determine
to terminate the Fund by the distribution of all funded benefits
through the purchase of annuities or, if determined by the Company,
lump sum payments or any other lawful means, provided that any
annuities purchased shall include terms consistent with this Plan and
that the lump sum payments are of Equivalent Actuarial Value.
Upon any termination of the Plan that constitutes a partial termination
under applicable law, each affected Participant shall have a fully
vested and nonforfeitable interest in his accrued benefit as of the
date of the partial termination, to the extent then funded. Benefits
shall be paid to Participants affected by the partial termination upon
the contingencies and in the circumstances as set forth in the Plan.
13.5 The annual payments to any Top-25 Employee (as described in (b)) are
restricted to an amount equal to the payments that would be made on
behalf of the Employee under a single life annuity that is of
Equivalent Actuarial Value to the sum of the Employee's accrued benefit
and the Employee's other benefits under the Plan.
a) This restriction does not apply however if (1) after payment to an
employee described in (b) of all benefits described in (c), the
value of the Plan assets equals or exceeds 110% of the value of
current liabilities, as defined in section 412(l)(7) of the Code,
or (2) the value of the benefits described in (c) for an employee
described in (b) is less than 1% of the value of such current
liabilities.
b) Top-25 Employees - The employees whose benefits are restricted on
distribution include all highly compensated employees and highly
compensated former employes (see (d)), subject to the limitation
of the next sentence. In any one year, the total number of
employees whose benefits are subject to restriction under this
Section is limited to the group of 25 highly compensated employees
and highly compensated former employees with the greatest
Compensation as defined in (e).
c) "Benefit" Defined - For purposes of this Section, "benefit"
includes loans in excess of the amounts set forth in section
72(p)(2)(A) of the Code, any periodic income, any withdrawal
values payable to a living employee, and any death benefits not
provided for by insurance on the employee's life.
d) Highly Compensated - The term "highly compensated" has the meaning
given that term by section 414(q) of the Code.
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e) Compensation - The term "compensation" has the same meaning as
Annual Earnings.
f) Other Exceptions - The provisions of this Section do not apply if
the Commissioner determines that such provisions are not necessary
to prevent the prohibited discrimination that may occur in the
event of an early termination of the Plan.
13.6 The Plan may not be merged or consolidated with, nor may its assets or
liabilities be transferred to, any other plan unless each Participant,
spouse, former Participant, retired Participant, Beneficiary or
contingent annuitant under the Plan would, if the resulting plan were
then terminated, receive a benefit immediately after the merger,
consolidation, or transfer which is equal to or greater than the
benefit he would have been entitled to receive immediately before the
merger, consolidation, or transfer if the Plan had then terminated.
SECTION XIV - MAXIMUM RETIREMENT BENEFITS
14.1 Maximum Benefit Limitation
(a) The maximum annual Pension payable to a Participant under the
Plan, when added to any pension attributable to contributions of
the Corporation or an Affiliated Employer Corporation provided to
the Participant under any other qualified defined benefit plan,
shall be equal to the lesser of (1) $90,000 or (2) the
Participant's average annual remuneration during the three (3)
consecutive calendar years of his participation in the Plan
affording the highest such average, or during all of the years in
which he was a Participant of the Plan if less than three (3)
years, subject to the following adjustments:
(i) If the Participant has not been a Participant of the Plan
for at least 10 years, the maximum annual Pension in clause
(1) above shall be multiplied by the ratio which the number
of years of his participation in the Plan bears to 10. This
adjustment shall be applied separately to the amount of the
Participant's Pension resulting from each change in the
benefit structure of the Plan, withthe number of the years
of participation in the Plan being measured from the
effective date of each such change.
(ii) If the Participant has not completed 10 years of Vesting
Service, the maximum annual Pension in clause (2) above
shall be multiplied by the ratio which the number of years
of his Vesting Service bears to 10.
(iii) If the Pension begins before the Participant's social
security retirement age but on or after his 62nd birthday,
the maximum Pension in clause (1) above shall be reduced by
5/9 of one percent for each of the first 36 months plus 5/12
of one percent for each additional month by which the
Participant is younger than the social security retirement
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age at the date his Pension begins. If the Pension begins
before the Participant's 62nd birthday, the maximum Pension
in clause (1) above shall be of Equivalent Actuarial Value
to the maximum benefit payable at age 62 as determined in
accordance with the preceding sentence.
(iv) If the Pension begins after the Participant's social
security retirement age, the maximum Pension in clause (1)
above shall be of Equivalent Actuarial Value to that maximum
benefit payable at the social security retirement age.
(v) If the Participant's Pension is payable as a joint and
survivor Pension with his spouse as the Beneficiary, the
modification of the Pension for that form of payment shall
be made before the application of the maximum limitation,
and, as so modified, shall be subject to the limitation.
(vi) As of January 1 of each calendar year beginning on or after
January 1, 1988, the dollar limitation as determined by the
Commissioner of Internal Revenue for that calendar year
shall become effective as the maximum permissible dollar
amount of Pensions payable under the Plan during the
calendar year, including Pensions payable to the
Participants who retired prior to that calendar year, in
lieu of the dollar amount in clause (1) above.
(b) In the case of a Participant who is also a participant of a
defined contribution plan of the Corporation or an Affiliated
Employer Corporation, his maximum benefit limitation shall not
exceed an adjusted limitation computed as follows:
(i) Determine the defined contribution fraction.
(ii) Subtract the result of (i) from one (1.0).
(iii) Multiply the dollar amount in clause (1) of paragraph (a)
above by 1.25.
(iv) Multiply the amount described in clause (2) of paragraph
(a) above by 1.4.
(v) Multiply the lesser of the result of (iii) or the result of
(iv) by the result of (ii) to determine the adjusted maximum
benefit limitation applicable to the Participant.
(c) For purposes of this Section:
(i) the defined contribution fraction for a Participant who is a
participant of one or more defined contribution plans of the
Corporation or an Affiliated Employer Corporation shall be a
fraction the numerator of which is the sum of the following:
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(A) the Corporation's and Affiliated Employer
Corporation's contributions credited to the
Participant's accounts under the defined contribution
plan or plans,
(B) with respect to calendar years before 1987, the lesser
of the part of the Participant's contributions in
excess of 6 percent of his compensation or one-half of
his total contributions to such plan or plans, and
with respect to calendar years beginning after 1986,
all of the Participant's contributions to such plan or
plans, and
(C) any forfeitures allocated to his accounts under such
plan or plans, but reduced by any amount permitted by
regulations promulgated by the Commissioner of
Internal Revenue; and the denominator of which is the
lesser of the following amounts determined for each
year of the Participant's Vesting Service:
(D) 1.25 multiplied by the maximum dollar amount allowed
by law for that year; or
(E) 1.4 multiplied by 25% of the Participant's
remuneration for that year. At the direction of the
Administrative Committee, the portion of the
denominator of that fraction with respect to calendar
years ending before 1983 shall be computed as the
denominator of 1982, as determined under the law as
then in effect, multiplied by a fraction the numerator
of which is the lesser of:
(F) $51,875, or
(G) 1.4 multiplied by 25% of the Participant's
remuneration for 1981, and the denominator of which is
the lesser of:
(H) $41,500, or
(I) 25% of the Participant's remuneration for that
calendar year;
(ii) a defined contribution plan means a pension plan which
provides for an individual account for each participant and
for benefits based solely upon the amount contributed to the
participant's account, and any income, expenses, gains and
losses, and any forfeitures of accounts of other
participant's which may be allocated to that participant's
accounts, subject to (iii) below;
(iii) a defined benefit plan means any pension plan which is not a
defined contribution plan; however, in the case of a defined
benefit plan which provides a benefit which is based partly
on the balance of the separate account of a participant,
that plan shall be treated as a defined contribution plan
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to the extent benefits are based on the separate account of
a participant and as a defined benefit plan with respect to
the remaining portion of the benefits under the plan;
(iv) the term "remuneration" with respect to any Participant
shall mean all earnings as defined in Section 1.4 of this
Plan.
(v) the term "social security retirement age" with respect to
any Participant shall mean age 65 with respect to a
Participant who was born before January 1, 1938; age 66 with
respect to a Participant who was born after December 31,
1937 and before January 1, 1955; and age 67 with respect to
a Participant who was born after December 31, 1954;
(vi) the term "Equivalent Actuarial Value" means the equivalent
value when computed on the basis of the 1963 George B. Buck
Mortality Table, assuming 80% males and 20% females, and
interest at the rate of five (5) percent per year,
compounded annually; and
(vii) the term "Pension" means a benefit payable annually in the
form of a straight life annuity (with no ancillary benefits)
under a plan to which employees do not contribute and under
which no rollover contributions are made.
(d) Notwithstanding the preceding paragraphs of this Section, a
Participant's annual Pension payable under this Plan, prior to any
reduction required by operation of paragraph (b) above, shall in
no event be less than
(i) the benefit that the Participant had accrued under the
Plan as of the end of the Plan Year beginning in 1982,
with no changes in the terms and conditions of the Plan
on or after July 1, 1982 taken into account in
determining that benefit, or
(ii) the benefit that the Participant had accrued under the
Plan as of the end of the Plan Year beginning in 1986,
with no changes in the terms and conditions of the Plan
on or after May 5, 1986 taken into account in
determining that benefit.
(e) For the purpose of this Section, if the accrued benefit of any
Participant exceeds the benefit limitations under Section 415 of
the Code, as amended by TRA '86, said benefit is reduced, as of
the first limitation year beginning after December 31, 1986 to the
level permitted under TRA '86.
14.2 Top-Heavy Provisions
a) For purposes of this Section, the Plan shall be "top-heavy" with
respect to any Plan Year beginning on or after January 1, 1984 if,
as of the last day of the preceding Plan Year, the present value
of the cumulative Accrued Benefits under the Plan for "key
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employees" exceeds 60 percent of the present value of the
cumulative Accrued Benefits under the Plan for all Employees,
determined as of the applicable "valuation date". For purposes of
this paragraph (a), "valuation date" shall mean the date as of
which annual plan costs are or would be computed for minimum
funding purposes with respect to such preceding Plan Year. The
determination as to whether an Employee will be considered a "key
employee" shall be made in accordance with the provisions of
Section 416(i) (1) and (5) of the Code and any regulations
thereunder, and, where applicable, on the basis of the Employee's
compensation from the Corporation as reported on Form W-2 for the
applicable Plan Year. The present value of Accrued Benefits shall
be computed in accordance with Section 416 (g) (3) and (4) (B) of
the Code on the basis of the l963 GBB Mortality Table with
interest of 5 percent.
For purposes of determining whether the Plan is top-heavy, the
present value of Accrued Benefits under the Plan will be combined
with the present value of Accrued Benefits or account balances
under any other qualified plan of the Corporation or an Affiliated
Corporation Employer including consideration of any terminated
Plan, including Keogh Plan in which there are Participants who are
key employees or which enables the Plan to meet the requirements
of Section 401(a)(4) or 410 of the Code, and, in the Corporation's
discretion, may be combined with present value of Accrued Benefits
of account balances under any other qualified plan of the
Corporation or an Affiliated Corporation Employer in which all
members are non-key employees if the contributions or benefits
under that other plan are at least comparable to the benefits
provided under this Plan.
For Plan years beginning after December 31, l984, the accrued
benefit of an employee, who has not performed any service for the
employer maintaining the Plan at any time during the five-year
period ending on the determination date, is excluded from the
calculation to determine top-heaviness. When testing for
"top-heavy" conditions non-proportional subsidies, if applicable,
shall be considered.
In any Plan year that the Plan is "top-heavy" the annual
compensation of each employee taken into account for such plan
year to determine compensation, or benefit shall not exceed the
first $200,000 of such compensation.
For the purpose of this section only, any determination, as
provided for above, shall use a 6-year graded vesting schedule, as
set out below:
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6-Year Graded Vesting Schedule(1)
Nonforfeitable
Years of Service Percentage
----------------------------------------------------------
2 20
3 40
4 60
5 80
6 or more 100
(1) (If in any event this vesting schedule becomes effective any
Participant having not less than 3 years of service is permitted to
elect, within a reasonable period after the effective date of such
vesting provision to have his nonforfeitable percentage computed
under the Plan without regard to the vesting schedule set out
directly above.)
In any year that the Plan is "top-heavy" the minimum annual benefit for
each non-key employee's minimum annual benefit shall be equal to the
lesser of 20%, or 2% per year of service based on each employee's
average compensation for the five (5) highest consecutive service
years. An Employee who is eligible to participate in any other benefit
plan of the Employer shall have his minimum benefit computed and
recognized under this defined benefit plan.
For the purpose of this section, each non-key employee who has
completed at least 1000 hours of service during an accrual computation
period shall accrue a minimum benefit, as set out above, for the year
in question. Each plan of the Employer in which a "key employee"
participates (in the Plan year containing the date or any of the four
(4) preceding plan years) and each other plan which enables a "key
employee" to participate during the period tested to meet the
requirements of IRC 401 (a) (4), or 410(b) shall be aggregated for
top-heavy testing purposes and are considered the required aggregation
group.
For the purpose of this section, a "non-key" employee is an employee
who is not a key employee and if applicable may include employees who
are former "key-employees".
In the event that the above top-heavy provisions become effective and
the "non-key" employee is a Participant in any other defined benefit
Plan, defined contribution plan, such benefit, or which have accrued in
such other plans shall be considered as an off-set to the minimum
defined benefit as set out above.
SECTION XV - MISCELLANEOUS
15.1 The headings and sub-headings in the Plan are inserted for reference
only and are not to be considered in the construction of the provisions
of the Plan.
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15.2 The Plan may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one and
the same instrument sufficiently evidenced by any one thereof.
15.3 The provisions of the Plan shall be interpreted in accordance with
federal laws and regulations and, except to the extent preempted by
federal law, in accordance with the laws of the State of New York.
15.4 Conditions of Employment Not Affected by Plan
The establishment of the Plan shall not confer any legal rights upon
any Employee or other person for a continuation of employment, nor
shall it interfere with the rights of the Corporation to discharge any
Employee and to treat him without regard to the effect which that
treatment might have upon him as a Participant or potential Participant
of the Plan.
In case any provisions of the Plan shall be held illegal or invalid for
any reason, such illegality or invalidity shall not affect the
remaining provisions of the Plan which shall remain in full force and
effect.
15.5 Lost Beneficiary
Any benefit payable under the Plan shall be forfeited if the
Corporation after reasonable effort is unable to locate the Participant
or beneficiary to whom payment is due. However, any such forfeited
benefit shall be reinstated and become payable if a claim is made by
the Participant or beneficiary for such forfeited benefit.
SECTION XVI - DISTRIBUTIONS AFTER DECEMBER 31, 1992
16.1 This Section applies to distributions made on or after January 1, 1993.
Notwithstanding any provision of the plan to the contrary that would
otherwise limit a distributee's election under this section, a
distributee may elect, at the time and in the manner prescribed by the
plan administrator, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan specified by
the distributee in a direct rollover.
16.2 Definitions
a) Eligible rollover distribution: An eligible rollover distribution
is any distribution of all or any portion of the balance to the
credit of the distributee, except that an eligible rollover
distribution does not include any distribution that is one of a
series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy)
of the distributee or the joint lives (or joint life expectancies)
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of the distributee and the distributee's designated beneficiary,
or for a specified period of ten years or more; any distribution
to the extent such distribution is required under section
401(a)(9) of the Code; and the portion of any distribution that is
not includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities).
b) Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in section 408(a) of the
Code, an individual retirement annuity described in section 408(b)
of the Code, an annuity plan described in section 403(a) of the
Code, or a qualified trust described in section 401(a) of the
Code, that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible retirement plan
is an individual retirement account or individual retirement
annuity.
c) Distributee: A distributee includes an employee or former
employee. In addition, the employee's or former employee's
surviving spouse and the employee's or former employee's spouse or
former spouse who is the alternate payee under a qualified
domestic relations order, as defined in section 414(p) of the
Code, are distributees with regard to the interest of the spouse
or former spouse.
d) Direct rollover: A direct rollover is a payment by the plan to the
eligible retirement plan specified by the distributee.
(NOTE: TABLE 1 ATTACHED HERETO, i.e., JOINT AND SURVIVOR FACTORS, IS
INCORPORATED HEREIN BY REFERENCE.)
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by
its duly authorized officer this 2nd day of March, 1996.
By: /s/ Ross K. Colquhoun
-------------------------------
Ross K. Colquhoun
Chairman of the Board and
Chief Executive Officer
<PAGE>
EXHIBIT 10.25
THE RAYMOND CORPORATION
BENEFIT AND WELFARE PLAN
This document together with the insurance policies, other contracts and
plan texts listed below (referred to collectively as the "Plan Materials" and
individually as the "Policy") constitute the Benefit and Welfare Plan (the
"Plan") for eligible employees of
The Raymond Corporation and participating subsidiaries and
affiliated companies (hereinafter collectively referred to as
the "Employer"):
Plans subject to this document include:
John Hancock Medical
John Hancock Dental
Community Health Plan
HMO-CNY Foundation Health Plan
HMO-CNY Independent Prepaid Health Plan Mohawk Valley Plan
Prepaid Health Plan Prepaid Dental Plan Post Retirement
Medical Plan Employee Spending Accounts - Health and Dependent
Care Security Mutual Group Term Life Insurance Plan
1. Plan Administrator.
This Plan is administered by the Employer's Administrative Committee (the
"Committee") which shall possess all powers necessary to administer the Plan,
including but not limited to the sole discretion to interpret the Plan and to
determine eligibility for benefits. The Committee may designate in writing one
or more of its members or one or more other persons, including any insurance
company that has issued a Policy, to carry out its duties under the Plan. The
Committee is the "named fiduciary" and "plan administrator" as these terms are
used in ERISA. To the extent not covered by insurance, the Employer will
indemnify the members of the Committee and any employee of the Employer acting
in the Committee's behalf against all claims, loss, damages, expense and
liability arising from any action or failure to act.
2. Benefit Entitlement.
Every employee of the Employer who falls within a Policy, other contract or plan
text's terms for coverage is eligible for benefits under that Policy, other
contract or plan text except as excluded below:
Co-op students, apprentices, i.e. high school students who
work no more than 10 hours per week during the school year,
leased employees, part-time "on call" employees, and Type 2
temporary employees, (hired for a term expected to last less
than 6 months).
<PAGE>
See Exhibit A for additional exclusions for each policy, contract or plan text.
Benefits are payable under this Plan only if covered by the Plan Materials and
shall be paid solely pursuant to such Plan Materials. This document does not
create any benefit payment responsibilities of the Employer other than to pay
premiums or other payments required by the Plan Materials.
3. Claims for Benefits.
All claims for benefits under a Policy, other contract or plan text shall be
submitted in accordance with the terms of that Policy, other contract or plan
text and shall be subject to the claims review procedure for that Policy, other
contract or plan text. If the particular claim does not relate to any Policy,
other contract or plan text or if the Policy, other contract or plan text lacks
a claims procedure, claims shall be submitted and processed as follows: A claim
shall be submitted to the Committee within 60 days of the event giving rise to
the claim (or such longer period as the Committee in its sole discretion may
determine). In the event a claim for benefits is denied, the Committee will
provide the claimant with a written notice stating the specific reason or
reasons for denial, including specific provisions of the Plan or Policy, other
contract or plan text relied upon. The notice will also explain what is
necessary to perfect the claim, if possible, and inform the claimant that the
denial may be appealed. Such denial may be appealed by written request to the
Committee within a reasonable time. Within 60 days of receiving a request for
review of a denied claim, the Committee shall provide a written decision to the
claimant.
