EXHIBIT 10.3
CREDIT AGREEMENTPHIC
THIS CREDIT AGREEMENT (this "Agreement") is entered into as of June 1,
2006, by and between LINDSAY MANUFACTURING CO., a Delaware corporation
("Borrower"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Bank").
RECITALS
Borrower has requested that Bank extend credit to Borrower as described
below, and Bank has agreed to provide such credit to Borrower on the terms and
conditions contained herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Bank and Borrower hereby agree as follows:
ARTICLE I
CREDIT TERMS
SECTION 1.1. TERM LOAN.
(a) Term Loan. Subject to the terms and conditions of this Agreement, Bank
hereby agrees to make a loan to Borrower in the principal amount of Thirty
Million Dollars ($30,000,000.00) ("Term Loan"), the proceeds of which shall be
used to finance the acquisition of other business operations. Borrower's
obligation to repay the Term Loan shall be evidenced by a promissory note dated
as of June 1, 2006 ("Term Note"), all terms of which are incorporated herein by
this reference. Bank's commitment to fund the Term Loan shall terminate on July
1, 2006 if the conditions set forth in Section 3.1 have not been satisfied or
waived on or before such date.
(b) Repayment. Principal and interest on the Term Loan shall be repaid in
accordance with the provisions of the Term Note.
(c) Prepayment. Borrower may prepay principal on the Term Loan solely in
accordance with the provisions of the Term Note.
SECTION 1.2. INTEREST/FEES.
(a) Interest. The outstanding principal balance of the Term Loan shall bear
interest at the rate of interest set forth in the Term Note.
(b) Computation and Payment. Interest shall be computed on the basis of a
360-day year, actual days elapsed. Interest shall be payable at the times and
place set forth in the Term Note.
SECTION 1.3. COLLECTION OF PAYMENTS. Any principal and interest due under
the Term Loan shall be paid by Borrower to Bank at the Bank's account,
_______________, in U.S. dollars and in immediately available funds; provided,
however, that Bank may collect any principal and interest due under the Term
Loan that has not been paid by the close of business on the applicable payment
date by charging Borrower's deposit account to be opened with Bank.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Borrower makes the following representations and warranties to Bank, which
representations and warranties shall survive the execution of this Agreement and
shall continue in full force and effect until the full and final payment, and
satisfaction and discharge, of all obligations of Borrower to Bank subject to
this Agreement.
SECTION 2.1. LEGAL STATUS. Borrower is a corporation, duly incorporated and
existing and in good standing under the laws of Delaware, and is qualified or
licensed to do business (and is in good standing as a foreign corporation, if
applicable) in all jurisdictions in which the failure to so qualify, to be so
licensed or to be in good standing could reasonably be expected to have a
material adverse effect on the financial condition of Borrower.
SECTION 2.2. AUTHORIZATION AND VALIDITY. This Agreement and the Term Note
(collectively, the "Loan Documents") have been duly authorized, and upon their
execution and delivery by Borrower in accordance with the provisions hereof,
assuming, in the case of this Agreement, due execution and delivery by Bank,
will constitute legal, valid and binding agreements and obligations of Borrower,
enforceable against Borrower in accordance with their respective terms.
SECTION 2.3. NO VIOLATION. The execution, delivery and performance by
Borrower of each of the Loan Documents do not violate any provision of any law
or regulation, or contravene any provision of the Articles of Incorporation or
By-Laws of Borrower, or result in any breach of or default under any contract,
obligation, indenture or other instrument to which Borrower is a party or by
which Borrower is bound, where such violation, breach or default could
reasonably be expected to have a material adverse effect on the financial
condition of Borrower.
SECTION 2.4. LITIGATION. There are no pending, or to the best of Borrower's
knowledge threatened, actions, claims, investigations, suits or proceedings by
or before any governmental authority, arbitrator, court or administrative agency
which could reasonably be expected to have a material adverse effect on the
financial condition of Borrower, other than those disclosed by Borrower to Bank
in writing prior to the date hereof.
SECTION 2.5. CORRECTNESS OF FINANCIAL STATEMENT. The financial statement of
Borrower dated February 28, 2006, a true copy of which has been delivered by
Borrower to Bank prior to the date hereof, (a) is complete and correct and
presents fairly the financial condition of Borrower in accordance with generally
accepted accounting principles, (b) discloses all liabilities of Borrower that
are required to be reflected or reserved against under
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generally accepted accounting principles, whether liquidated or unliquidated,
fixed or contingent, and (c) has been prepared in accordance with generally
accepted accounting principles consistently applied. Since the date of such
financial statement there has been no material adverse change in the financial
condition of Borrower and its subsidiaries, taken as a whole, nor has Borrower
mortgaged, pledged, granted a security interest in or otherwise encumbered any
of its assets or properties except (i) Permitted Liens (as defined below), (ii)
in favor of Bank, or (iii) as otherwise permitted by Bank in writing.
SECTION 2.6. INCOME TAX RETURNS. Borrower has no knowledge of any pending
assessments or adjustments of its income tax not reflected in its most recent
audited balance sheet that could reasonably be expected to have a material
adverse effect on the financial condition of the Borrower.
SECTION 2.7. NO SUBORDINATION. There is no agreement, indenture, contract
or instrument to which Borrower is a party or by which Borrower may be bound
that requires the subordination in right of payment of any of Borrower's
obligations subject to this Agreement to any other obligation of Borrower.
SECTION 2.8. PERMITS, FRANCHISES. Borrower possesses all permits, consents,
approvals, franchises and licenses and rights to all trademarks, trade names,
patents, and fictitious names, if any, necessary to enable it to conduct the
business in which it is now engaged in material compliance with applicable law.
SECTION 2.9. ERISA. Borrower is in compliance in all material respects with
all applicable provisions of the Employee Retirement Income Security Act of
1974, as amended or recodified from time to time ("ERISA"); Borrower has not
violated any provision of any defined employee pension benefit plan (as defined
in ERISA) maintained or contributed to by Borrower (each, a "Plan"); no
Reportable Event as defined in ERISA has occurred and is continuing with respect
to any Plan initiated by Borrower; Borrower has met its minimum funding
requirements under ERISA with respect to each Plan; and each Plan will be able
to fulfill its benefit obligations as they come due in accordance with the Plan
documents and under generally accepted accounting principles.
SECTION 2.10. OTHER OBLIGATIONS. Borrower is not in default on any
obligation for borrowed money, any purchase money obligation or any other
material lease, commitment, contract, instrument or obligation.
SECTION 2.11. ENVIRONMENTAL MATTERS. Except as disclosed by Borrower to
Bank in writing prior to the date hereof, Borrower is in compliance in all
material respects with all applicable federal or state environmental and
hazardous waste statutes, and any rules or regulations adopted pursuant thereto,
which govern or apply to any of Borrower's operations and/or properties,
including without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Superfund Amendments and
Reauthorization Act of 1986, the Federal Resource Conservation and Recovery Act
of 1976, and the Federal Toxic Substances Control Act, as in effect on the date
hereof. Borrower neither has knowledge of nor has received any written notice
that its operations are the subject of any federal or state
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investigation evaluating whether any remedial action involving a material
expenditure is needed to respond to a release of any toxic or hazardous waste or
substance into the environment. Borrower has no contingent liability in
connection with any release of any toxic or hazardous waste or substance into
the environment that could reasonably be expected to have a material adverse
effect on the financial condition of Borrower.
ARTICLE III
CONDITIONS
SECTION 3.1. CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of
Bank to extend any credit contemplated by this Agreement is subject to the
fulfillment to Bank's satisfaction of all of the following conditions:
(a) Approval of Bank Counsel. All legal matters incidental to the extension
of credit by Bank shall be satisfactory to Bank's counsel.
(b) Documentation. Bank shall have received, in form and substance
satisfactory to Bank, each of the following, duly executed:
(i) This Agreement.
(ii) The Term Note.
(iii) Certificate of Incumbency.
(iv) Corporate Resolution: Borrowing.
(v) Such other documents as Bank may require under any other Section of
this Agreement.
(c) Financial Condition. There shall have been no material adverse change,
as determined by Bank, in the financial condition of Borrower and its
subsidiaries, taken as a whole, hereunder.
(d) Compliance. The representations and warranties contained herein and in
each of the other Loan Documents shall be true on and as of the date of the
signing of this Agreement and no Event of Default as defined herein, and no
condition, event or act which with the giving of notice or the passage of time
or both would constitute such an Event of Default, shall have occurred and be
continuing or shall exist.