4. Nonguarantee of Employment.
Nothing contained in this Plan shall be construed as a contract of employment
between the Employer and any employee, or as a right of any employee to be
continued in the employment of the Employer, or as a limitation of the right of
the Employer to discharge any of its employees, with or without cause.
5. Nonalienation of Benefits.
Except as expressly authorized by a Policy, other contract or plan text,
benefits payable under this Plan shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, en-cumbrance,
charge, garnishment, execution, or levy of any kind, either voluntary or
involuntary, prior to actually being received by the person entitled to the
benefit. Any attempt to anticipate, alienate, sell, transfer, assign, pledge,
encumber, charge or otherwise dispose of any right to benefits payable
hereunder, shall be void. The Employer shall not in any manner be liable for, or
subject to, the debts, contracts, liabilities, engagements or torts of any
person entitled to benefits hereunder.
6. Amendment and Termination.
Although it is intended that this Plan will be maintained indefinitely, the
Employer has the right, subject to the terms of any Policy, other contract or
plan text, to make any amendment to this Plan at any time and retains the right
to terminate this Plan at any time.
<PAGE>
7. Plan Year.
The Plan's fiscal year shall be the calendar year. A Policy, other contract or
plan text may have its own year that differs from the Plan year.
8. Governing Law
Subject to the terms of any Policy, other contract or plan text to the contrary,
to the extent not preempted by federal law, the Plan shall be interpreted and
enforced in accordance with the laws of the State of New York.
9. Effective Date.
The effective date of this Plan is January 1, 1996.
Dated December 4, 1995 THE RAYMOND CORPORATION
By /s/ Paul J. Sternberg
-------------------------------------
Title Vice President, General Counsel
and Secretary
---------------------------------
<PAGE>
EXHIBIT A
Name of Plan Exclusions
- ------------ ----------
Employee Spending Accounts - Type 1 Temporary
Health and Dependent Care Employees (hired for a term
expected to last more than
6 months)
Security Mutual Group Type 1 Temporary
Term Life Insurance Plan Employees
John Hancock Medical Type 1 Temporary
Employees
John Hancock Dental Type 1 Temporary
Employees
<PAGE>
THE RAYMOND CORPORATION AND SUBSIDIARIES
Exhibit 11: Statement Re: Computation of Per-Share Earnings
<TABLE>
<CAPTION>
Years ended December 31,
1995 1994 1993
------- ------- -------
(In thousands except per share data)
<S> <C> <C> <C>
Primary:
Average Shares Outstanding 6,835 6,652 6,641
Net effect of dilutive stock
options based on the treasury
stock method using average
market price 64 67 56
------- ------- -------
Total 6,899 6,719 6,697
======= ======= =======
Net Income $13,074 $ 9,727 $ 5,007
======= ======= =======
Per Share Amount $ 1.90(1) $ 1.45(1) $ 0.75
======= ======= =======
Fully Diluted:
Average Shares Outstanding 6,835 6,652 6,641
Net effect of dilutive stock
options based on the Treasury
Stock method using the period
end market price, if higher
than the average market price 69 74 61
Assumed conversion of 6.5%
convertible subordinated
debentures (59.27 shs./$1000) 3,264 3,408 159
------- ------- -------
Total Outstanding 10,168 10,134 6,861
======= ======= =======
Net Income: $13,074 $ 9,727 $ 5,007
Add 6.5% convertible subordinated
debenture interest, net of
federal tax effect: 2,333 2,467 115
------- ------- -------
Net Income $15,407 $12,194 $ 5,122
======= ======= =======
Per Share Amount $ 1.52 $ 1.20 $ 0.75
======= ======= =======
</TABLE>
- ----------
(1) Primary per share amounts of $1.91 for 1995 and $1.46 for 1994 reported in
the consolidated financial statements exclude the net effect of dilutive
stock options as the aggregate dilution from these securities was immaterial
(less than three percent of earnings per common share outstanding).
<PAGE>
Financial Highlights
1995 1994
---- ----
Annual Data
Total Revenues $285,383,014 $229,546,715
Net Income 13,073,935 9,727,271
Net Income Per Share (Primary) 1.91 1.46
Net Income Per Share (Fully Diluted) 1.52 1.20
Orders Received 258,908,988 243,654,325
Order Backlog 65,640,311 78,119,410
Year End Data
Total Assets 249,927,169 204,375,744
Manufacturing Working Capital 60,139,163 46,617,420
Manufacturing Current Ratio 2.8 to 1 2.5 to 1
Long-Term Obligations 84,547,500 70,545,500
Shareholders' Equity 101,334,238 80,999,715
Book Value per Common Share 14.31 12.16
Ratio of Long-Term Obligations
to Total Capital .45 to 1 .47 to 1
Number of Shareholders of Record 2,428 2,477
Number of Employees 1,507 1,498
Revenues per Employee 189,372 153,235
$300---------------------------------------------
--285.4
|
250-----------------------------------|--------
I --229.5 |
N | |
200-------------------|---------------|--------
--171.9 | |
M | | |
I 150-----|-------------|---------------|--------
L | | |
L | | |
I 100-----|-------------|---------------|--------
O | | |
N | | |
S 50-----|-------------|---------------|--------
| | |
| | |
0-----|-------------|---------------|--------
1993 1994 1995
Total Revenues
$14.0--------------------------------------------
--13.1
|
12.0-----------------------------------|--------
I |
N |
10.0-----------------------------------|--------
--9.7 |
M | |
I 8.0-------------------|---------------|--------
L | |
L | |
I 6.0-------------------|---------------|--------
O --5.0 | |
N | | |
S 4.0-----|-------------|---------------|--------
| | |
| | |
2.0-----|-------------|---------------|--------
| | |
| | |
0.0-----|-------------|---------------|--------
1993 1994 1995
Net Income
<PAGE>
Financial Summary: Current and Ten Year
The Raymond Corporation and Subsidiaries
<TABLE>
<CAPTION>
(Dollars in thousands, except per share data)
Years ended December 31, 1995 1994 1993 1992 1991 1990
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Summary of Operations
Net sales, leasing and rental revenues ...... $ 282,570 $ 226,727 $ 169,489 $ 146,662 $ 138,824 $ 145,525
Other income ................................ 2,813 2,820 2,460 2,071 1,871 1,823
-----------------------------------------------------------------------------
Total revenues .............................. 285,383 229,547 171,949 148,733 140,695 147,348
-----------------------------------------------------------------------------
Cost of sales and rentals ................... 213,175 170,831 127,911 109,716 109,180 109,953
Expenses .................................... 44,722 36,621 31,282 27,586 28,725 28,930
Interest expense:
Lease financing .......................... 2,950 2,192 3,044 3,391 3,590 3,792
Other .................................... 3,721 3,950 1,765 1,567 2,032 2,151
-----------------------------------------------------------------------------
Total costs and expenses .................... 264,568 213,594 164,002 142,260 143,527 144,826
-----------------------------------------------------------------------------
20,815 15,953 7,947 6,473 (2,832) 2,522
Income tax expense (benefit) ................ 8,088 6,428 3,202 2,664 (930) 1,092
-----------------------------------------------------------------------------
Income (loss) before equity in earnings of
unconsolidated investees ................. 12,727 9,525 4,745 3,809 (1,902) 1,430
Net equity earnings _ unconsolidated
investees ................................ 347 202 262 152 377 503
-----------------------------------------------------------------------------
Income (loss) from continuing operations .... 13,074 9,727 5,007 3,961 (1,525) 1,933
Income (loss) from discontinued operations .. _ _ _ _ _ _
-----------------------------------------------------------------------------
Net income (loss) ........................... $ 13,074 $ 9,727 $ 5,007 $ 3,961 $ (1,525) $ 1,933
=============================================================================
- -------------------------------------------------------------------------------------------------------------------------------
Statistical Information*
Per common share:
Income from continuing operations
(Primary) ............................... $ 1.91 $ 1.46 $ .75 $ .60 $ (.23) $ .29
Net income (Primary) ..................... 1.91 1.46 .75 .60 (.23) .29
Cash dividends ........................... _ _ _ _ _ _
Book value ............................... 14.31 12.16 10.99 10.48 10.28 10.50
Weighted average number of shares
outstanding .............................. 6,835,107 6,651,732 6,640,879 6,626,760 6,625,125 6,624,949
Cash dividends .............................. $ _ $ _ $ _ $ _ $ _ $ _
Order backlog ............................... 65,640 78,119 52,297 31,919 31,430 29,673
Net income from continuing operations as % of
total revenues ........................... 4.6 4.2 2.9 2.7 (1.1) 1.3
Net income as % of average shareholders'
equity ................................... 14.3 12.6 7.0 5.8 (2.2) 2.8
- -------------------------------------------------------------------------------------------------------------------------------
Financial Position
Working capital ............................. $ 73,801 $ 58,498 $ 82,917 $ 49,000 $ 31,259 $ 30,535
Total assets ................................ 249,927 204,376 190,749 153,844 152,443 153,008
Long-term obligations ....................... 84,548 70,546 81,510 47,876 39,128 35,571
Shareholders' equity ........................ 101,334 81,000 73,053 69,447 68,099 69,530
</TABLE>
*Restated for the 1995 5% stock dividend.
<PAGE>
<TABLE>
<CAPTION>
(Dollars in thousands, except per share data)
Years ended December 31, 1989 1988 1987 1986 1985
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Summary of Operations
Net sales, leasing and rental revenues ...... $ 163,541 $ 151,920 $ 126,011 $ 124,929 $ 115,242
Other income ................................ 1,770 1,191 838 1,605 1,604
----------------------------------------------------------------
Total revenues .............................. 165,311 153,111 126,849 126,534 116,846
----------------------------------------------------------------
Cost of sales and rentals ................... 130,752 121,224 97,180 92,594 77,530
Expenses .................................... 29,890 26,575 25,018 22,510 23,293
Interest expense:
Lease financing .......................... 3,502 3,607 3,431 2,489 2,939
Other .................................... 2,651 1,400 411 703 628
----------------------------------------------------------------
Total costs and expenses .................... 166,795 152,806 126,040 118,296 104,390
----------------------------------------------------------------
(1,484) 305 809 8,238 12,456
Income tax expense (benefit) ................ (506) (181) (624) 3,201 4,779
----------------------------------------------------------------
Income (loss) before equity in earnings of
unconsolidated investees ................. (978) 486 1,433 5,037 7,677
Net equity earnings _ unconsolidated
investees ................................ 1,374 943 930 973 556
----------------------------------------------------------------
Income (loss) from continuing operations .... 396 1,429 2,363 6,010 8,233
Income (loss) from discontinued operations .. (1,616) 282 261 217 (455)
----------------------------------------------------------------
Net income (loss) ........................... $ (1,220) $ 1,711 $ 2,624 $ 6,227 $ 7,778
================================================================
- ------------------------------------------------------------------------------------------------------------------
Statistical Information*
Per common share:
Income from continuing operations
(Primary) ............................... $ .06 $ .22 $ .36 $ .91 $ 1.26
Net income (Primary) ..................... (.18) .26 .40 .95 1.19
Cash dividends ........................... .31 .43 .43 .43 .43
Book value ............................... 10.20 10.57 10.55 10.46 10.05
Weighted average number of shares
outstanding .............................. 6,621,681 6,608,614 6,601,418 6,578,772 6,513,931
Cash dividends .............................. $ 2,117 $ 2,821 $ 2,815 $ 2,796 $ 2,760
Order backlog ............................... 38,442 46,427 42,655 33,157 40,050
Net income from continuing operations as % of
total revenues ........................... .2 .9 1.9 4.7 7.0
Net income as % of average shareholders'
equity ................................... (1.8) 2.5 3.8 9.3 12.3
- ------------------------------------------------------------------------------------------------------------------
Financial Position
Working capital ............................. $ 27,412 $ 41,268 $ 53,807 $ 46,107 $ 45,006
Total assets ................................ 156,672 169,476 156,684 128,129 130,085
Long-term obligations ....................... 31,913 36,428 39,943 24,462 30,969
Shareholders' equity ........................ 67,544 69,803 69,616 68,828 65,471
</TABLE>
<PAGE>
Management's Discussion and Analysis of
Financial Condition and Results of Operations
The Raymond Corporation and Subsidiaries
Overview
The Company operates predominantly in one business segment, that being the
design, manufacture, sale, leasing and short-term rental of materials handling
equipment. Revenues are realized primarily from distribution of the Raymond(R)
and Dockstocker(TM) product lines through the Company's Dealer Network which is
principally located in North America. In addition, the Company has expanded in
both the domestic and international markets with minimal capital investment
through distribution and Original Equipment Manufacturer ("O.E.M.") supply
agreements. Raymond has Dealers in Central and South America, Australia and
Singapore. O.E.M. agreements are in place with Mitsubishi Caterpillar Forklift
America Inc. and Toyota Industrial Equipment for distribution in North America
and Jungheinrich A.G. and B.T. Industries AB for distribution in Europe.
Lease financing and short-term rental operations are conducted through Raymond
Leasing Corporation, a wholly-owned subsidiary. The assets and liabilities
pertaining to these operations are classified under the caption Financial
Services in the consolidated balance sheets.
The major components of the Company's international operations are Raymond
Industrial Equipment, Ltd., a wholly-owned Canadian manufacturing subsidiary,
and G.N. Johnston Equipment Co. Ltd. ("Johnston"), the exclusive Canadian
distributor that is 46% owned by R.H.E. Ltd., a wholly-owned subsidiary of the
Company. Foreign exchange exposure on international operations is limited
primarily to the Canadian dollar and is minimized through the purchase of
foreign currency exchange contracts. The impact on the financial statements of
the settlement of these foreign currency exchange contracts has not been
material for the three years ending December 31, 1995.
Products produced at the U.S. and Canadian manufacturing facilities are
determined by model type; the U.S. facility produces a wide variety of products,
including some custom-made materials handling equipment, while the Canadian
facility specializes in high volume models that require minimal customization.
<PAGE>
The major revenue categories are shown below:
Percentage of Total Revenues 1995 1994 1993
- --------------------------------------------------------------------
Narrow and very narrow
aisle applications 60% 57% 53%
All other applications 18% 20% 22%
Repair and replacement parts 16% 17% 18%
Leasing and rentals 5% 5% 6%
Other income 1% 1% 1%
Net Sales
In 1995, net sales were a record $271.4 million, an increase of approximately
$53.6 million or 24.6% from the previous record set in 1994. Net sales in 1994
were $217.8 million, up approximately $56.5 million or 35.1% from the 1993 level
of $161.3 million.
The substantial growth in net sales in 1995 reflects a continuation of trends
noted throughout 1994, including the Company's success in expanding its
distribution to serve new and different markets. The Company's shipments to its
Dealer Network increased as a result of the record backlog (unfilled new
equipment orders) at the start of 1995 and the continued success of its new
products with the intellidrive(R) controls technology and increased sales
efforts at the Dealership level. The successful launch of the new Dockstocker
product line of electric, stand-up counterbalanced lift trucks contributed to
the sales growth. This line of products is designed for work in loading and
shipping dock areas, a market segment not specifically targeted by the Company
previously. Other significant increases were attained through sales to Material
Handling Associates, Inc. ("M.H.A.") and the Company's other O.E.M. customers.
M.H.A. is the Company's 50% owned joint venture company with Mitsubishi
Caterpillar Forklift America Inc. which distributes equipment manufactured by
Raymond through the Caterpillar distribution network. The increased volume of
repair and replacement parts sales also contributed to the growth in 1995.
The increase in net sales in 1994 resulted primarily from increased unit sales
through the Company's various distribution channels described above.
Additionally, a significant increase was achieved through the Company's National
Accounts Program. The National Accounts Program, working in conjunction with the
Dealer Network, offers certain large customers single source coordination of
their materials handling equipment and service needs.
<PAGE>
Rental Revenues
Rental revenues recognized by Raymond Leasing Corporation were $1.8, $1.9 and
$1.6 million in 1995, 1994 and 1993, respectively. The increase in rental
revenues in 1994 was the result of improved rental fleet utilization due to
increased demand.
Lease Finance Revenues
Lease finance revenues increased approximately $2.4 million or 32.9% to $9.4
million in 1995. In 1994, lease finance revenues increased by $0.3 million to
$7.0 million as compared to the $6.7 million recognized in 1993. The increased
revenues in the current year primarily reflect the record level of leases booked
in 1995 which corresponds to the record sales level attained by The Raymond
Corporation. The net lease portfolio increased approximately $21.7 million in
1995 to a record level of $106.4 million.
Other Income
Other income was $2.8 million in both 1995 and 1994 and $2.5 million in 1993.
The primary components of other income during these years were interest income,
foreign currency exchange gains, cash discounts taken and license and royalty
fees. Increased interest income was earned in 1994 on the remaining proceeds of
the $57.5 million of 6 1/2% convertible subordinated debentures issued in
December 1993.
Cost of Sales
Cost of sales as a percentage of net sales was 77.9%, 77.6% and 78.2% in 1995,
1994 and 1993, respectively.
In 1995, the Company maintained a stable cost of sales percentage. Efforts to
continue to reduce manufacturing costs through research and development
activities and improved manufacturing processes were temporarily offset by
additional costs incurred in connection with the installation of new
manufacturing equipment at the Greene, New York facility.
The decrease in cost of sales as a percentage of net sales in 1994 was favorably
impacted by reduced expenditures for warranty as a result of more products
incorporating the reliable intellidrive(R) technology and reduced products
liability costs.
<PAGE>
Cost of Rentals
Cost of rentals, which consist primarily of depreciation and maintenance, was
$1.7 million in 1995 and $1.8 million in both 1994 and 1993. Raymond Leasing
Corporation has been able to utilize the increased demand for used equipment as
a means to maintain rental fleet equipment at a reasonable level.
Selling, General and Administrative Expenses
Selling, general and administrative expenses of $34.7, $28.5 and $26.0 million
were 12.2%, 12.4% and 15.1% of total revenues in 1995, 1994 and 1993,
respectively. The dollar level increase in 1995 reflects expenses incurred to
support the growth in sales volume including costs to launch the Dockstocker(TM)
product line and costs for the Company's biannual International Sales Meeting.
There were increases in engineering expenditures and compensation and benefit
expenses including costs associated with stock appreciation rights. Also,
increased costs have been incurred in connection with an upgrade of the
Company's computer systems. The Company's efforts to contain costs and
appropriately focus its resources have enabled it to continue to reduce selling,
general and administrative costs as a percentage of total revenues.
The dollar level increase in 1994 resulted primarily from supporting the
increased sales volume, including increased marketing costs associated with
Raymond's continued new product introductions, and increased benefit accruals.
Interest Expense
Interest expense related to lease financing is reported net of charges on
intercompany borrowings. Lease finance interest expense of $3.0, $2.2 and $3.0
million represented 31.5%, 31.1% and 45.7% of lease finance revenues in 1995,
1994 and 1993, respectively. The increase in interest expense in 1995 reflects
the additional external borrowings incurred to finance the growth of the lease
portfolio. It is expected that lease financing interest expense will continue to
fluctuate with the volume of outstanding leases.
The significant decrease in 1994 reflects the fact that the growth in the lease
portfolio was financed with funds from The Raymond Corporation, utilizing a
portion of the remaining proceeds from the convertible subordinated debentures
issued in December 1993, as opposed to external borrowings.
<PAGE>
Other interest expense incurred by the manufacturing divisions was $3.7, $4.0
and $1.8 million in 1995, 1994 and 1993, respectively. The current year decrease
is the result of the conversion of $6.2 million of convertible subordinated
debentures in the third quarter of 1995. The increase in 1994 reflects the
borrowings attributable to the issuance of the convertible subordinated
debentures in December 1993. The effect of the increased interest expense in
1994 was minimized by investment income earned on the remaining proceeds of the
debentures and reported in other income.
Other Expenses
Other expenses were $6.2, $5.2 and $4.0 million, or 2.2%, 2.3% and 2.3% of total
revenues in 1995, 1994 and 1993, respectively. The principal components of other
expenses are cash discounts paid to Dealers for the timely payments of invoices
and the provision for losses on accounts receivable and investment in leases.
The increased provisions for profit sharing reflect the increased profitability
of the Company. The formulas for computing the profit sharing provisions are
consistent for all periods presented.
Income Tax Expense
The provision for federal, state and foreign income taxes represented a combined
effective tax rate of 38.9% in 1995 and 40.3% in both 1994 and 1993. The tax
rates on foreign subsidiaries and state income taxes accounted for the majority
of the difference in the effective tax rate from the expected U.S. federal
statutory rate. Note L to the consolidated financial statements contains further
information concerning the provision for income taxes as well as the detail
components of the effective tax rate.
Valuation allowances have not been required for reported deferred tax assets and
the Company is not aware of any circumstances that would require cash payments
to significantly exceed income tax expense during the next three years.
Unconsolidated Investees
The Company's primary unconsolidated investee is Johnston. Johnston is the
exclusive Canadian distributor for all of the Company's products with sales and
service outlets in the principal business regions of the Dominion of Canada.
Other unconsolidated investees include several Dealerships located throughout
the United States, as well as M.H.A.
<PAGE>
The Company's net equity in earnings of unconsolidated investees has remained
relatively constant at $0.3, $0.2 and $0.3 million in 1995, 1994 and 1993,
respectively.
The Company considers its Dealer Network to be critical to the successful
distribution of its products and has therefore continued to provide investments
in, and financing to, certain Dealerships to accommodate ownership transitions
and enable them to invest in the salespeople, training and other resources
necessary to increase their market share and profitability. Net additional
advances and investments to unconsolidated investees have approximated $3.2
million in both 1995 and 1994. In 1995, the Company continued its strategy of
acquiring minority equity investments in Dealerships serving key geographic
areas.
Liquidity and Sources of Capital
In 1995, the Company used $10.3 million to fund operating activities, an
increase of approximately $3.0 million from 1994. The cash was primarily used to
fund the growth of the lease portfolio and the increase in other working capital
components necessary to support the higher sales volume. Net cash used for
investing activities increased approximately $3.3 million in 1995 compared to
1994 as additional capital expenditures were incurred in connection with the
accelerated capital expenditure program at the Greene, New York facility. The
1995 cash flows from financing activities reflect the proceeds of long-term debt
obtained by Raymond Leasing Corporation to fund a portion of the continued
growth of the lease portfolio and repay intercompany borrowings.
The Company used $7.3 million for operating activities in 1994, an increase of
approximately $5.8 million from the $1.5 million used in 1993. Cash and cash
equivalents available at the beginning of the year, as well as internally
generated cash in 1994, primarily from net income and changes in working capital
components, was used to fund the $21.4 million of additions to the lease
portfolio. Cash used for investing activities was $7.9 million in 1994 and
included $4.6 million of additions to property, plant and equipment and $3.3
million of investments in, and advances to, unconsolidated investees. Cash flows
from financing activities in 1994 reflected not only normal debt repayments but
an accelerated payment of $2.9 million to reduce interest costs.
The Company's manufacturing working capital was $60.1 million at December 31,
1995 and its ratio of manufacturing current assets to manufacturing current
liabilities was 2.8 to 1.0. Financial Services total external debt was 49.2% of
the net investment in leases at December 31, 1995.
<PAGE>
The Company's overall strong financial condition continued to improve throughout
1995. At December 31, 1995, the Company and its subsidiaries had unused lines of
credit of $39.3 million of which approximately $21.7 million may be converted
into long-term debt at the option of the Company and/or Raymond Leasing
Corporation. These credit facilities, along with internally generated resources,
will enable the Company to continue to fund its growth strategy including the
Greene factory modernization project and enable Raymond Leasing Corporation to
obtain the external funds necessary to fund the growth of the lease portfolio
and to repay intercompany borrowings with The Raymond Corporation as the
manufacturing divisions require additional funds.
Maintaining a sound and flexible financial structure through conservative
financial strategies continues to be a high priority for The Raymond
Corporation. In March 1995, the Board of Directors declared a 5% stock dividend
on the Company's common stock payable to shareholders of record as of March 31,
1995. All appropriate per share data and the weighted average shares outstanding
have been restated to reflect this dividend. The Company does not currently pay
a cash dividend on its common stock. Payment of cash dividends in the future
will depend on a variety of factors including the Company's earnings, cash flow,
financial resources and certain debt covenants.
As discussed in Note H to the consolidated financial statements, Raymond Leasing
Corporation is subject to certain debt agreements that limit cash dividends and
loans to the Company. These restrictions are not expected to affect the
Company's ability to meet its cash requirements. Management foresees no changes
in circumstances which would result in any material decrease or deficiency in
the Company's liquidity or sources of capital.
During the third quarter of 1995, approximately $6.2 million of the Company's
convertible subordinated debentures were converted into 369,868 shares of common
stock at the original stated conversion rate adjusted for stock dividends. The
Company's reported primary earnings per share of $1.91 for 1995 would have been
$1.88 had this conversion taken place as of January 1, 1995. The remainder of
the debentures are convertible at any time and may be redeemed by the Company
any time after December 15, 1996 at prices ranging from 103.5% of principal to
par depending on the redemption date. In the event the Company calls for early
redemption of the debentures, the bondholders will have the choice to receive
cash or to convert the debentures into common stock.
<PAGE>
Changing Price Levels
Although inflation has slowed in recent years, it still is a factor in our
economy and the Company continues to seek ways to minimize its impact. To the
extent permitted by competition in general, the Company attempts to recover
increased costs by increasing selling prices over time. However, the Company has
not realized any significant growth in revenues from increased unit selling
prices during the past three years except for the approximate 3 1/2% aggregate
unit price increase that was announced in December 1994. In addition, selling
price increases are implemented to recover cost increases with respect to repair
and replacement parts when appropriate and lease finance rates are adjusted to
reflect changes in market conditions and the Company's cost of funds. Cost
containment, technological improvements and improved manufacturing methods
continue to be emphasized as a means to improve product margins.
The Company uses the FIFO (first-in, first-out) method of accounting for its
inventories. Although management believes that the FIFO method is the method
that most appropriately matches revenues and expenses, the costs of products
sold reported in the financial statements under this method are historical costs
which are subject to inflationary distortion during times of rapidly increasing
prices.
The charges to operations for depreciation represent the allocation of
historical costs incurred over past years and are less than if they were based
on the current costs of productive capacity being consumed. Approximately 41% of
the Company's property, plant and equipment has been acquired over the past five
years. Assets acquired in prior years will, of course, be replaced at higher
costs. This will take place over many years. These new assets will result in
higher depreciation charges, but in many cases, due to technological
improvements, there will be operating cost savings as well. The Company
considers these matters in determining its pricing policies.
<PAGE>
Contingencies
The Company is currently defending approximately 70 products liability and
similar lawsuits involving industrial accidents. The number of outstanding
lawsuits has remained relatively constant over the past several years.
The Company views these actions as part of the ordinary course of its business.
Management believes that none of these lawsuits will individually have a
material adverse effect on the Company. Taken as a whole, the damages claimed
would, if awarded and upheld, have a material adverse effect on the Company but
actual costs of judgments, settlements and costs of defense have not had such an
effect to date. The actual costs of these actions, as well as the related
expenses of administration, litigation and insurance, have averaged
approximately 2% of total revenues over the last three years. The effect of
these lawsuits on future results of operations cannot be predicted because any
such effect depends on the operating results of future periods and the amount
and timing of the resolution of these proceedings. The Company has a policy of
aggressively defending products liability lawsuits, which generally take several
years to ultimately resolve. A combination of self-insured retention and
insurance is used to manage these risks and management believes that the
insurance coverage and reserves established for self-insured risks are adequate.
The Company's Dealers contribute to the funding of the Company's products
liability program and, in turn, the Company indemnifies the Dealers against
products liability expense and manages products liability claims.
The Company is also one of fourteen defendants in a private environmental
lawsuit pertaining to a potential site remediation. The plaintiffs have alleged
that scrap metal purchased from the Company was hazardous and/or was coated with
certain solvents and/or cutting oils. Plaintiffs have the burden of proving the
nature and extent of the Company's contribution to the site, as well as the
burden of proving what portion of the material delivered to the site was
"hazardous" as that term is defined in the environmental statutes. The Company
is aggressively defending the claim and does not believe it is likely to have a
material adverse effect on the Company.
In addition to the matters discussed above, the Company is subject to various
other legal proceedings, claims and liabilities which have arisen in the
ordinary course of business. In the opinion of management, the amount of
ultimate liability, if any, with respect to these actions will not materially
affect the financial results of operations or financial position of the Company.
<PAGE>
Outlook
Orders received in 1995 were a record $258.9 million, an increase of
approximately $15.2 million or 6.3% from the orders received in 1994. In 1994,
the previous record for orders received was established at $243.7 million, an
increase of approximately $62.1 million or 34.1% from the orders received in the
previous year.
At December 31, 1995, the Company's order backlog of $65.6 million provides a
solid foundation for the upcoming year, although it is down approximately $12.5
million or 16.0% from the record backlog level of $78.1 million established at
December 31, 1994.
The Company believes that the overall market will be good in 1996, though it may
not be as strong as the record levels attained in 1994 and 1995. The Company has
attempted to minimize the impact of a potentially flattening North American lift
truck market through various growth strategies. These strategies include
continued product development such as the new Dockstocker(TM) product line,
enhanced distribution through the Dealer Network, increased participation in
domestic and international markets through distribution and O.E.M. supply
agreements and improvements in the manufacturing processes.
The Company has implemented an accelerated capital expenditure program as part
of an estimated $12 million modernization plan at its Greene, New York facility
which encompasses production equipment, manufacturing processes and management
information systems. The program is expected to be completed by late 1996 and
approximately $6.9 million has been expended or committed as of December 31,
1995. The remaining expenditures will be funded by a combination of internally
generated resources and existing credit facilities. In addition, the Company
will receive assistance from New York State and local government agencies in the
form of grants for employee training, a sales tax exemption program and an
interest subsidy grant.
In August 1995, the Board of Directors appointed James J. Malvaso President and
Chief Operating Officer of the Company. This appointment will enable the Chief
Executive Officer, Ross K. Colquhoun, the time required to direct the Company's
key growth strategies. Mr. Colquhoun has also been named Chairman of the Board
of Directors. George G. Raymond, Jr., the previous Chairman, continues with the
Company as a consultant and Chairman of the Executive Committee of the Board of
Directors.
<PAGE>
Responsibility for Financial
Statements
Management has prepared the financial statements and other sections of this
Annual Report and is responsible for all information and representations
contained therein. The Raymond Corporation and subsidiaries maintain a system of
internal accounting control designed to provide reasonable assurance that
transactions are executed in accordance with management's authorization and are
recorded properly to permit the preparation of financial statements in
accordance with generally accepted accounting principles and that assets are
safeguarded.
The control environment is complimented by an internal audit program that
independently assesses the effectiveness of the internal controls and reports
its findings to management and the Audit Committee of the Board of Directors
throughout the year.
It is management's opinion that the system of internal accounting control of The
Raymond Corporation and subsidiaries provided reasonable assurance that the
above objectives were achieved during the year ended December 31, 1995.
The Audit Committee of the Board of Directors is composed entirely of directors
who are not employees of the Company. The Committee meets periodically to review
audit plans, financial reporting and related matters. The independent and
internal auditors have unrestricted access to the Committee with or without
management in attendance.
Greene, New York
February 9, 1996
/s/ William B. Lynn
- -------------------------
William B. Lynn
Executive Vice President and
Chief Financial Officer
/s/ James J. Malvaso
- -------------------------
James J. Malvaso
President and
Chief Operating Officer
/s/ Ross K. Colquhoun
- -------------------------
Ross K. Colquhoun
Chairman and
Chief Executive Officer
<PAGE>
Report of Ernst & Young LLP
Independent Auditors
To the Board of Directors and Shareholders
The Raymond Corporation
We have audited the accompanying consolidated balance sheets of The Raymond
Corporation and subsidiaries as of December 31, 1995, 1994, and 1993, and the
related consolidated statements of income, shareholders' equity, and cash flows
for each of the three years in the period ended December 31, 1995. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of The Raymond
Corporation and subsidiaries at December 31, 1995, 1994, and 1993, and the
consolidated results of their operations and their cash flows for each of the
three years in the period ended December 31, 1995, in conformity with generally
accepted accounting principles.
/s/ Ernst & Young LLP
Syracuse, New York
February 9, 1996
<PAGE>
Consolidated Balance Sheets
The Raymond Corporation and Subsidiaries
<TABLE>
<CAPTION>
December 31, 1995 1994 1993
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Assets
Manufacturing
Cash and cash equivalents $ 12,341,383 $ 5,351,161 $ 28,642,434
Accounts receivable:
Trade, net of allowances ($1,718,651 in 1995; $986,093 in
1994 and $658,573 in 1993) 17,621,830 20,777,505 15,331,213
Unconsolidated investees 18,727,995 12,132,856 10,783,692
Inventories 34,645,114 30,911,341 25,603,622
Recoverable income taxes 1,159,325 _ 131,129
Deferred income taxes* 5,434,967 3,764,243 4,019,935
Prepaid expenses and other current assets 4,326,925 4,656,816 4,812,483
------------------------------------------------
Total Manufacturing Current Assets 94,257,539 77,593,922 89,324,508
Investments in and advances to unconsolidated investees, at equity 19,165,362 16,666,728 14,211,982
Property, plant and equipment, at cost 54,179,355 46,896,174 43,598,993
Less accumulated depreciation 31,043,877 29,947,379 28,229,772
------------------------------------------------
Net property, plant and equipment 23,135,478 16,948,795 15,369,221
Other assets 4,226,451 5,775,276 5,502,334
------------------------------------------------
Total Manufacturing Assets 140,784,830 116,984,721 124,408,045
------------------------------------------------
Financial Services
Cash and cash equivalents 17,664 72,302 12,054
Investment in leases; net of unearned lease income;
net of allowances for doubtful contracts ($1,782,906 in 1995;
$1,228,788 in 1994 and $1,069,167 in 1993) 106,409,973 84,724,886 63,820,909
Property, plant and equipment, at cost 385,486 234,712 196,832
Less accumulated depreciation 193,086 162,654 147,770
------------------------------------------------
Net property, plant and equipment 192,400 72,058 49,062
Rental equipment, at cost 4,379,990 4,327,691 4,785,307
Less accumulated depreciation 2,145,390 2,004,464 2,547,980
------------------------------------------------
Net rental equipment 2,234,600 2,323,227 2,237,327
Other assets 287,702 198,550 221,305
------------------------------------------------
Total Financial Services Assets 109,142,339 87,391,023 66,340,657
------------------------------------------------
Total Assets $249,927,169 $204,375,744 $190,748,702
================================================
</TABLE>
*Includes Manufacturing and Financial Services
The accompanying notes are a part of the financial statements.
<PAGE>
<TABLE>
<CAPTION>
December 31, 1995 1994 1993
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Liabilities and Shareholders' Equity
Manufacturing
Accounts payable $ 13,656,877 $ 14,194,244 $ 8,879,845
Accrued liabilities 20,461,499 16,782,258 11,619,488
------------------------------------------
Total Manufacturing Current Liabilities 34,118,376 30,976,502 20,499,333
Long-term debt 51,260,000 57,500,000 57,500,000
Deferred income taxes* 3,982,867 4,184,235 4,236,268
Deferred compensation 2,920,974 2,140,912 1,578,123
Other liabilities 777,865 386,408 194,174
------------------------------------------
Total Manufacturing Liabilities 93,060,082 95,188,057 84,007,898
------------------------------------------
Financial Services
Accounts payable 79,275 767,205 57,409
Income taxes* 1,103,878 2,230,445 663,565
Accrued liabilities 1,954,196 1,037,822 850,617
Notes payable _ banks 41,537,500 6,437,500 4,687,500
Notes payable _ insurance companies 10,858,000 17,715,000 27,429,000
------------------------------------------
Total Financial Services Liabilities 55,532,849 28,187,972 33,688,091
------------------------------------------
Shareholders' Equity
Common stock, $1.50 par value: authorized 15,000,000 shares
(Issued 1995 - 7,100,444; 1994 - 6,364,221 and
1993 - 6,048,577) 10,650,666 9,546,332 9,072,866
Capital surplus 23,643,394 12,712,723 7,699,014
Retained earnings 69,945,200 62,566,473 58,213,804
Cumulative translation adjustments (2,596,653) (3,515,662) (1,620,658)
------------------------------------------
101,642,607 81,309,866 73,365,026
Less:
Treasury stock, at cost (Shares 1995 - 21,974; 1994 - 21,049
and 1993 - 20,186) 308,369 310,151 312,313
------------------------------------------
Total Shareholders' Equity 101,334,238 80,999,715 73,052,713
------------------------------------------
Commitments and contingencies (Note N)
Total Liabilities and Shareholders' Equity $249,927,169 $204,375,744 $190,748,702
==========================================
</TABLE>
*Includes Manufacturing and Financial Services
The accompanying notes are a part of the financial statements.
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Consolidated Statements of Income
The Raymond Corporation and Subsidiaries
Years ended December 31, 1995 1994 1993
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Revenues
Net sales $271,388,087 $217,831,647 $161,271,284
Rental revenues 1,830,847 1,857,128 1,553,468
Lease finance revenues 9,351,252 7,038,222 6,664,795
Other income 2,812,828 2,819,718 2,459,738
--------------------------------------------------
Total Revenues 285,383,014 229,546,715 171,949,285
--------------------------------------------------
Costs and Expenses
Cost of sales 211,523,419 169,071,126 126,133,017
Cost of rentals 1,651,046 1,759,701 1,778,263
Selling, general and administrative expenses 34,680,275 28,479,497 26,029,624
Employees' profit sharing 3,810,045 2,907,251 1,293,111
Interest expense:
Lease financing 2,950,221 2,191,684 3,043,764
Other 3,721,370 3,950,452 1,765,391
Other expenses 6,231,805 5,233,695 3,959,112
--------------------------------------------------
Total Costs and Expenses 264,568,181 213,593,406 164,002,282
--------------------------------------------------
Income before taxes and equity in earnings of
unconsolidated investees 20,814,833 15,953,309 7,947,003
Income tax expense 8,087,785 6,427,672 3,201,656
--------------------------------------------------
Income before equity in earnings of unconsolidated investees 12,727,048 9,525,637 4,745,347
Net equity in earnings of unconsolidated investees 346,887 201,634 261,466
--------------------------------------------------
Net Income $ 13,073,935 $ 9,727,271 $ 5,006,813
==================================================
Net Income Per Share:
Primary $ 1.91 $ 1.46 $ .75
==================================================
Fully Diluted $ 1.52 $ 1.20 $ .75
==================================================
</TABLE>
The accompanying notes are a part of the financial statements.