ARTICLE IV
AFFIRMATIVE COVENANTS
Borrower covenants that so long as Bank remains committed to extend credit
to Borrower pursuant hereto, or any liabilities (whether direct or contingent,
liquidated or unliquidated) of Borrower to Bank under any of the Loan Documents
remain outstanding, and until payment in full of all obligations of Borrower
subject hereto, Borrower shall, unless Bank otherwise consents in writing:
SECTION 4.1. PUNCTUAL PAYMENTS. Punctually pay all principal, interest,
fees or other liabilities due under any of the Loan Documents at the times and
place and in the manner
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specified therein, and immediately upon demand by Bank, the amount by which the
outstanding principal balance of any credit subject hereto at any time exceeds
any limitation on borrowings applicable thereto.
SECTION 4.2. ACCOUNTING RECORDS. Maintain adequate books and records in
accordance with generally accepted accounting principles consistently applied,
and permit any representative of Bank, at any reasonable time upon reasonable
notice, to inspect, audit and examine such books and records, to make copies of
the same, and to inspect the properties of Borrower.
SECTION 4.3. FINANCIAL STATEMENTS.
(a) Provide to Bank not later than 90 days after the end of each fiscal
year, financial statements of the Borrower, audited by KPMG or another certified
public accountant acceptable to Bank, to include balance sheet, income
statement, statement of cash flows, management report, auditor's report and
footnotes; provided, however, that this covenant shall be deemed to be satisfied
upon the electronic filing of the same included within the Borrower's Annual
Report on Form 10-K with the Securities and Exchange Commission.
(b) Provide to Bank not later than 45 days after the end of each of the
first three fiscal quarters in each fiscal year, unaudited financial statements
of the Borrower, to include balance sheet, income statement and statement of
cash flows; provided, however, that this covenant shall be deemed to be
satisfied upon the electronic filing of the same included within the Borrower's
Quarterly Report on Form 10-Q with the Securities and Exchange Commission.
(c) Provide to Bank all of the following:
(i) within ten (10) days of the filing by Borrower of any Annual Report on
Form 10-K or Quarterly Report on Form 10-Q with the Securities and Exchange
Commission, a certificate of the President or Chief Financial Officer of
Borrower that the financial statements filed therewith are accurate and the
Borrower is in compliance in all material respects with all covenants in this
Agreement and there exists no Event of Default nor any condition, act or event
which with the giving of notice or the passage of time or both would constitute
an Event of Default; and
(ii) within ten (10) days of the filing by Borrower of any Current Report
on Form 8-K with the Securities and Exchange Commission, written notice of such
filing; provided, however, that this covenant shall be deemed to be satisfied
upon the electronic filing of such Current Report on Form 8-K with the
Securities and Exchange Commission.
(iii) from time to time such other information as Bank may reasonably
request.
SECTION 4.4. COMPLIANCE. Preserve and maintain all licenses, permits,
governmental approvals, rights, privileges and franchises necessary for the
conduct of its business; and comply with the provisions of Borrower's articles
of incorporation and bylaws, as amended from time to time, and with the
requirements of all laws, rules, regulations and orders
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of any governmental authority applicable to Borrower and/or its business, except
where the failure to so preserve or maintain or to so comply could not
reasonably be expected to have a material adverse effect on the financial
condition of Borrower and its subsidiaries, taken as a whole.
SECTION 4.5. INSURANCE. Maintain and keep in force insurance of the types
and in amounts customarily carried in lines of business similar to that of
Borrower, including but not limited to fire, extended coverage, public
liability, property damage and workers' compensation, with all such insurance
carried with reputable insurance companies, and deliver to Bank from time to
time at Bank's request schedules setting forth all insurance then in effect.
SECTION 4.6. FACILITIES. Keep all properties useful or necessary to
Borrower's business in good repair and condition, ordinary wear and tear and
maintenance excepted, and from time to time make necessary repairs, renewals and
replacements thereto so that such properties shall be fully and efficiently
preserved and maintained.
SECTION 4.7. TAXES. Pay and discharge when due any and all material
assessments and taxes, both real or personal, including without limitation
federal and state income taxes and state and local property taxes and
assessments, except such (a) as Borrower may in good faith contest or as to
which a bona fide dispute may arise, and (b) for which Borrower has made
adequate reserves in accordance with generally accepted accounting principles.