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Consolidated Statements of Shareholders' Equity
The Raymond Corporation and Subsidiaries
Years ended December 31, 1995, 1994 and 1993
Total
Common Capital Retained Currency Treasury Shareholders'
Stock Surplus Earnings Translation Stock Equity
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance December 31, 1992 $ 9,028,446 $ 7,721,560 $ 53,206,991 $ (432,469) $(77,201) $ 69,447,327
Net income 5,006,813 5,006,813
Issuance of 29,613 shares under
stock option plan 44,420 (34,052) 10,368
Treasury shares (2,015) issued 11,506 22,479 33,985
Treasury shares (15,265) acquired (257,591) (257,591)
Currency translation adjustments (1,188,189) (1,188,189)
- -----------------------------------------------------------------------------------------------------------------------------------
Balance December 31, 1993 9,072,866 7,699,014 58,213,804 (1,620,658) (312,313) 73,052,713
Net income 9,727,271 9,727,271
Issuance of 302,429 shares
for stock dividend 453,643 4,914,472 (5,374,602) (6,487)
Issuance of 13,215 shares under
stock option plan 19,823 98,672 118,495
Treasury shares (146) issued 565 2,162 2,727
Currency translation adjustments (1,895,004) (1,895,004)
- -----------------------------------------------------------------------------------------------------------------------------------
Balance December 31, 1994 9,546,332 12,712,723 62,566,473 (3,515,662) (310,151) 80,999,715
Net income 13,073,935 13,073,935
Issuance of 318,227 shares
for stock dividend 477,340 5,210,968 (5,695,208) (6,900)
Issuance of 369,868 shares for
redemption of convertible
debentures 554,802 5,685,198 6,240,000
Issuance of 48,128 shares under
stock option plan 72,192 33,723 105,915
Treasury shares (127) issued 782 1,782 2,564
Currency translation adjustments 919,009 919,009
- -----------------------------------------------------------------------------------------------------------------------------------
Balance December 31, 1995 $10,650,666 $23,643,394 $69,945,200 $(2,596,653) $(308,369) $101,334,238
===================================================================================================================================
</TABLE>
The accompanying notes are a part of the financial statements.
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Consolidated Statements of Cash Flows
The Raymond Corporation and Subsidiaries
Years ended December 31, 1995 1994 1993
- ----------------------------------------------------------------------------------------------------------------------------------
Cash Flows from Operating Activities
<S> <C> <C> <C>
Net income $13,073,935 $ 9,727,271 $ 5,006,813
Adjustments to reconcile net income to net cash
(used for) provided by operating activities:
Depreciation and amortization 4,561,770 4,007,881 4,299,298
Provision for losses on accounts receivable
and investment in leases 1,399,000 1,079,908 646,984
Earnings of unconsolidated investees, net of
dividends received (11,494) (93,665) 420,742
Foreign currency transaction losses (gains) 87,312 (607,762) (553,990)
Acquisition of rental equipment (1,421,194) (1,956,104) (1,622,984)
Gains on dispositions of rental equipment (732,967) (672,190) (431,732)
Proceeds from rental fleet sales 1,497,320 1,625,456 1,223,770
Losses on sales of property, plant and equipment 58,379 1,398 14,220
Deferred income taxes (1,951,794) 238,732 (1,043,452)
Other items, net 2,000,037 1,317,953 (1,249,311)
Changes in operating assets and liabilities:
Increase in accounts receivable (4,231,514) (7,476,834) (5,577,777)
Increase in investment in leases (22,264,087) (21,366,477) (2,259,268)
Increase in inventories and prepaid expenses (4,679,521) (6,258,217) (1,923,215)
Increase in accounts payable and accrued expenses 2,271,235 13,114,995 1,505,703
-----------------------------------------------------------
Net cash used for operating activities (10,343,583) (7,317,655) (1,544,199)
-----------------------------------------------------------
Cash Flows from Investing Activities
Additions to property, plant and equipment (8,011,503) (4,596,668) (3,256,949)
Proceeds received from sales of property, plant
and equipment 41,915 11,666 3,179,397
Investments in and advances to unconsolidated investees (3,168,965) (3,293,143) (6,197,830)
-----------------------------------------------------------
Net cash used for investing activities (11,138,553) (7,878,145) (6,275,382)
-----------------------------------------------------------
</TABLE>
The accompanying notes are a part of the financial statements.
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Years ended December 31, 1995 1994 1993
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash Flows from Financing Activities
Net additional (repayments) borrowings under
lines of credit (2,000,000) 3,000,000 (2,000,000)
Proceeds from long-term debt 41,000,000 __ 83,500,000
Repayment of long-term debt (10,757,000) (10,964,000) (49,580,318)
Cash dividends paid __ __ __
Capital stock transactions, net 101,579 121,222 (213,238)
-----------------------------------------------------------
Net cash provided by (used for) financing activities 28,344,579 (7,842,778) 31,706,444
-----------------------------------------------------------
Effect of foreign currency rate fluctuations on cash
and cash equivalents 73,141 (192,447) (198,120)
-----------------------------------------------------------
Increase (Decrease) in cash and cash equivalents 6,935,584 (23,231,025) 23,688,743
Cash and cash equivalents at January 1, 5,423,463 28,654,488 4,965,745
-----------------------------------------------------------
Cash and cash equivalents at December 31, $12,359,047 $ 5,423,463 $28,654,488
===========================================================
Cash and cash equivalents is comprised of:
Manufacturing $12,341,383 $ 5,351,161 $28,642,434
Financial Services 17,664 72,302 12,054
-----------------------------------------------------------
$12,359,047 $ 5,423,463 $28,654,488
===========================================================
1995 1994 1993
- ----------------------------------------------------------------------------------------------------------------------------------
Supplemental disclosure of cash flow information:
Cash paid during the year for:
Income taxes, net of refunds $11,000,603 $ 5,332,402 $ 5,095,707
Interest 6,693,912 6,570,979 4,604,088
Noncash activities:
Property acquired in exchange for retirement
of mortgage receivable $ 1,500,000 __ __
Common stock issued for conversion
of debentures 6,240,000 __ __
</TABLE>
The accompanying notes are a part of the financial statements.
<PAGE>
- --------------------------------------------------------------------------------
Notes to Financial Statements
The Raymond Corporation and Subsidiaries
Years ended December 31, 1995, 1994 and 1993
- --------------------------------------------------------------------------------
A. Significant Accounting Policies
(1) Organization: The Company designs and manufactures materials handling
equipment. Manufacturing facilities are located in the U.S. and Canada and
revenues are realized primarily from distribution of the Raymond(R) and
Dockstocker(TM) product lines through the Company's Dealer Network which is
predominantly located in North America. In addition, the Company produces
materials handling equipment under Original Equipment Manufacturer (O. E. M.)
agreements for distribution by other companies in both North America and Europe.
(2) Principles of Consolidation: The consolidated financial statements include
the accounts of the Company and its domestic and foreign subsidiaries after
elimination of all significant intercompany accounts and activity.
Unconsolidated investees are stated at cost plus equity in unremitted earnings
since acquisition. The Company's share of earnings of unconsolidated investees
is included in consolidated income using the equity method.
The accounts of foreign operations have been translated to U.S. dollars in
conformity with Statement of Financial Accounting Standards No. 52, "Foreign
Currency Translation." Exchange gains and losses arising from transactions are
included in current income. Exchange losses were approximately $0.1 million in
1995 and exchange gains were approximately $0.6 million in 1994 and 1993.
Earnings of consolidated foreign companies were $9.0, $7.1 and $4.0 million in
1995, 1994 and 1993, respectively.
(3) Use of Estimates: The preparation of the financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from those
estimates.
(4) Cash Equivalents: The Company considers all highly liquid investments with a
maturity of three months or less when purchased to be cash equivalents. These
amounts were $4.5, $3.8 and $28.2 million at December 31, 1995, 1994 and 1993,
respectively.
(5) Foreign Currency Exchange Agreements: In the normal course of business,
R.H.E. Ltd., a wholly-owned Canadian subsidiary, enters into foreign currency
exchange contracts to provide economic hedges against foreign currency
fluctuations on its intercompany transactions and future inventory purchases. At
December 31, 1995, R.H.E. Ltd. had forward contracts for $13.5 million which
mature in increments ranging from approximately $0.8 to $2.5 million on a
monthly basis through June 1996.
(6) Inventories: Inventories are stated principally at the lower of cost (FIFO -
first-in, first-out method) or market.
(7) Property and Depreciation: Rental equipment, property, plant and equipment
are stated at cost. Depreciation is computed primarily on the straight line and
declining balance methods for financial reporting and accelerated methods for
income tax purposes.
<PAGE>
(8) Income Taxes: The Company uses the liability method of accounting for income
taxes in accordance with Statement of Financial Accounting Standards No. 109,
"Accounting for Income Taxes." The Company considers the undistributed earnings
of its foreign subsidiaries at December 31, 1995 to be indefinitely reinvested.
(9) Revenue Recognition and Related Costs: Revenues from product sales are
recognized based upon deliveries. Lease finance revenues are recognized on fixed
rate, long-term leases on a declining basis over the life of the lease(interest
method). Revenues on variable rate leases are recognized based upon the
principal amounts outstanding. Financial Services interest expense is reported
net of charges on intercompany borrowings. Short-term rentals are recognized as
revenues over the term of the contract. Related costs consist primarily of
depreciation and maintenance.
Net sales include sales to unconsolidated investees of $131.1, $89.8 and $68.6
million in 1995, 1994 and 1993, respectively.
(10) Concentration of Credit Risk: The Company's sales are primarily made to its
Dealers in North America who subsequently sell the equipment to customers in
diversified industries in many geographic areas. It is the Company's policy to
have a formal agreement in effect for each Dealer which requires a purchase
money security agreement. The Company performs ongoing credit evaluations of its
Dealers' financial condition.
The investment in leases primarily represents receivables from customers (end
users) of the Company's products. These leases are collateralized by the
equipment. Credit evaluations are performed prior to the approval of a lease
contract. Subsequently, the financial condition of the customer and the value of
the collateral are monitored on an ongoing basis. At December 31, 1995, lease
receivables from one customer represented approximately 18% of the total
investment in leases.
Reserves for potential credit losses on accounts and lease receivables are
maintained and such losses have been within management's expectations.
(11) Product Warranties: Estimated product warranty costs are accrued at the
time of revenue recognition.
(12) Insurance Accruals: The Company uses a combination of self-insured
retention and insurance coverage for products liability, workers' compensation
and certain health insurance plans in the U.S.
(13) Stock Based Compensation: The Company accounts for stock option grants in
accordance with Accounting Principles Board Opinion No. 25, "Accounting for
Stock Issued to Employees," and intends to continue to do so. Accordingly, no
compensation expense is recognized for stock option grants other than the
amounts accrued in connection with the stock appreciation rights associated with
these grants.
(14) Research and Development Costs: Research and development costs are charged
to expense as incurred and amounted to $3.6 million in 1995; $4.0 million in
1994 and $4.3 million in 1993.
(15) Stock Dividend: On March 4, 1995, the Board of Directors declared a 5%
stock dividend on the Company's common stock payable to shareholders of record
as of March 31, 1995. All appropriate per share data and weighted average shares
outstanding have been restated to reflect this dividend.
(16) Per Share Amounts: Primary net income per share is computed by dividing net
income by the weighted average number of shares outstanding (1995 - 6,835,107;
1994 - 6,651,732; and 1993 - 6,640,879). Dilution that could result from the
assumed exercise of stock options is not material. Reported primary net income
per share for 1995 of $1.91 would have been $1.88 if the $6.2 million conversion
of debentures had occurred as of January 1, 1995. Fully diluted net income per
share is computed by dividing net income plus after tax interest incurred on the
convertible debentures by the weighted average number of common shares
outstanding after giving effect to dilutive stock options and shares assumed to
be issued on conversion of the convertible debentures (1995 - 10,167,551 and
1994 - 10,133,559). Reported primary and fully diluted net income per share are
the same for 1993 as dilution from the assumed conversion of the convertible
debentures issued on December 15, 1993 and the exercise of stock options was not
material.
<PAGE>
- --------------------------------------------------------------------------------
B. Inventories
The composition of inventories at December 31 was:
(in Thousands) 1995 1994 1993
- -------------- ---- ---- ----
Materials $ 18,095 $ 15,804 $ 14,805
Work-in-process 14,804 13,407 10,011
Finished goods 1,746 1,700 788
-------------------------------------------------
$ 34,645 $ 30,911 $ 25,604
=================================================
Amounts in 1994 and 1993 have been reclassified to conform to the 1995
presentation.
- --------------------------------------------------------------------------------
C. Unconsolidated Investees
Investments in and advances to unconsolidated investees at equity are summarized
as follows at December 31:
(in Thousands) 1995 1994 1993
- -------------- ---- ---- ----
G.N. Johnston Equipment Co. Ltd.
(A Canadian distributor 46% owned by R.H.E. Ltd.):
Investment* $ 5,301 $ 4,661 $ 4,597
Advances 2,879 3,110 680
-------------------------------------------------
8,180 7,771 5,277
Other unconsolidated investees (U.S. Dealers) at
various percentages of ownership:
Investments* 5,650 3,911 4,095
Advances 5,335 4,985 4,840
-------------------------------------------------
10,985 8,896 8,935
-------------------------------------------------
$19,165 $16,667 $14,212
=================================================
*Investments are stated at cost, plus equity in subsequent earnings, net of
dividends.
At December 31, 1995, consolidated retained earnings included $5.5 million of
undistributed earnings of the Company's unconsolidated investees.
Fifty-four percent of the common shares of G.N. Johnston Equipment Co. Ltd. and
various percentages of the other unconsolidated investees are controlled by
their management. Upon death or termination of employment, Raymond has agreed to
cause the purchase of management's shares based upon a predetermined valuation
method. These agreements further provide, under specified conditions, that any
of the shares held by Raymond may be purchased by management at a price which
will return to Raymond its investment.
The unconsolidated investees also include Material Handling Associates, Inc.
("M.H.A."), a 50% owned joint venture company that was formed in 1991 with
Caterpillar Industrial Inc., predecessor of Mitsubishi Caterpillar Forklift
America Inc. The Company's minimal financial investment in this joint venture
has no carrying value as a result of the initial costs incurred by M.H.A. to
develop and market its products. Certain officers of the Company are also
officers of M.H.A.
<PAGE>
The following is summarized financial information for the unconsolidated
investees:
(in Thousands) 1995 1994 1993
- -------------- ---- ---- ----
Revenues $302,852 $225,175 $173,300
Gross margin 75,667 41,901 36,026
Net income 2,834 1,634 152
Current assets 80,188 55,215 47,114
Noncurrent assets 30,308 24,304 20,855
Current liabilities 60,983 39,373 36,865
Noncurrent liabilities 25,849 22,897 14,875
The following presents summarized information of Raymond Leasing Corporation
that is contained in the Company's consolidated financial statements to conform
with the provisions of Statement of Financial Accounting Standards No. 94,
"Consolidation of All Majority Owned Subsidiaries":
(in Thousands) 1995 1994 1993
- -------------- ---- ---- ----
Revenues $ 12,718 $ 10,583 $ 9,551
Gross margin 5,562 4,602 3,736
Net income 2,397 1,956 1,522
Total assets 109,243 87,510 66,354
Total liabilities 78,717 59,380 40,181
- --------------------------------------------------------------------------------
D. Property, Plant and Equipment
The composition of property, plant and equipment for Manufacturing and Financial
Services at December 31 was:
(in Thousands) 1995 1994 1993
- -------------- ---- ---- ----
Land $ 609 $ 323 $ 318
Buildings and
improvements 17,839 15,982 15,494
Machinery, equipment
and tools 28,580 23,332 21,183
Furniture and fixtures 7,537 7,494 6,801
-------------------------------------------------
$ 54,565 $ 47,131 $ 43,796
=================================================
- -------------------------------------------------------------------------------
E. Net Investment in Leases
The Raymond Leasing Corporation leases Raymond(R) and Dockstocker(TM) equipment
to customers and its Dealers, including equity investees, under arrangements
covering three to seven years. The net investment in direct financing leases
represents the present value of future minimum lease payments and the residual
value of the equipment of $25.5, $19.4 and $15.4 million at December 31, 1995,
1994 and 1993, respectively. Unearned lease income on fixed rate leases totaled
$18.2, $14.2 and $10.0 million at December 31, 1995, 1994 and 1993,
respectively.
<PAGE>
At December 31, 1995 future minimum lease payments to be received are as
follows:
(in Thousands)
- --------------------------------------------------------------------------------
1996 $41,060
1997 26,200
1998 18,752
1999 11,742
2000 979
Thereafter 336
--------
Total future minimum lease payments 99,069
Residual values 25,539
--------
124,608
Less unearned income 18,198
--------
$106,410
========
- --------------------------------------------------------------------------------
F. Fair Value of Financial Instruments
The carrying amounts and fair value of significant financial instruments at
December 31 were as follows:
(in Thousands)
- --------------------------------------------------------------------------------
1995 Carrying Amount Fair Value
- ---- --------------- ----------
Investment in leases $106,410 $104,706
Manufacturing debt 51,260 70,995
Financial Services debt 52,396 53,967
1994
- ----
Investment in leases $ 84,725 $ 82,737
Manufacturing debt 57,500 64,400
Financial Services debt 24,153 24,276
1993
- ----
Investment in leases $ 63,821 $ 63,614
Manufacturing debt 57,500 58,938
Financial Services debt 32,117 33,452
The carrying value of cash and cash equivalents approximates fair value because
of the short-term maturities of these instruments.
The carrying value of advances to unconsolidated investees approximates fair
value.
The fair value of the investment in leases is estimated by discounting future
cash flows, using current interest rates at which similar leases would be
entered into with borrowers with similar credit ratings and maturities.
The fair value of the Company's Manufacturing debt is estimated based on the
quoted market price.
The fair value of Financial Services debt is estimated using discounted cash
flow analyses, based on current rates offered to the Company for similar types
of borrowing arrangements.
The fair value of foreign currency exchange agreements is not significant due to
their short-term maturities and the fact that the outstanding agreements were
purchased near year-end.
<PAGE>
- --------------------------------------------------------------------------------
G. Stock Options
The shareholders of the Company have approved stock option plans for officers,
directors and key employees. At December 31, 1995, there are 315,750 unoptioned
shares available under these plans. The exercise price of options granted is
equal to the fair market value of the common stock on the date of grant, except
for greater than 5% shareholder officers whose exercise price is 110% of the
fair market value on the date of grant, and options expire ten years from the
date of the grant.
The status of these plans at December 31 was as follows (the stock option data
for 1994 and 1993 has been restated to reflect the effects of the 1995 5% stock
dividend):
Outstanding Options
Options Price Range Exercisable
- --------------------------------------------------------------------------------
1995 322,356 $ 7.65 - $19.27 246,038
1994 415,249 7.65 - 19.27 336,032
1993 355,640 7.65 - 19.27 270,902
Options exercised in these plans are summarized as follows:
Options
Exercised Price Range
- ----------------------------------------------------
1995 168,991 $ 7.65 - $18.48
1994 19,614 7.65 - 15.64
1993 140,279 7.65 - 15.84
Stock options issued to officers and key employees are subject to stock
appreciation rights covering up to one-half the number of optioned shares.
Options outstanding subject to stock appreciation rights at December 31 were:
1995 - 277,419; 1994 - 359,879 and 1993 - 301,879. The exercise of stock
appreciation rights by an optionee is in lieu of exercising the option to
purchase and will result in a reduction of an equivalent number of optioned
shares.
Stock appreciation rights provide for cash payment equal to the appreciation in
value of the shares under option from the date the option was granted.
- --------------------------------------------------------------------------------
H. Debt and Lease Obligations
<TABLE>
<CAPTION>
(in Thousands) 1995 1994 1993
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Manufacturing Debt
Subordinated Debt
6.50% convertible debentures due December 15, 2003. Interest is
payable semi-annually $51,260 $57,500 $57,500
=======================================
Financial Services Debt
Short-term borrowings under lines of credit at variable interest rates
(6.75% in 1995 and 7.00% in 1994) $ 1,000 $ 3,000 $ _
6.35% note, principal is payable in quarterly installments of approximately
$0.3 million through July 1, 1997. Interest is payable quarterly 2,188 3,438 4,688
8.75% note, remaining principal is payable on March 1, 1996 2,858 5,715 11,429
8.86% note, principal is payable in annual installments of $4.0 million
through November 27, 1997. Interest is payable semi-annually 8,000 12,000 16,000
Various notes executed under revolving and term loan agreements with
maturities ranging from December 31, 1999 through December 31, 2000.
Aggregate quarterly principal payments of approximately $2.1 million are
required through December 31, 1999 when the first notes mature. Interest is
payable quarterly at rates ranging from 6.40% to 8.40% 38,350 _ _
---------------------------------------
Total Financial Services Debt $52,396 $24,153 $32,117
=======================================
</TABLE>
<PAGE>
Annual repayments of debt obligations are as follows:
Manufacturing Financial
(in Thousands) Debt Services Debt
- --------------------------------------------------------------------------------
1996 $ _ $19,108
1997 _ 13,138
1998 _ 8,200
1999 _ 8,200
2000 _ 3,750
Thereafter 51,260 _
------------------------------
Total $51,260 $52,396
==============================
The 6.50% convertible subordinated debentures are convertible into shares of
common stock at a rate adjusted for stock dividends of approximately 59.27
shares for each $1,000 principal amount of debentures. The Company has reserved
approximately 3.0 million shares of common stock for such conversion. These
debentures are redeemable at prices ranging from 103.50% of principal to par
depending upon the redemption date. The debentures are convertible at any time
prior to maturity and are redeemable any time on or after December 15, 1996, in
whole or in part, at the option of the Company. In the third quarter of 1995,
$6.2 million of the Company's convertible subordinated debentures were converted
into 369,868 shares of common stock at the original stated conversion rate
adjusted for stock dividends.
Terms of certain notes provide, among other things, that Raymond Leasing
Corporation, a wholly-owned subsidiary, must maintain a minimum working capital
and a specified working capital ratio, and is subject to certain debt agreements
that limit cash dividends and loans to the Company. At December 31, 1995, the
restricted retained earnings of Raymond Leasing Corporation were approximately
$25.3 million.
The Company and its subsidiaries had unused lines of credit totaling
approximately $39.3 million at December 31, 1995 of which approximately $21.7
million may be converted into long-term debt. No significant commitment fees are
paid for these lines.
Rent expense under operating leases amounted to approximately $2.1, $1.6 and
$1.7 million in 1995, 1994 and 1993, respectively. At December 31, 1995, the
Company was obligated for future minimum lease payments under noncancelable
operating leases for certain equipment as follows:
(in Thousands)
- --------------------------------------------------------------------------------
1996 $ 953
1997 744
1998 535
1999 8
Thereafter _
-------
$ 2,240
=======
<PAGE>
- --------------------------------------------------------------------------------
I. Retirement and Benefit Plans
The Company has noncontributory group trusteed retirement plans covering
substantially all of its employees. The benefits are based on years of service
and/or compensation. The Company's funding policy is to contribute annually the
maximum amount that can be deducted for federal income tax purposes.
Contributions are intended to provide not only for benefits attributed to
service to date, but also for those expected to be earned in the future. The
following table sets forth the plans' funded status and amounts recognized in
the Company's consolidated balance sheets at December 31:
(in Thousands) 1995 1994 1993
- --------------------------------------------------------------------------------
Actuarial present
value of accumulated
benefit obligation,
including vested
benefits of
$20,234 in 1995,
$15,298 in 1994
and $15,414 in 1993 $(21,806) $(16,532) $(16,811)
==============================================
Plan assets at fair value,
primarily listed stocks
and bonds held in
trust 30,737 24,990 26,322
Projected benefit
obligation for service
rendered to date (29,650) (21,662) (22,931)
-----------------------------------------------
Plan assets in excess
of projected benefit
obligation 1,087 3,328 3,391
Unrecognized net
transition asset (1,692) (2,038) (2,415)
Unrecognized net loss
from past experience
different from that
assumed and effect of
change in assumptions 1,743 145 942
Unrecognized prior
service cost 332 363 403
-----------------------------------------------
Prepaid pension cost
included in
other assets $ 1,470 $ 1,798 $ 2,321
===============================================
Net pension cost for the plans included the following components:
(in Thousands) 1995 1994 1993
- --------------------------------------------------------------------------------
Service cost -- benefits
earned during the
period $ 1,253 $ 1,378 $ 958
Interest cost on
projected benefit
obligation 1,859 1,604 1,449
Actual return on
plan assets (5,990) 341 (2,619)
Net amortization
and deferral 3,704 (2,773) 397
-----------------------------------------------
Net periodic
pension cost $ 826 $ 550 $ 185
===============================================
<PAGE>
The assumptions used to develop the projected benefit obligation as of December
31 were as follows:
1995 1994 1993
- --------------------------------------------------------------------------------
Weighted average
discount rate 7.00% 8.50% 7.00%
Rate of increase in
compensation 5.50% 5.50% 5.50%
Expected return on
plan assets 8.50% 8.50% 8.50%
The actuarial present value of the projected benefit obligation for the U.S.
plan increased by approximately $4.9 million at December 31, 1995 and decreased
approximately $4.2 million at December 31, 1994 as a result of the changes in
the weighted average discount rate. The decrease in 1994 was partially offset by
changes in the actuarial assumptions for the Company's foreign plan.
The Company has profit sharing plans covering substantially all of its
employees. The aggregate expense of these plans, as determined by the Board of
Directors, was $3.8 million in 1995, $2.9 million in 1994 and $1.3 million in
1993. In addition, a salary-reduction 401(k) Plan is offered to the Company's
U.S. employees.
The Company has an unfunded supplemental benefits equalization plan designed to
maintain benefit levels for all employees at the plans' formula levels in
instances where individual benefits are limited by the Employee Retirement
Income Security Act of 1974 and the Internal Revenue Code.
A deferred compensation plan is provided for employees and directors whereby the
individual has the right to defer a portion of his or her current salary. The
liability for amounts so deferred has been accrued.
The Company has a formal bonus plan for key executives. The plan provides, among
other things, that the annual bonus be computed on pre-tax income after
consideration for a return on consolidated shareholders' equity. Charges to
operations under this plan were $1.9 million in 1995, $1.4 million in 1994 and
$0.5 million in 1993.
- --------------------------------------------------------------------------------
J. Postretirement Benefits
In addition to the Company's defined benefit pension plans, the Company sponsors
a defined benefit health care plan that provides postretirement medical
benefits. The plan is available to certain existing U.S. retirees at March 31,
1993. In addition, U.S. full-time employees who had attained age 55 with at
least 15 years continuous service as of March 31, 1993 are eligible to receive
medical benefits under the plan subject to a premium limitation of $200 per
month. No other current or future employees will be covered by this plan. The
plan contains other cost sharing features such as deductibles and coinsurance.
The Company's policy is to fund the cost of these medical benefits as premiums
are paid and claims are submitted.
<PAGE>
The following table presents the plan's funded status reconciled with amounts
recognized in the Company's consolidated balance sheets at December 31:
(in Thousands) 1995 1994 1993
- --------------------------------------------------------------------------------
Accumulated
postretirement
benefit obligation:
Retirees $(2,779) $(2,777) $(3,805)
Fully eligible active
plan participants (892) (835) (1,086)
Other active plan
participants (57) (38) (43)
----------------------------------------------
(3,728) (3,650) (4,934)
Plan assets at fair value _ _ _
----------------------------------------------
Accumulated
postretirement
benefit obligation in
excess of plan assets (3,728) (3,650) (4,934)
Unrecognized net
(gain)/loss (329) (467) 802
Unrecognized transition
obligation 3,524 3,731 3,938
----------------------------------------------
Accrued postretirement
benefit cost $ (533) $ (386) $ (194)
==============================================
Net periodic postretirement benefit cost includes the following components:
(in Thousands) 1995 1994 1993
- --------------------------------------------------------------------------------
Service cost $ 4 $ 5 $ 3
Interest cost 259 314 318
Amortization of transi-
tion obligation over
20 years 207 207 207
Net amortization and
deferral 15 7 _
----------------------------------------------
Net periodic postretire-
ment benefit cost $ 485 $ 533 $ 528
==============================================
The assumptions used to develop the net postretirement benefit expense and the
present value of benefit obligations were as follows:
1995 1994 1993
- --------------------------------------------------------------------------------
Weighted average
discount rate 7.00% 8.50% 7.00%
Health care cost trend rate:
Retirees under age 65 10.00% 10.50% 11.00%
Retirees age 65 and
older 7.75% 8.00% 8.25%
The health care cost trend rate for retirees under age 65 is assumed to decline
by 1/2% per year until an ultimate rate of 5.50% is reached in 2005 and later
years. For retirees age 65 and older, the health care cost trend rate is assumed
to decline by 1/4% per year until an ultimate rate of 5.50% is reached in 2005
and later years.
<PAGE>
The accumulated postretirement benefit obligation increased by approximately
$0.4 million in 1995 and decreased by approximately $0.5 million in 1994 as a
result of the changes in the weighted average discount rate.
The effect of increasing the assumed health care cost trend rates by one
percentage point in each year would not be material.
- --------------------------------------------------------------------------------
K. Accrued Liabilities
Accrued liabilities for Manufacturing and Financial Services are summarized as
follows:
(in Thousands) 1995 1994 1993
- --------------------------------------------------------------------------------
Insurance $ 7,724 $ 6,113 $ 4,764
Service agreements 3,878 2,619 1,841
Compensation 3,467 3,703 2,322
Profit sharing 1,538 1,410 596
Stock appreciation rights 1,120 888 538
Interest 876 510 904
Commissions 795 981 646
Other 3,018 1,596 859
--------------------------------------------
$22,416 $17,820 $12,470
============================================
- --------------------------------------------------------------------------------
L. Income Taxes
The components of income before income taxes consisted of the following:
(in Thousands) 1995 1994 1993
- --------------------------------------------------------------------------------
Domestic $ 8,269 $ 5,645 $ 2,184
Foreign 12,546 10,308 5,763
----------------------------------------------
$20,815 $15,953 $ 7,947
==============================================
Federal, foreign and state income tax expense (benefit) consisted of the
following:
(in Thousands) 1995 1994 1993
- --------------------------------------------------------------------------------
Currently payable:
Federal $ 4,692 $ 1,637 $ 1,727
Foreign 4,675 4,199 2,321
State 673 353 197
------------------------------------------------
10,040 6,189 4,245
------------------------------------------------
Deferred:
Federal (1,757) 401 (952)
Foreign 24 (250) (34)
State (219) 88 (57)
------------------------------------------------
(1,952) 239 (1,043)
------------------------------------------------
Total income tax
expense $ 8,088 $ 6,428 $ 3,202
================================================
<PAGE>
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and amounts used for income tax purposes. Significant components of the
Company's deferred tax assets and liabilities as of December 31 are as follows:
(in Thousands) 1995 1994 1993
- --------------------------------------------------------------------------------
Deferred tax assets:
Insurance reserves $ 2,626 $ 2,058 $ 1,620
Compensation 2,268 1,846 1,129
Accounts receivable 1,579 1,088 595
Service agreements 821 641 448
Inventory 762 640 617
Other 1,009 774 738
Tax credit carryforward _ _ 2,150
-----------------------------------------------
Total deferred
tax assets 9,065 7,047 7,297
-----------------------------------------------
Deferred tax liabilities:
Lease finance revenues 4,696 4,207 3,892
Excess tax over book
depreciation 1,281 1,262 1,253
Pension assets 497 707 943
LIFO inventory
accounting change 471 621 849
Other 668 670 576
-----------------------------------------------
Total deferred tax
liabilities 7,613 7,467 7,513
-----------------------------------------------
Net deferred tax
asset (liability) $ 1,452 $ (420) $ (216)
===============================================
The differences between the income tax provisions and the amounts computed by
applying the U.S. Federal statutory rate (35% in 1995 and 1994 and 34% in 1993)
are explained as follows:
(in Thousands) 1995 1994 1993
- --------------------------------------------------------------------------------
Statutory provision $ 7,285 $ 5,584 $ 2,702
State income taxes, net
of federal tax benefit 295 287 92
Foreign subsidiaries 308 341 328
Other -- net 200 216 80
----------------------------------------------
Provision $ 8,088 $ 6,428 $ 3,202
==============================================
The Raymond Corporation files a consolidated federal tax return which includes
Raymond Leasing Corporation and all other significant domestic subsidiaries.
Deferred income taxes and income taxes payable reported in the consolidated
balance sheets include the aggregate amounts for Manufacturing and Financial
Services.
<PAGE>
Undistributed earnings of the Company's foreign subsidiaries amounted to
approximately $43.7 million at December 31, 1995. Those earnings are considered
to be indefinitely reinvested and, accordingly, no provision for U.S. federal
and state income taxes has been provided thereon. Upon distribution of those
earnings in the form of dividends or otherwise, the Company would be subject to
both U.S. income taxes (subject to an adjustment for foreign tax credits) and
foreign withholding taxes. Determination of the amount of unrecognized deferred
U.S. income tax liability is not practicable because of the complexities
associated with its hypothetical calculation; however, unrecognized foreign tax
credit carryforwards would be available to reduce some portion of the U.S.
liability. Withholding taxes of approximately $4.4 million would be payable upon
remittance of all previously unremitted earnings at December 31, 1995.
- --------------------------------------------------------------------------------
M. Business Segment Information
The Company operates predominantly in one business segment, that being the
design, manufacture, sale, leasing and short-term rental of materials handling
equipment. Revenues from unaffiliated customers are realized primarily through
its Dealer Network which is predominantly located in North America.
For purposes of segment information, operating income is total revenue less
applicable operating expenses. In computing results from foreign operations,
exchange transaction gains and losses have been added or deducted. Domestic
transfers are at cost while foreign transfers are at prices to allow for
reasonable profit margins. Identifiable assets include investments in and
advances to unconsolidated investees which are discussed in Note C.
A summary of information about the Company's operation within the one business
segment follows:
(in Thousands)
- --------------------------------------------------------------------------------
Product Mix 1995 1994 1993
- --------------------------------------------------------------------------------
Total Revenues $285,383 $229,547 $171,949
Narrow and very
narrow aisle applications 60% 57% 53%
All other applications 18% 20% 22%
Repair and replacement parts 16% 17% 18%
Leasing and rentals 5% 5% 6%
Other income 1% 1% 1%
- --------------------------------------------------------------------------------
Geographic Areas 1995 1994 1993
- --------------------------------------------------------------------------------
United States:
Unaffiliated customers $163,737 $129,460 $ 98,436
Interarea sales
and transfers* 23,015 20,136 15,785
-------------------------------------------------
186,752 149,596 114,221
Canada:
Unaffiliated customers 12,553 10,880 9,685
Interarea sales
and transfers 101,134 81,891 56,457
-------------------------------------------------
113,687 92,771 66,142
Eliminations (15,056) (12,820) (8,414)
-------------------------------------------------
Total
Revenues $285,383 $229,547 $171,949
=================================================
<PAGE>
1995 1994 1993
- --------------------------------------------------------------------------------
Operating Income:
United States $ 12,028 $ 9,573 $ 3,782
Canada 12,508 10,331 5,930
-------------------------------------------------
$ 24,536 $ 19,904 $ 9,712
=================================================
Identifiable Assets:
United States $210,510 $180,196 $165,740
Canada 39,417 24,180 25,009
-------------------------------------------------
$249,927 $204,376 $190,749
=================================================
*Includes sales of $12,477, $11,082 and $9,582 in 1995, 1994 and 1993,
respectively, to unconsolidated Canadian company at arms-length pricing.
- --------------------------------------------------------------------------------
N. Commitments and Contingencies
The Company's Greene, New York facility has implemented an accelerated capital
expenditure program as part of an estimated $12 million modernization plan which
encompasses new production equipment, manufacturing processes and management
information systems. The program is expected to be completed by late 1996 and
approximately $6.9 million has been expended or committed through December 31,
1995. The remaining expenditures will be funded by a combination of internally
generated resources and existing credit facilities.
The Company is currently defending a number of products liability and similar
lawsuits involving industrial accidents. The Company views these actions, and
related expenses of administration, litigation and insurance, as part of the
ordinary course of its business. The Company has a policy of aggressively
defending products liability lawsuits, which generally take several years to
ultimately resolve. A combination of self-insured retention and insurance is
used to manage these risks and management believes that the insurance coverage
and reserves established for self-insured risks are adequate. The effect of
these lawsuits on future results of operations cannot be predicted because any
such effect depends on the operating results of future periods and the amount
and timing of the resolution of these proceedings. The Company's Dealers
contribute to the funding of the Company's products liability program and, in
turn, the Company indemnifies the Dealers against products liability expense and
manages products liability claims.
The Company is also one of fourteen defendants in a private environmental
lawsuit. The plaintiffs have alleged that scrap metal purchased from the Company
was hazardous and/or was coated with certain solvents and/or cutting oils.
Plaintiffs have the burden of proving the nature and extent of the Company's
contribution to the site, as well as the burden of proving what portion of the
material delivered to the site was "hazardous" as that term is defined in the
environmental statutes. The Company is aggressively defending the claim and does
not believe it is likely to have a material adverse effect on the Company.
In addition to the matters discussed above, the Company is subject to various
other legal proceedings, claims and liabilities which have arisen in the
ordinary course of its business. In the opinion of management, the amount of
ultimate liability, if any, with respect to these actions will not materially
affect the financial results of operations or financial position of the Company.
<PAGE>
- --------------------------------------------------------------------------------
O. Quarterly Information (Unaudited)
(in Thousands, except per share figures)
<TABLE>
<CAPTION>
1995 Quarters First Second Third Fourth
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues $73,007 $72,843 $68,959 $70,574
Gross profit* 17,256 17,651 15,236 16,303
Net income 3,075 3,485 3,002 3,512
Per share amounts:
Net income (Primary) .46(1) .52(1) .43 .50
Net income (Fully Diluted) .36 .40 .35 .40
Market price range:
High 18.33 22.25 21.25 23.50
Low 15.00 18.50 18.25 19.31
1994 Quarters First Second Third Fourth
- --------------------------------------------------------------------------------------------------------------------------------
Revenues $51,207 $58,577 $53,881 $65,882
Gross profit* 11,972 13,473 12,052 16,208
Net income 2,004 2,464 2,153 3,106
Per share amounts:
Net income (Primary) .30 .37 .32 .47
Net income (Fully Diluted) .26 .30 .27 .37
Market price range:
High 16.55 19.05 20.71 20.24
Low 14.29 15.95 17.62 15.24
</TABLE>
*Includes net sales, lease finance revenues and rental revenues less applicable
expenses.