SECTION 4.8. FINANCIAL CONDITION. Maintain Borrower's financial condition
as follows using generally accepted accounting principles consistently applied
and used consistently with prior practices (except to the extent modified by the
definitions herein):
(a) Consolidated Funded Debt to EBITDA not greater than 2.5 to 1.0 as of
each quarter end, determined on a rolling 4-quarter basis, with "Funded Debt"
defined as the sum of all obligations for borrowed money (including subordinated
debt) plus that portion of all capital lease obligations reported on the balance
sheet of Borrower as a liability, and with "EBITDA" defined as net profit before
tax plus interest expense, depreciation expense and amortization expense;
provided however that, in the event that an acquisition or disposition permitted
by this Agreement shall have been consummated during such four fiscal quarter
period, in computing Consolidated EBITDA, net profit (and all other amounts
specified in the definition of Consolidated EBITDA ) shall be computed on a pro
forma basis giving effect to such acquisition or disposition, as the case may
be, as of the first day of such period.
(b) Consolidated Fixed Charge Coverage Ratio not less than 1.25 to 1.0 as
of each quarter end, determined on a rolling 4-quarter basis, with "Fixed Charge
Coverage Ratio" defined as the aggregate of net profit after taxes plus
depreciation expense, amortization expense, cash capital equity contributions
and increases in subordinated debt minus dividends, distributions and decreases
in subordinated debt, divided by the aggregate of the current portion of long
term debt and capitalized lease payments.
SECTION 4.9. NOTICE TO BANK. Promptly (but in no event more than five (5)
days after Borrower becomes aware of the occurrence of each such event or
matter) give written
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notice to Bank in reasonable detail of: (a) the occurrence of any Event of
Default, or any condition, event or act which with the giving of notice or the
passage of time or both would constitute an Event of Default; (b) any change in
the name or the form of organization of Borrower; or (c) the occurrence and
nature of any Reportable Event or Prohibited Transaction, each as defined in
ERISA, or any funding deficiency with respect to any Plan.
ARTICLE V
NEGATIVE COVENANTS
Borrower further covenants that so long as Bank remains committed to extend
credit to Borrower pursuant hereto, or any liabilities (whether direct or
contingent, liquidated or unliquidated) of Borrower to Bank under any of the
Loan Documents remain outstanding, and until payment in full of all obligations
of Borrower subject hereto, Borrower will not without Bank's prior written
consent:
SECTION 5.1. USE OF FUNDS. Use any of the proceeds of any credit extended
hereunder except for the purposes stated in Article I hereof.
SECTION 5.2. CAPITAL EXPENDITURES. Make any additional investment in fixed
assets greater than $7,000,000.00 in any fiscal year.
SECTION 5.3. OTHER INDEBTEDNESS. Create, incur, assume or permit to exist
any indebtedness or liabilities resulting from borrowings, loans or advances,
whether secured or unsecured, matured or unmatured, liquidated or unliquidated,
joint or several, except (a) the liabilities of Borrower to Bank, (b) any other
liabilities of Borrower existing as of, and disclosed to Bank prior to, the date
hereof, and (c) indebtedness of the Borrower and its subsidiaries in an
aggregate amount not to exceed $5,000,000.00.
SECTION 5.4. MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Merge into or
consolidate with any other entity (except mergers or consolidations whereby
Borrower is the surviving corporation or mergers or consolidations of a
subsidiary of Borrower with or into any other subsidiary of Borrower, in each
case, so long as immediately after giving effect to such transaction, no Event
of Default shall have occurred and be continuing); make any substantial change
in the nature of Borrower's business as conducted as of the date hereof; nor
sell, lease, transfer or otherwise dispose of all or a substantial or material
portion of Borrower's assets except in the ordinary course of its business.
SECTION 5.5. GUARANTIES. Guarantee or become liable in any way as surety,
endorser (other than as endorser of negotiable instruments for deposit or
collection in the ordinary course of business), accommodation endorser or
otherwise for, nor pledge or hypothecate any assets of Borrower as security for,
any liabilities or obligations of any other person or entity, except (a) any of
the foregoing in favor of Bank, and (b) limited recourse guarantees entered into
n the ordinary course of business in connection with customer financing
transactions.