(1) Primary earnings per share would have been $0.45 and $0.50 in the first and
second quarters of 1995, respectively, if the $6.2 million conversion of
debentures had occurred as of January 1, 1995.
The Raymond Corporation is traded on the NASDAQ National Market System (ticker
symbol RAYM). The common stock market prices indicated in the tables above
represent inter-dealer prices as reported by NASDAQ without retail markups,
markdowns or commissions and do not necessarily represent actual transactions.
<PAGE>
- --------------------------------------------------------------------------------
Directors' Affiliations and Committees
Ross K. Colquhoun Director since 1984
Chairman of the Board and Chief Executive Officer
The Raymond Corporation
Chairman of the Board,
G.N. Johnston Equipment Co. Ltd.
Toronto, Ontario, Canada
Chairman of the Board,
Associated Material Handling Industries, Inc.
Elmhurst, Illinois
Ex Officio Member of all Committees of the
Board of Directors except for the
Audit Committee and Executive Compensation Committee
James J. Malvaso Appointed Director 1995
President and Chief Operating Officer
The Raymond Corporation
Finance Committee, Member
Pension Plan Review Committee, Member
Profit Sharing Retirement Plans, Trustee
Savings Plan Investment Committee, Member
James F. Matthews Director since 1994
President
The Matco Group, Incorporated
Audit Committee, Member
Executive Compensation Committee, Member
Human Resource Committee, Member
John E. Mott Director since 1974
Secretary
Raymond Industrial Equipment, Limited
Brantford, Ontario, Canada
Audit Committee, Member
Pension Plan Review Committee, Member
Michael R. Porter Director since 1989
President
Nexus Corporation
Northglenn, Colorado
Audit Committee, Chairman
Executive Committee, Member
Executive Compensation Committee, Member
Human Resource Committee, Member
George G. Raymond, Jr. Director since 1946
Consultant
The Raymond Corporation
Executive Committee, Chairman
Finance Committee, Member
Human Resource Committee, Member
<PAGE>
Arthur M. Richardson Director since 1984
President
Richardson Capital Corporation
Rochester, New York
Executive Committee, Member
Finance Committee, Chairman
Pension Plan Review Committee, Member
Profit Sharing Retirement Plans, Trustee
Savings Plan Investment Committee, Member
Dr. M. Richard Rose Director since 1979
Former President
Rochester Institute of Technology
Rochester, New York
Executive Committee, Member
Executive Compensation Committee, Chairman
Human Resource Committee, Chairman
John V. Sponyoe Director since 1995
President
Loral Federal Systems - Owego
Owego, New York
Audit Committee, Member
Finance Committee, Member
Michael O. Womack Director since 1995
President
Womack Material Handling Systems, Inc.
Pension Plan Review Committee, Chairman
Profit Sharing Retirement Plans, Chairman of Trustees
Savings Plan Investment Committee, Chairman
Christian D. Gibson Director Emeritus since 1994
Consultant
The Raymond Corporation
- --------------------------------------------------------------------------------
Corporate Officers, Principal Subsidiaries and
External Services
Corporate Officers
Ross K. Colquhoun
Chairman of the Board and
Chief Executive Officer
James J. Malvaso
President and
Chief Operating Officer
William B. Lynn
Executive Vice President and
Chief Financial Officer
James B. Bennett, III
Vice President - Sales and
Dealer Development
<PAGE>
James W. Davis
Vice President - Engineering
Jerome R. Dinn
Vice President - National Accounts
Margaret L. Gallagher
Vice President - Marketing
Paul J. Sternberg
Vice President - General Counsel and Secretary
William L. O'Mara
Treasurer
John F. Everts
Corporate Controller
Cathy J. Hawkes
Assistant Secretary
Shareholder Inquiries
Communications concerning shareholder address changes,
stock transfers, changes of ownership and dividend reinvestment
statements should be directed to:
American Stock Transfer & Trust Company
40 Wall Street, 46th Floor
New York, New York 10005
212-936-5100
Principal
Subsidiaries
Dockstocker Corporation
Greene, New York
The Raymond Export Corporation
St. Thomas, U.S. Virgin Islands
Raymond Industrial Equipment, Limited
Brantford, Ontario, Canada
Raymond Leasing Corporation
Greene, New York
Raymond Sales Corporation
Greene, New York
Raymond Transportation Corporation
Greene, New York
R.H.E. Ltd.
Brantford, Ontario, Canada
<PAGE>
External Services
Legal Counsel
Nixon, Hargrave, Devans & Doyle LLP
Rochester, New York
Independent Auditors
Ernst & Young LLP
Syracuse, New York
Transfer Agent and Registrar
American Stock Transfer & Trust Company
New York, New York
Securities Listings
Common stock:
NASDAQ National Market System
ticker symbol RAYM
Subordinated convertible debentures:
NASDAQ Small-Cap Market
ticker symbol RAYMG
Design, Production & Composition:
The Raymond Corporation/Marketing Communications
JD Associates Advertising & Marketing Services
Photography:
L.A. Oliver Photography, Inc./Lou Oliver
Deiter Hessel
Fred Smith Associates/Doug Sanford
Lithography:
Midstate Litho
<PAGE>
Exhibit 21
SUBSIDIARIES OF THE RAYMOND CORPORATION (a)
<TABLE>
<CAPTION>
Percentage of State or Other
Voting Securities Jurisdiction in
Owned Which Organized
-----------------------------------------
<S> <C> <C>
Dockstocker Corporation 100 New York
(Subsidiary of Raymond Sales Corporation)
The Raymond Export Corporation 100 U.S. Virgin Islands
R.H.E. Ltd. 100 Canada
Raymond Industrial Equipment, Limited 100 Canada
(Subsidiary of R.H.E. Ltd.)
Raymond Leasing Corporation 100 Delaware
Raymond Production Systems Corporation 100 California
Raymond Rental Corporation 100 New York
(Subsidiary of Raymond Leasing Corporation)
Raymond Sales Corporation 100 New York
Raymond Transportation Corporation 100 New York
</TABLE>
(a) Unless otherwise noted, the Registrant is the Parent of the above listed
company.
All above listed subsidiaries have been consolidated in the Registrant's
financial statements.
The Registrant has additional operating subsidiaries, which considered in the
aggregate as a single subsidiary, do not constitute a significant subsidiary.
<PAGE>
Exhibit 23
Consent of Independent Auditors
We consent to the incorporation by reference in the Annual Report (Form 10-K)
of The Raymond Corporation of our report dated February 9, 1996, included in
the 1995 Annual Report to Shareholders of the Raymond Corporation.
Our audits also included the financial statement schedules of The Raymond
Corporation listed in Item 14(a). These schedules are the responsibility of the
Company's management. Our responsibility is to express an opinion based on our
audits. In our opinion, the financial statement schedules referred to above
when considered in relation to the basic financial statements taken as a whole,
present fairly in all material respects the information set forth therein.
We also consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 33-63806) pertaining to The Raymond Corporation Savings Plan and
in the Registration Statement (Form S-3 No. 33-71480) pertaining to The Raymond
Corporation 6.5% Convertible Subordinated Debentures Due 2003 of our report
dated February 9, 1996, with respect to the consolidated financial statements
incorporated herein by reference, and our report included in the preceding
paragraph with respect to the financial statement schedules included in this
Annual Report (Form 10-K) of The Raymond Corporation.
/s/ Ernst & Young LLP
Syracuse, New York
March 27, 1996
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned, directors of The Raymond Corporation ("Corporation"),
hereby constitute and appoint Paul J. Sternberg and William B. Lynn, or either
of them, their respective true and lawful attorneys and agents, each with full
power and authority to act as such without the other, to sign the name of the
undersigned to the Corporation's fiscal 1995 Annual Report on Form 10-K, and to
any amendment thereto, to be filed with the Securities and Exchange Commission
under the Securities Exchange Act of 1934 and the related rules and regulations
thereunder, the undersigned hereby ratifying and confirming all that said
attorneys and agents, of either one of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned have signed and delivered these
presents as of this 2nd day of March, 1996.
/s/ Ross K. Colquhoun /s/ George G. Raymond, Jr.
- ----------------------------------- ----------------------------
Ross K. Colquhoun, George G. Raymond, Jr.,
Chairman of the Board, Chief Executive Director
Officer and Director
/s/ James J. Malvaso /s/ Arthur M. Richardson
- ----------------------------------- ----------------------------
James J. Malvaso . Arthur M. Richardson, Director
President, Chief Operating Officer
and Director
/s/ James F. Matthews /s/ Dr. M. Richard Rose
- ----------------------------------- ----------------------------
James F. Matthews, Director Dr. M. Richard Rose, Director
/s/ John E. Mott /s/ John V. Sponyoe
- ----------------------------------- ----------------------------
John E. Mott, Director John V. Sponyoe, Director
/s/ Michael R. Porter /s/ Michael O. Womack
- ----------------------------------- ----------------------------
Michael R. Porter, Director Michael O. Womack, Director
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the December
31, 1995 Form 10-K and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<CASH> 12,359
<SECURITIES> 0
<RECEIVABLES> 38,069
<ALLOWANCES> 1,719
<INVENTORY> 34,645
<CURRENT-ASSETS> 94,258<F1>
<PP&E> 54,565
<DEPRECIATION> 31,237
<TOTAL-ASSETS> 249,927
<CURRENT-LIABILITIES> 34,118<F1>
<BONDS> 103,656
0
0
<COMMON> 10,651
<OTHER-SE> 90,683
<TOTAL-LIABILITY-AND-EQUITY> 249,927
<SALES> 271,388
<TOTAL-REVENUES> 285,383
<CGS> 211,523
<TOTAL-COSTS> 216,125
<OTHER-EXPENSES> 44,722
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,721
<INCOME-PRETAX> 21,162
<INCOME-TAX> 8,088
<INCOME-CONTINUING> 13,074
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 13,074
<EPS-PRIMARY> 1.91
<EPS-DILUTED> 1.52
<FN>
<F1>Reflects current portion of Manufacturing operations only as accounts for
Financial Services are presented in a non-classified format
</FN>
</TABLE>
<PAGE>
(LOGO)
The Raymond Corporation Telephone 607-656-2311
Corporate Headquarters Fax 607-656-9005
Greene, New York 13778
March 29, 1996
Dear Shareholders:
On behalf of the Board of Directors and Management, I cordially invite you to
attend the Annual Meeting of Shareholders of The Raymond Corporation. The
Annual Meeting will be held on Saturday, May 4, 1996 at 11:00 A.M. in the
Greene Central High School, South Canal Street, Greene, New York. The
enclosed Notice of the Meeting and Proxy Statement contain detailed
information about the business to be transacted at the meeting.
The Board of Directors has nominated three present Directors whose terms of
office expire this year to continue to serve as Directors (Class B). In
addition, I am pleased to announce that Mr. James J. Malvaso, President and
Chief Operating Officer of The Raymond Corporation, appointed to the Board of
Directors on October 12, 1995, is nominated as a Director (Class B) for the
first time. Mr. Malvaso replaces Mr. Lee J. Wolf who resigned from the Board
after a 26 year career as an officer and Director of The Raymond Corporation.
The Corporation is grateful to Mr. Wolf for his dedicated service and numerous
contributions throughout the years. The Board of Directors recommends that you
vote for the four nominees.
You are also being asked to approve the appointment of Ernst & Young LLP
as independent auditors of The Raymond Corporation for 1996. The Board of
Directors recommends that you vote for this proposal.
Please use this opportunity to take part in the affairs of the Corporation by
voting on the business to come before this meeting. Whether or not you plan to
attend the meeting, please complete, sign, date and return the accompanying
proxy in the enclosed postage-paid envelope. Returning the proxy does not
deprive you of your right to attend the meeting and to vote your shares in
person for the matters acted upon at the meeting.
We look forward to seeing you at the Annual Meeting.
Sincerely,
/s/ Ross K. Colquhoun
- ------------------------------------
Ross K. Colquhoun
Chairman of the Board and
Chief Executive Officer
<PAGE>
THE RAYMOND CORPORATION
P. O. BOX 130
GREENE, NEW YORK 13778-0130
------
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD MAY 4, 1996
------
To the Shareholders of The Raymond Corporation:
Please take notice that the Annual Meeting of Shareholders of The Raymond
Corporation (the "Corporation") will be held on Saturday, May 4, 1996 at
11:00 A.M. local time, in the Greene Central High School, South Canal Street,
Greene, New York for the following purposes:
(1) To elect four (4) Directors (Class B) to serve for terms of three (3)
years, and until their respective successors are elected and qualified;
(2) To approve the appointment of independent auditors for the year 1996;
and
(3) To transact such other business as may properly come before the
meeting.
The Board of Directors has fixed the close of business on March 15, 1996
as the record date for the determination of shareholders of the Corporation
entitled to notice of and to vote at the meeting, or any adjournment or
adjournments thereof, and only shareholders of record at such time and date
are entitled to notice of and to vote at the meeting.
By Order of the Board of Directors,
/s/ Paul J. Sternberg
---------------------------
Paul J. Sternberg
Secretary
March 29, 1996
- -------------------------------------------------------------------------------
YOUR VOTE IS IMPORTANT
In order to assure your representation at the meeting, please promptly date,
sign and mail the enclosed proxy, which is being solicited on behalf of the
Board of Directors. A self-addressed return envelope, which requires no
postage if mailed in the United States, is enclosed for that purpose.
- -------------------------------------------------------------------------------
<PAGE>
THE RAYMOND CORPORATION
P.O. BOX 130
GREENE, NEW YORK 13778-0130
MARCH 29, 1996
PROXY STATEMENT
PROXIES, VOTING AND RECORD DATE
This Proxy Statement and the enclosed form of proxy will be mailed to
shareholders on or about March 29, 1996, in connection with a solicitation of
proxies by the Board of Directors of The Raymond Corporation, (the
"Corporation"), a New York corporation, to be used at the Annual Meeting of
Shareholders to be held on Saturday, May 4, 1996 at 11:00 A.M. local time, in
the Greene Central High School, South Canal Street, Greene, New York for the
purposes set forth in the foregoing Notice of Annual Meeting of Shareholders.
The Corporation's corporate headquarters are located at South Canal Street,
Greene, New York, 13778.
The form of proxy enclosed may be revoked at any time before it is voted
by filing with the Secretary a written revocation or a proxy bearing a later
date, or by attending and voting at the meeting. If a shareholder specifies
on an effective proxy how it is to be voted on any of the business to come
before the meeting, it will be voted in accordance with such specifications.
If no specification is made on an effective proxy, it will be voted by the
persons named as proxy holders:
FOR the election as Directors of the Corporation of the four nominees
for Director for three year terms, as listed under the caption "Nominees
for Election as Directors", and
FOR the approval of the selection by the Board of Directors of Ernst &
Young LLP as independent auditors for the Corporation for the 1996 fiscal
year.
In the event other business is brought before the meeting, the enclosed
proxy gives discretionary authority to the persons named therein to vote in
accordance with their judgment.
Other than the election of Directors, which requires a plurality of the
votes cast, the approval of the appointment of auditors requires the
affirmative vote of a majority of the votes cast at the Annual Meeting. For
purposes of determining the number of votes cast for a particular matter,
only those votes cast "For" and "Against" are included. Abstentions and
broker non-votes are counted only for purposes of determining whether a
quorum is present at the meeting.
At the close of business on March 15, 1996, the record date for the
determination of shareholders entitled to vote at the meeting, there were
outstanding and entitled to vote 7,082,938 shares of the Corporation's Common
Stock. Each share of Common Stock entitles the holder to one vote.
1
<PAGE>
SECURITY OWNERSHIP OF MANAGEMENT
The following table sets forth, as of March 15, 1996, the number of shares
of the Corporation's Common Stock beneficially owned by each of its Directors
and nominees for Director, each executive officer named in the Summary
Compensation Table, and all Directors and officers as a group, based upon
information obtained from such persons:
<TABLE>
<CAPTION>
Amount and Nature of Beneficial Ownership
---------------------------------------------------------
Sole Voting Options
and Exercisable Other Percent
Name of Individual Investment Within Beneficial of
or Group Power 60 days Ownership Class
--------------- ............... ------------- ------------- ------------ ---------
<S> <C> <C> <C> <C>
Ross K. Colquhoun ............. 146,414 69,770 -0- 2.9%
James J. Malvaso .............. 383 5,723 1,374(1) *
41,870(2)
James F. Matthews ............. -0- 2,036 5,250(1) *
John E. Mott .................. 1,903 7,797 -0- *
Michael R. Porter ............. 1,323 7,797 -0- *
George G. Raymond, Jr. ........ 599,396 -0- 160,557(3) 13.7%
252,567(4)
Arthur M. Richardson .......... 1,014 8,673 41,870(2) *
Dr. M. Richard Rose ........... 6,608 9,357 -0- *
John V. Sponyoe ............... 1,000 920 -0- *
Michael O. Womack ............. 26,276 920 41,870(2) *
Jerome R. Dinn ................ 4,148 15,389 -0- *
Margaret L. Gallagher ......... 11,356 42,446 -0- *
William B. Lynn ............... -0- 41,376 11,605(1)
41,870(2)
674(5) 1.3%
All officers and Directors as a
group (19 persons) ........... 803,662 295,333 478,493 21.3%
</TABLE>
- ------
* Indicates less than one percent ownership.
(1) Shares held jointly with spouse.
(2) Shares held in the Corporation's Profit Sharing Plans, of which Messrs.
Lynn, Malvaso, Richardson and Womack are trustees.
(3) Shares held by the Raymond Foundation, of which Mr. Raymond is a trustee.
(4) Shares held in family trusts, of which Mr. Raymond is co-trustee.
(5) Shares held in trust for son.
2
<PAGE>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
Based on filings with the Securities and Exchange Commission the following
persons and institutions are known by the Corporation to beneficially own
more than five percent of the outstanding shares of Common Stock of the
Corporation:
<TABLE>
<CAPTION>
Name and Address of Shares Beneficially % of
Title of Class Beneficial Owner Owned(1) Class
- -------....... ----------------------------------- ------------------- -------
<S> <C> <C> <C>
Common Stock... George G. Raymond, Jr. The Raymond 1,012,520(2) 14.3%
Corporation Greene, New York 13778-0130
Common Stock... ICM Asset Management, Inc. 601 W. Main 807,476(3) 11.4%
Ave., Suite 917 Spokane, Washington
99201
Common Stock... Pioneering Management Corporation 60 702,820(4) 9.9%
State Street Boston, Massachusetts
02109
Common Stock... Madeleine R. Young 401 E. Linton 502,142(5) 7.1%
Boulevard Apartment 629 DelRay, Florida
33483
Common Stock... David L. Babson & Co., Inc. One Memorial 480,682(6) 6.8%
Drive Cambridge, Massachusetts
02142-1300
Common Stock... The Huntington Trust Company, N.A. 41 392,609(7) 5.5%
South High Street, Suite 3400 Columbus,
Ohio 43287
</TABLE>
- ------
(1) Shareholder has sole voting and sole dispositive power unless otherwise
indicated.