SECTION 5.6. LOANS, ADVANCES, INVESTMENTS. Make any loans or advances to or
investments in any person or entity, except (a) any of the foregoing existing as
of, and
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disclosed to Bank prior to, the date hereof, (b) trade credit extended in the
ordinary course of business, (c) customer financing transactions in the ordinary
course of business, (d) loans or advances for travel, expenses, relocation,
entertainment or otherwise in connection with their employment or the business
of Borrower, (e) certificates of deposit, bank accounts, and investments in cash
equivalents, (f) investments in marketable securities, mutual funds and other
investments made in the ordinary course of business, (g) investments in
subsidiaries existing as of the date hereof, investments in and advances to
wholly owned subsidiaries, and acquisitions of subsidiaries permitted hereunder.
SECTION 5.7. PLEDGE OF ASSETS. Mortgage, pledge, grant or permit to exist a
security interest in, or lien upon, all or any portion of Borrower's assets now
owned or hereafter acquired, except (a) any of the foregoing in favor of Bank or
that are existing as of, and disclosed to Bank in writing prior to, the date
hereof, (b) liens for taxes not delinquent or for taxes and other items being
contested in good faith, (c) contractors', carriers', warehousemen's and similar
liens, liens of landlords, and workers compensation, unemployment and other
similar deposits or pledges, all in the ordinary course of business, (d) liens
in respect of capital leases and purchase money obligations, (e) liens securing
indebtedness not in excess of $750,000.00 at any time outstanding, (f)
attachment, judgment and other similar liens, provided that the execution or
enforcement of such lien is stayed and is being contested, or (g) liens existing
on any asset of an entity when it becomes a subsidiary or when it is merged or
consolidated with or into Borrower or any of its subsidiaries, and, in each
case, not created in contemplation of such event.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. The occurrence of any of the following shall constitute an
"Event of Default" under this Agreement:
(a) Borrower shall fail to pay when due any principal, interest, fees or
other amounts payable under any of the Loan Documents, and such default shall
continue for a period of three (3) days from its occurrence.
(b) Any representation or warranty made by Borrower under this Agreement or
any other Loan Document shall prove to be incorrect, false or misleading in any
material respect when furnished or made.
(c) Any default in the performance of or compliance with any obligation,
agreement or other provision contained herein or in any other Loan Document
(other than those referred to in subsections (a) and (b) above), and with
respect to any such default which by its nature can be cured, such default shall
continue for a period of twenty (20) days from its occurrence.
(d) Any default (beyond any applicable cure period) in the payment of any
obligation, or any defined event of default, under the terms of any contract or
instrument (other than any of the Loan Documents) pursuant to which Borrower has
incurred debt for borrowed money in
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excess of $5,000,000.00 to any person or entity other than Bank or an affiliate
of Bank, or in any amount to Bank or an affiliate of Bank.
(e) The filing of a notice of judgment lien against Borrower or the
recording of an abstract of judgment against Borrower in any county in which
Borrower has an interest in real property, in each case, in excess of $5,000,000
over the amount of any insurance proceeds reasonably expected to be received,
which remains unsatisfied without entry of a stay of execution within 30 days
after the issuance or any writ of execution or similar legal process or the
entry of a judgment against Borrower in excess of $5,000,000 over the amount of
any insurance proceeds reasonably expected to be received.
(f) Borrower shall become insolvent, or shall suffer or consent to or apply
for the appointment of a receiver, trustee, custodian or liquidator of itself or
any of its property, or shall generally fail to pay its debts as they become
due, or shall make a general assignment for the benefit of creditors; Borrower
shall file a voluntary petition in bankruptcy, or seeking reorganization, in
order to effect a plan or other arrangement with creditors or any other relief
under the Bankruptcy Reform Act, Title 11 of the United States Code, as amended
or recodified from time to time ("Bankruptcy Code"), or under any state or
federal law granting relief to debtors, whether now or hereafter in effect; or
any involuntary petition or proceeding pursuant to the Bankruptcy Code or any
other applicable state or federal law relating to bankruptcy, reorganization or
other relief for debtors is filed or commenced against Borrower and Borrower
shall file an answer admitting the jurisdiction of the court and the material
allegations of any involuntary petition; or Borrower shall be adjudicated a
bankrupt, or an order for relief shall be entered against Borrower by any court
of competent jurisdiction under the Bankruptcy Code or any other applicable
state or federal law relating to bankruptcy, reorganization or other relief for
debtors.
(g) The dissolution or liquidation of Borrower; or Borrower or its Board of
Directors or its stockholders shall take action to effect the dissolution or
liquidation of Borrower.
(h) There is a report filed by any person on Schedule 13D (or any successor
schedule) pursuant to the Securities Exchange Act of 1934 (the "Exchange Act"),
disclosing that such person (for the purposes of Section 6.1(h) only, "person"
is as defined in Section 13(d)(3) of the Exchange Act) has become the beneficial
owner (for the purposes of Section 6.1(h) only, "beneficial owner" is as defined
under Rule 13d-3 under the Exchange Act) of 50% or more of the voting power of
Borrower's voting stock then outstanding; provided, however, that a person shall
not be deemed beneficial owner of, or to own beneficially (1) any voting stock
tendered pursuant to a tender or exchange offer made by or on behalf of such
person or its affiliates or associates until such tendered voting stock is
accepted for purchase or exchange thereunder, or (2) any voting stock if such
beneficial ownership arises solely as a result of a revocable proxy delivered in
response to a proxy or consent solicitation, and is not also then reportable on
Schedule 13D (or any successor schedule) under the Exchange Act.
SECTION 6.2. REMEDIES. Upon the occurrence of any Event of Default: (a) all
indebtedness of Borrower under each of the Loan Documents, any term thereof to
the contrary
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notwithstanding, shall at Bank's option (and without notice in the event of an
Event of Default defined in Section 6.1(f)) become immediately due and payable
without presentment, demand, protest or notice of dishonor, all of which are
hereby expressly waived by each Borrower; and (b) Bank shall have all rights,
powers and remedies available under each of the Loan Documents, or accorded by
law. All rights, powers and remedies of Bank may be exercised at any time by
Bank and from time to time after the occurrence of an Event of Default, are
cumulative and not exclusive, and shall be in addition to any other rights,
powers or remedies provided by law or equity.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. NO WAIVER. No delay, failure or discontinuance of Bank in
exercising any right, power or remedy under any of the Loan Documents shall
affect or operate as a waiver of such right, power or remedy; nor shall any
single or partial exercise of any such right, power or remedy preclude, waive or
otherwise affect any other or further exercise thereof or the exercise of any
other right, power or remedy. Any waiver, permit, consent or approval of any
kind by Bank of any breach of or default under any of the Loan Documents must be
in writing and shall be effective only to the extent set forth in such writing.
SECTION 7.2. NOTICES. All notices, requests and demands which any party is
required or may desire to give to any other party under any provision of this
Agreement must be in writing delivered to each party at the following address:
BORROWER: LINDSAY MANUFACTURING CO.
0000 X. 000xx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Fax No.: (000) 000-0000
BANK: XXXXX FARGO BANK, NATIONAL ASSOCIATION
Nebraska RCBO / MAC# N8000-01B
0000 Xxxxxxx Xxxxxx (0xx xxxxx)
Xxxxx, XX 00000-0000
Attention: Commercial Banking
Fax No.: (000) 000-0000
or to such other address or facsimile number as any party may designate by
written notice to all other parties. Each such notice, request and demand shall
be deemed given or made as follows: (a) if sent by hand delivery or overnight
courier service, upon signature by or on behalf of the receiving party; (b) if
sent by certified or registered mail, upon the earlier of the date of actual
receipt or three (3) days after deposit in the U.S. mail, first class and
postage prepaid; and (c) if sent by facsimile, upon actual receipt.
SECTION 7.3. COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay to
Bank promptly upon demand the full amount of all payments, advances, charges,
costs and expenses, including reasonable attorneys' fees (to include outside
counsel fees but exclude
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allocated costs of Bank's in-house counsel), expended or incurred by Bank in
connection with (a) the negotiation and preparation of this Agreement and the
other Loan Documents, (b) the preparation of any amendments and waivers hereto
and thereto, (c) the enforcement of Bank's rights and/or the collection of any
amounts which become due to Bank under any of the Loan Documents, and (d) the
prosecution or defense of any action in any way related to any of the Loan
Documents, including without limitation, any action for declaratory relief,
whether incurred at the trial or appellate level, in an arbitration proceeding
or otherwise, and including any of the foregoing incurred in connection with any
bankruptcy proceeding (including without limitation, any adversary proceeding,
contested matter or motion brought by Bank or any other person) relating to any
Borrower or any other person or entity; provided that the maximum amount that
Borrower shall be obligated to pay to Bank under clause (a) above shall be
$5,000.