(2) Includes 160,557 shares held by the Raymond Foundation, of which Mr.
Raymond is a trustee. Includes 245,811 shares in family trusts of which
Mr. Raymond, Madeleine R. Young and The Huntington Trust Company of
Florida, N. A. are co-trustees and 6,756 shares in a family trust of
which Mr. Raymond and Marine Midland Bank, N. A. are co-trustees. Mr.
Raymond has shared voting and dispositive power over 413,124 shares.
(3) ICM Asset Management, Inc. reports sole voting power over 498,700 shares.
(4) Pioneering Management Corporation reports shared dispositive power over
276,820 shares.
(5) Includes 160,557 shares held by the Raymond Foundation, of which Mrs.
Young is a trustee. Includes 245,811 shares in family trusts of which
Mrs. Young, Mr. Raymond and The Huntington Trust Company of Florida, N.A.
are co-trustees. Mrs. Young reports shared voting and dispositive power
over 406,368 shares.
(6) David L. Babson & Co., Inc. reports shared voting power over 121,154
shares.
(7) The Huntington Trust Company, N.A. ("Huntington") reports shared voting
power over 375,339 shares; sole dispositive power over 15,313 shares and
shared dispositive power over 375,339 shares. Huntington is the bank
depository for various Raymond family-owned shares.
3
<PAGE>
ELECTION OF DIRECTORS
The Board of Directors is currently comprised of 10 Directors. The Board
is divided into three classes as nearly equal in number as possible. At each
Annual Meeting, Directors constituting one class are nominated for election.
Four (4) Directors of the Corporation are to be elected at this meeting to
serve for terms of three (3) years, and until their respective successors are
elected and qualified.
The shares represented by the enclosed proxy will be voted for the
election of James J. Malvaso, Michael R. Porter, George G. Raymond, Jr. and
Dr. M. Richard Rose unless authority to vote the shares for the election of
Directors is withheld. The Board of Directors believes that all nominees will
be available and able to serve as Directors. If for any reason any nominee
becomes unavailable prior to the Annual Meeting to serve, it is expected that
either (a) the persons named in the proxy will vote for another nominee or
nominees to be selected by the Board of Directors, or (b) the number of
Directors will be reduced accordingly.
The following contains certain information as of March 15, 1996, with
respect to the persons who have been nominated to serve three year terms as
Directors and for the Corporation's other Directors who are currently serving
terms expiring in 1997 and 1998.
NOMINEES FOR ELECTION AS DIRECTORS
JAMES J. MALVASO Appointed Director 1995
Mr. Malvaso, 45, was appointed President and Chief Operating Officer of
the Corporation in August 1995 and was appointed to the Board of Directors in
October 1995. He served as Vice President-Operations of the Corporation from
October 1993 until August 1995 and previously had served from 1990 to 1993 as
Vice President of Operations of Pfaudler-U.S. Inc., a leading manufacturer of
glass-lined reactors, pressure vessels and accessories. Mr. Malvaso is an
advisory board member of Stow Manufacturing Company.
MICHAEL R. PORTER Director since 1989
Mr. Porter, 49, has been President of Nexus Corporation, a greenhouse
manufacturing company, since January 1994. Previously, during 1993-1994, he
was President of Phiji Group, Inc., an investment company, and prior thereto
he was President and General Manager of Diversified Transmission Products,
Borg Warner Automotive Inc. from 1991 to 1993 and Vice President and General
Manager of Borg Warner Automotive Transmission and Engine Components from
1984 to 1991.
GEORGE G. RAYMOND, JR. Director since 1946
Mr. Raymond, 74, served as Chairman of the Board of the Corporation from
1973 until August 1995. He is a lifetime trustee of Alfred University.
DR. M. RICHARD ROSE Director since 1979
Dr. Rose, 63, served as President of Rochester Institute of Technology
from 1979 to 1992. He is a member of the Boards of Directors of Rochester Gas
and Electric Corporation, Baldwin Technology Company, Inc. and Webcraft
Technologies, Inc. and is a trustee of Roberts Wesleyan College.
4
<PAGE>
DIRECTORS CONTINUING IN OFFICE
TERM EXPIRES AT THE 1997 ANNUAL MEETING
JAMES F. MATTHEWS Director since 1994
Mr. Matthews, 61, has been the President of The Matco Group, Inc., a
diversified holding company, since 1965. He is a Director or trustee of
several civic and charitable organizations including the Northeast Regional
Advisory Board of Chase Manhattan Bank, Broome County Charities, Lourdes
Hospital, Mom's House and Syracuse Cancer Research Institute.
JOHN E. MOTT Director since 1974
Mr. Mott, 71, is Secretary of Raymond Industrial Equipment, Limited, a
wholly-owned Canadian subsidiary of the Corporation. Formerly, he served as
Chairman of the Board of Raymond Industrial Equipment, Limited and Vice
President-International Operations of the Corporation. Mr. Mott is also
President of Twenty-Five Investments Ltd., a Canadian investment company.
ARTHUR M. RICHARDSON Director since 1984
Mr. Richardson, 69, has been President of Richardson Capital Corporation,
a venture capital company, since 1985. He is a member of the Boards of
Directors of Goulds Pumps, Inc., Rochester Gas and Electric Corporation,
Transmation Corp., Horus Therapeutic Inc. and Microlytics Inc. Mr. Richardson
also serves as a trustee of the University of Rochester.
TERM EXPIRES AT THE 1998 ANNUAL MEETING
ROSS K. COLQUHOUN Director since 1984
Mr. Colquhoun, 65, was named Chairman of the Board and Chief Executive
Officer of the Corporation in August 1995. Previously, Mr. Colquhoun served
as President and Chief Executive Officer of the Corporation from July 1987 to
August 1995. He is also Chairman of the Board of G. N. Johnston Equipment Co.
Ltd., Associated Material Handling Industries, Inc. and Material Handling
Associates, Inc. ("M.H.A."), the Corporation's joint venture company with
Mitsubishi Caterpillar Forklift America Inc.
JOHN V. SPONYOE Director since 1995
Mr. Sponyoe, 57, is the President of Loral Federal Systems-Owego, a
division of Loral Corporation, a developer and manufacturer of hardware and
software systems. From June 1987 through February 1994, he was Vice President
and General Manager of IBM Federal Systems Company-Owego. Mr. Sponyoe is a
member of the Board of Directors of BSB Bank & Trust Company and a Director
or trustee of several educational, civic and charitable organizations,
including Roberson Museum & Science Center, WSKG public television and radio
and Binghamton University School of Management.
5
<PAGE>
MICHAEL O. WOMACK Director since 1995
Mr. Womack, 54, has been the President of Womack Material Handling
Systems, Inc. since June 1978. Located in Wallingford, Connecticut, Womack
Material Handling Systems, Inc. is a member of the Corporation's Dealer
Network.
Unless otherwise indicated, the principal occupations of all the Directors
have been set forth for five years or more, except that certain of the
Directors have served their present employers in other executive capacities
during such period. Mr. Raymond may be considered, because of his stock
ownership, a "control person" of the Corporation.
COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT
To the Corporation's knowledge, based solely on review of the copies of
such reports furnished to the Corporation and written representations that no
other reports were required during the fiscal year ended December 31, 1995,
all Section 16(a) filing requirements applicable to its officers, Directors
and greater than ten percent beneficial owners were complied with.
COMMITTEES OF THE BOARD OF DIRECTORS
Committees of the Board include the Executive, Finance, Human Resource,
Executive Compensation, Audit and Pension Plan Review Committees. There is no
nominating committee. The nominating function is fulfilled by the Human
Resource Committee. The Human Resource Committee will consider nominees for
Directors recommended by shareholders. Although no formal procedure has been
established, shareholders may submit recommendations to the Secretary of the
Corporation at P. O. Box 130, Greene, New York, 13778 at the time set forth
for submitting shareholder proposals.
The Executive Committee presently has four members: Messrs. Raymond,
Porter, Richardson and Rose. The function of this committee is to act in
place of the Board between Board Meetings in the event a matter requires
immediate attention. This committee held no meetings in 1995.
The Finance Committee presently has four members: Messrs. Richardson,
Malvaso, Raymond and Sponyoe. The function of this committee is to review
capital requirements and make recommendations to the Board of Directors with
respect thereto. This committee held two meetings in l995.
The Human Resource Committee presently has four members: Messrs. Rose,
Matthews, Porter and Raymond. The Committee has the responsibility of
reviewing management practices and matters of employee relations, training
programs and affirmative action. The Human Resource Committee held three
meetings in 1995.
The Executive Compensation Committee presently has three members: Messrs.
Rose, Matthews and Porter. The Executive Compensation Committee reviews the
Corporation's compensation philosophy and programs, sets compensation for the
Chief Executive Officer and authorizes executive compensation to officers. It
also is responsible for the administration of the Corporation's Stock Option
Plans. The Executive Compensation Committee held one meeting in 1995.
6
<PAGE>
The Audit Committee presently has four members: Messrs. Porter, Matthews,
Mott and Sponyoe. The functions of the Audit Committee are to receive and
review the audits of the Corporation's books by outside independent auditors,
to review the internal audit function, to consider matters of accounting
policy and to investigate and make a recommendation to the Board of Directors
each year with respect to the appointment of independent auditors for the
following year. This committee held two meetings in 1995.
The Pension Plan Review Committee presently has four members: Messrs.
Womack, Malvaso, Mott and Richardson. This Committee reviews the Pension
Plans of the Corporation and makes recommendations to the Board with respect
thereto. This committee held two meetings in 1995.
Pursuant to the Bylaws of the Corporation, Mr. Colquhoun is an ex officio
member of all committees of the Board except for the Audit Committee and the
Executive Compensation Committee.
The Board of Directors met five times during Fiscal 1995. No incumbent
Director attended fewer than 75% of the total number of meetings of the Board
and Committees on which the Director served.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Directors Dr. M. Richard Rose, James F. Matthews and Michael R. Porter
comprise the Corporation's Executive Compensation Committee. Messrs. Rose,
Matthews and Porter are nonemployee Directors of the Corporation and none of
them are a former officer of the Corporation or any of its subsidiaries.
James F. Matthews is the President and 100% owner of The Matco Group, Inc.
The Corporation does business with several of Mr. Matthews' companies,
including Wholesale Electric Supply Corp., a supplier of electrical wiring
materials, U. S. Assemblies Endicott, Inc., a supplier of assembled printed
circuit boards and Matthews Leasing Corp., an automobile leasing company. In
1995, the Corporation paid $3,031,000 for services and materials supplied by
Mr. Matthews' companies to the Corporation in the ordinary course of
business.
DIRECTORS' REMUNERATION
Directors who are employees of the Corporation receive no compensation for
their service as Directors or as members of committees. Each Director who is
not an employee of the Corporation ("Outside Director") receives or is
credited with the following fees: annual retainer, $12,000 per year, $800 for
each Board meeting attended and $800 for each committee meeting attended with
a maximum of one paid committee meeting fee per day.
George G. Raymond, Jr. is a paid consultant to the Corporation. The
Corporation recognizes Mr. Raymond's associations, contacts, experience and
expertise developed over the years and considers his contributions valuable
to the Corporation in expanding its present operations and making them more
profitable. Mr. Raymond will participate in specific corporate events at the
request of the Chief Executive Officer and will be paid $101,200 in 1996 for
his consulting services. The consulting agreement expires December 31, 1996.
Mr. Raymond receives no compensation for his service as a Board member.
Members of the Board of Directors participate in the Corporation's Stock
Option Plan. The Plan provides each of the Outside Directors with automatic
annual option grants to purchase for up to ten years that number of shares of
the Corporation's Common Stock equal to the average compensation paid to the
Outside Directors divided by the fair market value per share on the date of
the grant.
7
<PAGE>
Outside Directors also may participate in the Corporation's Deferred
Compensation Plan for Exempt Employees, which permits deferral of
compensation and provides for interest at the prime rate on the amounts
deferred. In 1995, Lee J. Wolf, former Director who resigned from the Board
in October 1995, participated in the Plan.
REPORT OF THE EXECUTIVE COMPENSATION COMMITTEE
The Executive Compensation Committee of the Board of Directors (the
"Committee") is comprised of three independent nonemployee Directors. As
noted earlier in this proxy statement, the Committee's duties include
recommending to the Board of Directors the base salary for the Chief
Executive Officer ("CEO") and all other executive officers and administering
the Corporation's Stock Option Plan.
COMPENSATION POLICY AND OVERALL OBJECTIVES
The Committee believes that compensation of the Corporation's key
executive employees should:
-- attract, retain and motivate a high caliber of executives, since the
performance of these employees on a long-term basis is vital to the
success of the business.
-- link rewards to business results and shareholder returns.
-- provide variable, at risk compensation that is dependent upon the
level of success in meeting specified individual and corporate goals.
-- encourage executives to become shareholders of the Corporation
promoting identification with the Corporation's shareholders and their
interests.
The Committee annually reviews and compares the Corporation's compensation
programs for its executive officers with that of other North American durable
goods manufacturing companies including those of comparable sales volume,
employment levels, product and service offerings. A number of these companies
are included in the Value Line Machinery Peer Group referred to in the
performance graph on page 12.
The key elements of the Corporation's executive compensation policy are
base salary, annual incentives in the form of a cash bonus and long-term
incentives in the form of stock options. The Committee evaluates base
salaries in accordance with its policy of focusing on individual performance
and competitive market conditions. The other two components, annual cash
incentives and long-term incentives are designed to increase motivation for
achieving strategic objectives. Compensation received from these two
components are directly linked to business results.
BASE SALARY
Base salaries are targeted to average pay levels of executive officers in
comparable North American durable goods manufacturing companies, as noted
previously. The Committee also reviews salary information supplied by outside
consultants when establishing base salary structures.
Salaries within these structures vary by individual and when reviewing
each executive officer's salary, the Committee considers the executive's
level of performance, responsibility, prior experience, breadth of knowledge,
abilities, equity issues relating to pay of other Corporate executives and
external pay practices. In making salary recommendations or decisions, the
8
<PAGE>
Committee exercises its discretion and judgment based on these factors. No
specific formula is applied to determine the weight of any one factor.
The base salary for the Corporation's CEO, Ross K. Colquhoun, was reviewed
in March 1995 by the Committee. The Committee reviewed Mr. Colquhoun's salary
based on its assessment of the Corporation's financial and non-financial
performance. The Committee has identified several factors which are critical
to the Corporation's success including growth in shareholder value, sales
growth, earnings per share growth and the development of new products. As a
result of Mr. Colquhoun's vision and leadership, the Corporation achieved
records in essentially all critical areas including new equipment orders,
revenues, profit and earnings. The Committee concluded that Mr. Colquhoun's
efforts improved the Corporation's presence in domestic and international
markets and enabled the Corporation to secure a number of Original Equipment
Manufacturer ("O.E.M.") agreements in 1995, which are expected to produce
revenues and profits in the years ahead. For the year 1995, the Committee
authorized a base salary of $381,471 for Mr. Colquhoun. This amount places
him at the average level of salaries for CEO's in comparable North American
durable goods manufacturing companies as reported in the Watson Wyatt Data
Services Top Management Report.
ANNUAL CASH INCENTIVE
Consistent with the overall objectives described above, annual cash
incentives are awarded pursuant to the Corporation's Executive Bonus Plan.
This Plan promotes the Corporation's "pay for performance" philosophy by
providing executives with financial reward in the form of annual cash bonuses
based upon the achievement of specific, predetermined goals and the
Corporation's profit after providing for return on shareholders' equity.
In 1994, the specifically measured performance goals established for 1995
included increased market distribution, introduction of new products and
services, expansion into domestic and international markets, continued
success of the National Accounts Program and introduction and sale of the
DOCKSTOCKER(TM) product line.
The executive bonus plan approved by the Committee in December 1994 for
the 1995 fiscal year was based on a relationship of pre-tax profits to the
Corporation's shareholders' equity. The Committee believes that a bonus based
on this formula aligns the executives' reward directly to shareholder value.
Mr. Colquhoun was awarded a bonus of $325,751 in 1995 based on the formula
and the remaining bonus pool was distributed among designated senior
executives in the Corporation.
LONG-TERM INCENTIVES
The Raymond Corporation Stock Option Plan is a stock-based incentive
compensation plan under which employees selected by the Committee may receive
awards of stock options and stock appreciation rights. The Corporation
encourages the recipients to hold the common stock issued pursuant to the
Plan so that the employees' interests will continue to be aligned with the
long-term interests of the Corporation's shareholders.
No option awards are made in the absence of satisfactory performance by
the eligible employees. Performance is evaluated by the Committee based on
the employee's individual contribution to the long-term health of the
Corporation and the Corporation's performance. The number of options granted
annually is determined according to a formula based on the market price of
the Corporation's Common Stock, base salary and performance level, without
regard to the number of options held by the optionee. The Committee granted
non-qualified and incentive stock options to executive officers and other
eligible employees in March 1995 at an exercise price per share of $17.02 per
9
<PAGE>
share, the closing price of the common stock on the NASDAQ (National
Association of Securities Dealers Quotations System) market on the date of
grant, adjusted for the 1995 5% stock dividend. In the event that the stock
price declines to a level below the option grant price options are not
revalued or reissued. Stock options expire ten (10) years from the date of
grant.
In accordance with the Plan, the CEO was awarded 22,418 non-qualified
stock options at a fair market value of $17.02 per share in 1995.
COMPLIANCE WITH INTERNAL REVENUE CODE SECTION 162(M)
Section 162(m) of the Internal Revenue Code generally limits to $1 million
the annual corporate federal income tax deduction for certain
"non-performance based" compensation paid to the CEO or any of the four other
highest paid officers of a publicly-held corporation.
The Committee has determined that it is unlikely that the Corporation
would pay compensation in fiscal 1996 that would result in the loss of
federal income tax deduction under Section 162(m) of the Internal Revenue
Code of 1986, and has therefore not recommended that any special actions be
taken or plans or programs be revised at this time. The Committee will
continue to monitor the applicability of Section 162(m) to the Corporation's
programs and will determine at a later date what actions the Corporation
should take.
Respectfully submitted,
The Executive Compensation Committee
Dr. M. Richard Rose, Chairman
James F. Matthews
Michael R. Porter
10
<PAGE>
EXECUTIVE COMPENSATION
The following table sets forth information with respect to the Chief
Executive Officer and the four most highly compensated other executive
officers of the Corporation.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Long-Term
Annual Compensation Compensation Awards
------------------------------------------------- ---------------------
(a) (b) (c) (d) (e) (g) (i)
Name and Other Annual Securities Underlying All Other
Principal Position Year Salary($) Bonus ($) Compensation($) Options/SARs(#)(1) Compensation($)
------------------------ ------ --------- --------- --------------- --------------------- ------------------
<S> <C> <C> <C> <C> <C> <C>
Ross K. Colquhoun 1995 381,471 325,751 0 22,418 52,143(2)(3)(4)(5)
Chairman of the 1994 318,101 314,660 0 23,814 43,962
Board & CEO 1993 305,257 158,195 0 23,538 14,610
James J. Malvaso 1995 132,788 203,594 0 5,723 14,177(2)(3)(4)(5)
President & COO 1994 114,423 124,830 0 5,844 11,705
1993 56,587 26,014 0 N/A 1,944
William B. Lynn 1995 159,328 203,594 0 9,293 19,557(2)(3)(4)(5)
Executive Vice 1994 150,421 124,830 0 8,930 15,933
President 1993 132,789 68,042 0 9,041 5,134
Jerome R. Dinn 1995 125,470 162,876 0 4,253 15,747(2)(3)(4)(5)
Vice President- 1994 121,397 124,830 0 4,741 14,067
National Accounts 1993 119,469 52,028 0 6,395 5,017
Margaret L. Gallagher 1995 119,106 162,876 0 5,513 14,991(2)(3)(4)(5)
Vice President-Marketing 1994 117,769 124,830 0 7,331 12,886
1993 114,165 52,028 0 7,387 4,281
</TABLE>
- ------
(1) Adjusted to reflect the 1995 5% stock dividend.