SECTION 7.4. SUCCESSORS, ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the heirs, executors, administrators, legal
representatives, successors and assigns of the parties; provided however, that
Borrower may not assign or transfer its interest hereunder without Bank's prior
written consent and Bank may not assign or otherwise transfer any of its rights
or obligations hereunder except in whole to an affiliate of Bank or to a bank or
similar financial institution which shall be, in the absence of an Event of
Default, reasonably acceptable to Borrower, or by way of a participation
permitted under this section 7.4, and any other attempted assignment or transfer
shall be null and void. Bank reserves the right to grant participations in all
or any part of, or any interest in, Bank's rights and benefits under each of the
Loan Documents, provided that Bank's obligations under this Agreement shall
remain unchanged and the Borrower shall continue to deal solely with Bank, and
provided further that any agreement for such a participation shall provide that
Bank shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement. In
connection therewith, and subject to the terms of the a confidentiality
agreement reasonably satisfactory to Borrower, Bank may disclose all documents
and information which Bank now has or may hereafter acquire relating to any
credit subject hereto, Borrower or its business.
SECTION 7.5. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other Loan
Documents constitute the entire agreement between Borrower and Bank with respect
to each credit subject hereto and supersede all prior negotiations,
communications, discussions and correspondence concerning the subject matter
hereof. This Agreement may be amended or modified only in writing signed by each
party hereto.
SECTION 7.6. NO THIRD PARTY BENEFICIARIES. This Agreement is made and
entered into for the sole protection and benefit of the parties hereto and their
respective permitted successors and assigns, and no other person or entity shall
be a third party beneficiary of, or have any direct or indirect cause of action
or claim in connection with, this Agreement or any other of the Loan Documents
to which it is not a party.
SECTION 7.7. TIME. Time is of the essence of each and every provision of
this Agreement and each other of the Loan Documents.
SECTION 7.8. SEVERABILITY OF PROVISIONS. If any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective only to
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the extent of such prohibition or invalidity without invalidating the remainder
of such provision or any remaining provisions of this Agreement.
SECTION 7.9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be an
original, and all of which when taken together shall constitute one and the same
Agreement.
SECTION 7.10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nebraska.
SECTION 7.11. ARBITRATION.
(a) Arbitration. The parties hereto agree, upon demand by any party, to
submit to binding arbitration all claims, disputes and controversies between or
among them (and their respective employees, officers and directors), whether in
tort, contract or otherwise arising out of or relating to in any way (i) the
Term Loan and related Loan Documents which are the subject of this Agreement and
its negotiation, execution, administration, repayment, modification, extension,
substitution, formation, inducement, enforcement, default or termination; or
(ii) requests for additional credit.
(b) Governing Rules. Any arbitration proceeding will (i) proceed in a
location in Nebraska selected by the American Arbitration Association ("AAA");
(ii) be governed by the Federal Arbitration Act (Title 9 of the United States
Code), notwithstanding any conflicting choice of law provision in any of the
documents between the parties; and (iii) be conducted by the AAA, or such other
administrator as the parties shall mutually agree upon, in accordance with the
AAA's commercial dispute resolution procedures, unless the claim or counterclaim
is at least $1,000,000.00 exclusive of claimed interest, arbitration fees and
costs in which case the arbitration shall be conducted in accordance with the
AAA's optional procedures for large, complex commercial disputes (the commercial
dispute resolution procedures or the optional procedures for large, complex
commercial disputes to be referred to, as applicable, as the "Rules"). If there
is any inconsistency between the terms and procedures hereof and the Rules, the
terms and procedures set forth herein shall control. Any party who fails or
refuses to submit to arbitration following a demand by any other party shall
bear all costs and expenses incurred by such other party in compelling
arbitration of any dispute. Nothing contained herein shall be deemed to be a
waiver by any party that is a bank of the protections afforded to it under 12
U.S.C. Section 91 or any similar applicable state law.
(c) No Waiver of Provisional Remedies. The arbitration requirement does not
limit the right of any party under applicable law to obtain provisional or
ancillary remedies such as replevin, injunctive relief, attachment or the
appointment of a receiver, before during or after the pendency of any
arbitration proceeding. This exclusion does not constitute a waiver of the right
or obligation of any party to submit any dispute to arbitration or reference
hereunder, including those arising from the exercise of the actions detailed in
this paragraph.