(2) Insurance premiums paid for the benefit of Mr. Colquhoun, $6,769, Mr.
Malvaso, $691, Mr. Lynn, $1,338, Mr. Dinn, $1,398 and Ms. Gallagher,
$1,323.
(3) Includes cash profit sharing amounts of $16,490 to Mr. Colquhoun, $7,933
to Mr. Malvaso, $8,192 to Mr. Lynn, $6,290 to Mr. Dinn and $6,057 to Ms.
Gallagher.
(4) Includes deferred profit sharing amounts of $3,652 for CEO and named
executive officers.
(5) Includes deferred profit sharing amounts under supplemental benefits
equalization plan of $25,232 to Mr. Colquhoun, $1,901 to Mr. Malvaso,
$6,375 to Mr. Lynn, $4,407 to Mr. Dinn and $3,959 to Ms. Gallagher.
11
<PAGE>
PERFORMANCE GRAPH
The following performance graph compares the performance of the
Corporation's Common Stock for the last five fiscal years to the S & P 500
Index and the Value Line Machinery Peer Group, which consists of 30
companies.
Comparison of Five-Year Cumulative Total Return*
(Performance Results Through 12/31/95)
$400.00 |--------------------------------------------------------------------|
| |
| |
| *|
| |
$300.00 |--------------------------------------------------------------------|
| |
| * |
| |
| * &#|
$200.00 |-------------------------------*------------------------------------|
| # # |
| &# & & |
| *&# |
| |
$100.00 |----*&#-------------------------------------------------------------|
| |
| |
| |
| |
$0.00 |-----|------------|-----------|-------------|-------------|---------|
1990 1991 1992 1993 1994 1995
* = THE RAYMOND CORPORATION & = Standard & Poors 500
# = Machinery
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
1990 1991 1992 1993 1994 1995
---- ---- ---- ---- ---- ----
THE RAYMOND CORPORATION * $100.00 $120.00 $200.00 $223.33 $259.00 $334.43
Standard & Poors 500 & $100.00 $130.55 $140.72 $154.91 $157.39 $216.42
Machinery # $100.00 $127.71 $143.45 $185.07 $178.91 $206.26
</TABLE>
Assumes $100 invested at the close of trading 12/90 in The Raymond Corporation
Common Stock, S & P 500 and Value Line Machinery Peer Group.
*Cumulative total return assumes reinvestment of dividends.
12
<PAGE>
EMPLOYMENT AND CHANGE IN CONTROL AGREEMENTS
At the 1988 Annual Meeting, shareholders ratified an employment agreement
entered into by the Corporation with Ross K. Colquhoun, (the "Employment
Agreement"), now Chairman of the Board and Chief Executive Officer of the
Corporation. Pursuant to the Employment Agreement as amended, he is entitled
to participate in benefits generally available to executive officers. Upon
attaining age 65, Mr. Colquhoun became eligible to receive a supplemental
annual pension payment of 50% of his most recent base salary.
The Employment Agreement is terminable by either party at any time. If Mr.
Colquhoun resigns prior to a change in control, other than because of a
material breach of the Employment Agreement by the Corporation, or if he is
terminated by the Corporation for cause, or as a result of death or permanent
disability, he will not be entitled to further compensation. If (other than
following a change in control) Mr. Colquhoun resigns as a result of a
material breach of the Employment Agreement or is terminated without cause,
he will be entitled to receive his current salary and benefits for one year.
Such amounts and benefits will be reduced by compensation or benefits
received by Mr. Colquhoun from other employment, but he will receive at least
six monthly payments of salary. "Cause" is defined as a material
misappropriation of funds or property, unreasonable and persistent neglect of
or refusal to perform his duties or conviction of a felony.
If Mr. Colquhoun's employment is terminated after a change in control by
the Corporation without cause, Mr. Colquhoun or his estate will be entitled
to receive an amount payable in 36 monthly installments equal to 2.99 times
his average compensation for the five years preceding the change in control
subject to limitations on excess parachute payments in the Internal Revenue
Code. In addition, the Corporation will continue his insurance benefits for
three years.
The Corporation has agreements with James J. Malvaso, William B. Lynn,
Jerome R. Dinn and Margaret L. Gallagher which provide, in the event of a
change in control of the Corporation, for continuing the employment of the
executive for a period of three years at salary and benefit levels not less
than that which existed immediately prior to the change in control. In the
event of termination of employment without cause during this three year
period, the executive's salary and benefits continue for the remainder of the
three year period, reduced by salary and benefits earned in subsequent
employment. The Corporation has similar agreements with all of its senior
executive officers.
13
<PAGE>
The following table shows, as to the Chief Executive Officer and the four
most highly compensated other executive officers of the Corporation,
information about option grants in the last fiscal year under the
Corporation's Stock Option Plan (1991).
OPTION GRANTS IN THE LAST FISCAL YEAR
<TABLE>
<CAPTION>
Potential Realizable Value At
Assumed Annual Rates of
Stock Price Appreciation
Individual Grants For Option Term
--------------------- -------------------------------------------------------------- ----------------------
(a) (b) (c) (d) (e) (f) (g)
Percent of
Number of Total
Securities Options/SARs Exercise
Underlying Granted to or Base
Options/SARs Employees in Price Expiration
Name Granted (#)(2) Fiscal 1995 ($/SH) Date 5%($)(1) 10%($)(1)
- --------------------- -------------- -------------- ---------- ------------ ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Ross K. Colquhoun 22,418 32.1% $ 17.02 3/02/05 $240,097 $608,200
James J. Malvaso 5,723 8.2 17.02 3/02/05 61,293 155,265
William B. Lynn 9,293 13.3 17.02 3/02/05 99,528 252,119
Jerome R. Dinn 4,253 6.1 17.02 3/02/05 45,550 115,384
Margaret L. Gallagher 5,513 7.9 17.02 3/02/05 59,044 149,568
</TABLE>
- ------
(1) The assumed annual rates of appreciation of five and ten percent would
result in the price of the Corporation's Common Stock increasing to
$27.73 and $44.15, respectively, from the $17.02 market price on the date
of grants. Over the last 10 years, the market price of the Corporation's
Common Stock has increased at a compounded annual rate of 4.3%.
(2) Stock options granted on March 3, 1995 under the Corporation's Stock
Option Plan. Options became fully exercisable on March 3, 1996.
14
<PAGE>
The following table shows aggregate option exercises in the last fiscal
year and fiscal year-end option values for the Chief Executive Officer and
the four most highly compensated other executive officers.
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR
AND
FISCAL YEAR-END OPTION/SAR VALUES
<TABLE>
<CAPTION>
(a) (b) (c) (d) (e)
-------------- -------------- ----------- -------------------------------- --------------------------------
Number of Securities
Underlying Unexercised
Options/SARs at Value of Unexercised In-The-Money
December 31, 1995 Options/SARs at
Shares (#) December 31, 1995 (1)
Acquired Value ($)
Name on Exercise(#)(2) Realized($) Exercisable Unexercisable Exercisable Unexercisable
- ---- ----------------- ----------- ------------- --------------- ------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Ross K. Colquhoun ... 71,363 $690,655 47,352 22,418 $338,892 $128,455
James J. Malvaso .... 5,844 28,519 -0- 5,723 -0- 32,793
William B. Lynn ..... 4,513 5,634 37,748 9,293 255,222 53,249
Jerome R. Dinn ...... -0- -0- 11,136 4,253 80,182 24,370
Margaret L. Gallagher -0- -0- 36,933 5,513 418,034 31,589
</TABLE>
- ------
(1) Computed based upon the difference between aggregate fair market value on
December 31, 1995 and aggregate exercise price.
(2) Amounts represent the number of securities underlying Options/SARs
exercised. The actual shares acquired on exercise were 17,883, 1,374 and
315 for Messrs. Colquhoun, Malvaso and Lynn, respectively.
PENSION PLANS
The Corporation has trusteed non-contributory defined benefit pension
plans. All present U. S. employees over age 21 who have one or more years of
service and who became employees prior to age 60 and Canadian employees with
more than three months of service are eligible under these plans. A total of
1,922 individuals participated in 1995.
As permitted by the Employee Retirement Income Security Act of 1974, the
Corporation has adopted a supplemental plan which is designed to provide the
amount of retirement benefit which cannot be paid from the pension plans by
reason of certain Internal Revenue Code limitations on qualified plan
benefits. The amounts in the Pension Plan Table include the amounts payable
under the supplemental plan.
Estimated annual pensions at age 65, the assumed normal retirement age,
calculated on a straight-life annuity basis, for representative years of
benefit service are as follows:
<TABLE>
<CAPTION>
Highest Consecutive
Three Year Average
Earnings Years of Credited Service
--------------------------------------------------------------------------
15 20 25 30 35 40
--------- ---------- ---------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
$100,000 .......... $ 9,941 $13,255 $16,569 $19,883 $23,197 $ 26,510
150,000 ........... 14,912 19,883 24,854 29,824 34,795 39,766
200,000 ........... 19,883 26,510 33,138 39,766 46,393 53,021
250,000 ........... 24,854 33,138 41,423 49,707 57,992 66,276
300,000 ........... 29,824 39,766 49,707 59,648 69,590 79,531
350,000 ........... 34,795 46,393 57,992 69,590 81,188 92,786
400,000 ........... 39,766 53,021 66,276 79,531 92,786 106,042
</TABLE>
15
<PAGE>
Benefits under the pension plans are based primarily on 0.6% of the
participant's average compensation (salary and bonus) for the highest three
consecutive years of compensation during the ten year period prior to
termination or retirement, whichever is earlier, multiplied by the number of
years of credited service. Benefits are non-forfeitable after five years of
vesting service, and actuarially reduced benefits are available for
participants who retire on or after age 55 after five years of vesting
service. Plan benefits are not reduced by any social security or other
non-plan benefits to which the participant is entitled.
Three year average covered compensation for the Chief Executive Officer,
Mr. Colquhoun and the named executives as of the end of fiscal year 1995 is:
Mr. Colquhoun $228,973, Mr. Lynn $280,661, Mr. Dinn $235,933 and Ms.
Gallagher $214,501 (Mr. Malvaso's average cannot be computed as he has been
with the Corporation for only two years). Covered compensation for the named
executives is reported in the Summary Compensation Table.
The years of credited service for the Chief Executive Officer and named
executives are: 39 years for Mr. Colquhoun, 2 years for Mr. Malvaso, 21 years
for Mr. Lynn, 11 years for Mr. Dinn and 19 years for Ms. Gallagher.
The above information reflects a 1994 amendment to the U. S. Pension Plan
which permits service as an employee at G.N. Johnston Equipment Co. Ltd. to
be counted toward Service and Benefit Service under the U. S. Plan if the
individual becomes an employee of the Corporation.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Ross K. Colquhoun, Chairman of the Board and Chief Executive Officer of
the Corporation, is Chairman of the Board of G.N. Johnston Equipment Co. Ltd.
("Johnston") and of Associated Material Handling Industries, Inc.
("Associated"), both Dealers of the Corporation's products. Mr. Colquhoun
owns, indirectly through a wholly-owned corporation, 28 percent of the
outstanding stock of Johnston and 26 percent of the outstanding stock of
Associated. The Corporation owns 46 percent of the outstanding stock of
Johnston and 43 percent of the outstanding stock of Associated. The remainder
is owned by executives of these companies. Prior to Mr. Colquhoun coming to
The Raymond Corporation in 1987, he was President of Johnston, the exclusive
Dealer of the Corporation's products in Canada. In 1995, Mr. Colquhoun served
as President of Material Handling Associates, Inc. ("M.H.A."). The
Corporation's sales to Johnston, Associated and M.H.A. aggregated
approximately $69,456,000 in 1995, were made in the ordinary course of
business and on the Corporation's standard terms for Dealers.
The Corporation, through a wholly-owned Canadian subsidiary, has a note
receivable from Johnston for approximately $1,246,000 bearing interest at
6.75%. The note is to be repaid in annual installments through 1998. In
addition, the Corporation has made advances to Johnston and Associated at
variable interest rates. The maximum amount of these advances outstanding in
1995 was approximately $2,885,000 and the outstanding advances at December
31, 1995 were approximately $2,219,000. The loan and advances to Johnston
were made through wholly-owned Canadian subsidiaries with funds earned in
Canada.
Pursuant to agreements among the Corporation and the shareholders of
Johnston and Associated, respectively, the Corporation is obligated to
purchase for adjusted book value, as defined in the agreements entered into
in 1968 and 1980, the shares of the other shareholders, including Mr.
Colquhoun, when they cease to be officers, Directors or employees of Johnston
or Associated.
16
<PAGE>
Michael O. Womack, a Director of the Corporation, is the President and
100% shareholder of Womack Material Handling Systems, Inc., ("Womack"), a
Dealer of the Corporation's products. The Corporation's sales to Womack,
which aggregated approximately $6,148,000 in 1995, were made in the ordinary
course of business and on the Corporation's standard terms for Dealers.
George G. Raymond, Jr. has an interest free loan from the Corporation of
$150,252, which was the balance outstanding at March 15, 1996 and which also
was the maximum outstanding in 1995.
The Corporation maintains officers' and Directors' indemnification
insurance with Chubb Group (Federal Insurance Company), which it renewed in
1995 at an annual premium of $80,000.
PROPOSAL TO APPROVE APPOINTMENT OF INDEPENDENT AUDITORS
The Board of Directors recommends shareholder approval of the Board's
action in appointing Ernst & Young LLP, ("Ernst & Young"), as independent
auditors of the Corporation and its subsidiaries for the year 1996. Ernst &
Young has served as independent auditors for the Corporation for 18 years,
and based upon a review by the Audit Committee of the Board of Directors of
Ernst & Young's performance and fees, the Audit Committee recommended to the
Board of Directors their retention for 1996. Accordingly, the following
resolution will be offered at the Meeting:
"RESOLVED, that the appointment by the Board of
Directors of The Raymond Corporation of Ernst &
Young LLP as independent auditors of the Corporation and its
subsidiary companies for the fiscal year ending
December 31, 1996 is hereby approved."
Representatives of the firm of Ernst & Young are expected to be present at
the Annual Meeting. They will have an opportunity to make a statement if they
so desire and will be available to respond to appropriate questions.
ANNUAL REPORT
The Annual Report of the Corporation, including audited financial
statements for the year 1995, accompanies this Proxy Statement or has been
previously mailed to shareholders.
OTHER MATTERS
The Board of Directors knows of no other matters to be presented at the
meeting. If other matters properly come before the meeting the persons named
in the enclosed proxy will have discretionary authority to vote such proxy in
accordance with their best judgment on such matters.
SHAREHOLDER PROPOSALS FOR 1997 ANNUAL MEETING OF SHAREHOLDERS
In order for shareholder proposals for the 1997 Annual Meeting of
Shareholders to be eligible for inclusion in the Corporation's Proxy
Statement, they must be received by the Corporation at its principal office
(South Canal Street, P. O. Box 130, Greene, New York, 13778-0130) prior to
November 30, 1996. Proposals must comply with Rule 14a-8 promulgated by the
SEC pursuant to the Securities Exchange Act of 1934.
17
<PAGE>
COST OF SOLICITATION
This solicitation is made on behalf of the Board of Directors of the
Corporation. The cost of solicitation of proxies in the accompanying form
will be paid by the Corporation. The Corporation will also, pursuant to
regulations of the Securities and Exchange Commission, make arrangements with
brokerage houses and other custodians, nominees and fiduciaries to send
proxies and proxy materials to their principals and will reimburse them for
their reasonable expenses in so doing. In addition to solicitation by use of
the mails, certain Directors, officers and employees of the Corporation may
solicit the return of proxies by telephone, telegram, or personal interviews.
The Corporation has retained Morrow & Co., Inc., New York, New York, to
assist in the solicitation of proxies and will pay approximately $3,500 in
fees for the solicitation of proxies to such firm, plus reimbursement of
expenses.
By Order of the Board of Directors,
/s/ Paul J. Sternberg
------------------------------
Paul J. Sternberg
Secretary
Greene, New York
March 29, 1996
18
<PAGE>
/X/ Please mark your
votes as in this
example.
The Board of Directors recommends votes FOR:
FOR WITHHELD
(1) Election of
Directors / / / /
(see reverse)
For, except as withheld in the space provided below:
- ----------------------------------------------------
FOR AGAINST ABSTAIN
2. The appointment of Ernst
& Young LLP as auditors / / / / / /
for the year 1996.
When a vote is not specified, this Proxy will be voted FOR
the election of directors, FOR item (2), and in the
discretion of the Proxies on such other matters as may
properly come before the meeting.
The undersigned acknowledges receipt with this Proxy of
copies of the Notice of Annual Meeting and Proxy Statement
dated March 29, 1996.
SIGNATURE(S) DATED , 1996.
------------------------------------- -----------------
IMPORTANT: Please date this Proxy and sign exactly as your name(s) appear
hereon. In signing as attorney, executor, administrator, trustee
or guardian, please give full title as such and, if signing for a
corporation, please give your title. When shares are in the names of
more than one person, each should sign the Proxy.
<PAGE>
THE RAYMOND CORPORATION
PROXY FOR ANNUAL MEETING
SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned appoints JAMES F. MATTHEWS, GEORGE G. RAYMOND, JR. and
PAUL J. STERNBERG, and any one of them, with power of substitution, attorneys
and proxies to represent the undersigned at the Annual Meeting of Shareholders
of THE RAYMOND CORPORATION to be held on Saturday May 4, 1996 at 11:00 A.M. in
the Greene Central High School, South Canal Street, Greene, New York, and at
any adjournment or adjournments thereof, with all power which the undersigned
would possess if personally present, and to vote all shares of stock which the
undersigned may be entitled to vote at said meeting.
James J. Malvaso
Michael R. Porter
George G. Raymond, Jr.
Dr. M. Richard Rose
To vote in accordance with the Board of Directors' recommendations, just
sign the reverse side; no boxes need to be checked.
<PAGE>
THE RAYMOND CORPORATION
ANNUAL MEETING OF SHAREHOLDERS
We hope you will attend the Annual Meeting of Shareholders of
The Raymond Corporation which will be held on Saturday, May 4,
1996 at 11:00 A.M., at the Greene Central High School, South
Canal Street, Greene, New York. After the meeting we invite you
to be our guest for lunch at Baron's Inn on Route 12 in Greene,
New York.
If you are planning to attend the luncheon, please indicate
below and return this card with your Proxy.
[ ] I am planning to stay for the luncheon following the Annual
Meeting.
Please make reservations for me and a guest for lunch.
--------------------------------------------------------------------
Name of Shareholder Name of Guest
--------------------------------------------------------------------
Street Address
--------------------------------------------------------------------
City, State
(THIS IS NOT A PROXY)