(d) Arbitrator Qualifications and Powers. Any arbitration proceeding in
which the amount in controversy is $5,000,000.00 or less will be decided by a
single arbitrator selected according to the Rules, and who shall not render an
award of greater than $5,000,000.00. Any
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dispute in which the amount in controversy exceeds $5,000,000.00 shall be
decided by majority vote of a panel of three arbitrators; provided however, that
all three arbitrators must actively participate in all hearings and
deliberations. Each arbitrator will be a neutral attorney licensed in the State
of Nebraska or a neutral retired judge of the state or federal judiciary of
Nebraska, in either case with a minimum of ten years experience in the
substantive law applicable to the subject matter of the dispute to be
arbitrated. The arbitrator(s) will determine whether or not an issue is
arbitratable and will give effect to the statutes of limitation in determining
any claim. In any arbitration proceeding the arbitrator(s) will decide (by
documents only or with a hearing at the discretion of the arbitrator(s)) any
pre-hearing motions which are similar to motions to dismiss for failure to state
a claim or motions for summary adjudication. The arbitrator(s) shall resolve all
disputes in accordance with the substantive law of Nebraska and may grant any
remedy or relief that a court of such state could order or grant within the
scope hereof and such ancillary relief as is necessary to make effective any
award. The arbitrator(s) shall also have the power to award recovery of all
costs and fees, to impose sanctions and to take such other action as the
arbitrator(s) deem(s) necessary to the same extent a judge could pursuant to the
Federal Rules of Civil Procedure, the Nebraska Rules of Civil Procedure or other
applicable law. Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction. The institution and maintenance of an
action for judicial relief or pursuit of a provisional or ancillary remedy shall
not constitute a waiver of the right of any party, including the plaintiff, to
submit the controversy or claim to arbitration if any other party contests such
action for judicial relief.
(e) Discovery. In any arbitration proceeding, discovery will be permitted
in accordance with the Rules. All discovery shall be expressly limited to
matters directly relevant to the dispute being arbitrated and must be completed
no later than 20 days before the hearing date and within 180 days of the filing
of the dispute with the AAA. Any requests for an extension of the discovery
periods, or any discovery disputes, will be subject to final determination by
the arbitrator(s) upon a showing that the request for discovery is essential for
the party's presentation and that no alternative means for obtaining information
is available.
(f) Class Proceedings and Consolidations. The resolution of any dispute
arising pursuant to the terms of this Agreement shall be determined by a
separate arbitration proceeding and such dispute shall not be consolidated with
other disputes or included in any class proceeding.
(g) Payment Of Arbitration Costs And Fees. The arbitrator(s) may award all
costs and expenses of the arbitration proceeding.
(h) Miscellaneous. To the maximum extent practicable, the AAA, the
arbitrator(s) and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the dispute with the
AAA. No arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business, by applicable law or
regulation, or pursuant to its filings with the Securities and Exchange
Commission. If more than one agreement for arbitration by or between the parties
potentially applies to a dispute, the arbitration provision most directly
related to the Loan Documents or the subject matter of the
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dispute shall control. This arbitration provision shall survive termination,
amendment or expiration of any of the Loan Documents or any relationship between
the parties.
A CREDIT AGREEMENT MUST BE IN WRITING TO BE ENFORCEABLE UNDER NEBRASKA LAW. TO
PROTECT THE PARTIES FROM ANY MISUNDERSTANDINGS OR DISAPPOINTMENTS, ANY CONTRACT,
PROMISE, UNDERTAKING OR OFFER TO FOREBEAR REPAYMENT OF MONEY OR TO MAKE ANY
OTHER FINANCIAL ACCOMMODATION IN CONNECTION WITH THIS LOAN OF MONEY OR GRANT OR
EXTENSION OF CREDIT, OR ANY AMENDMENT OF, CANCELLATION OF, WAIVER OF, OR
SUBSTITUTION FOR ANY OR ALL OF THE TERMS OR PROVISIONS OF ANY INSTRUMENT OR
DOCUMENT EXECUTED IN CONNECTION WITH THIS LOAN OF MONEY OR GRANT OR EXTENSION OF
CREDIT, MUST BE IN WRITING TO BE EFFECTIVE.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
LINDSAY MANUFACTURING CO. XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxx, President Xxxxxxx X. Xxxxxxxx, Vice President
and Chief Executive Officer
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