EXHIBIT 10(E)
FOURTH AMENDMENT TO
CREDIT AGREEMENT
This Fourth Amendment to Credit Agreement, dated as of March 31, 1997
("Fourth Amendment"), is made by and between POLARIS INDUSTRIES INC., a
Minnesota corporation (the "Borrower"); FIRST BANK NATIONAL ASSOCIATION, BANK OF
AMERICA ILLINOIS and FIRST UNION NATIONAL BANK OF NORTH CAROLINA (collectively,
the "Banks"); and FIRST BANK NATIONAL ASSOCIATION, as administrative agent for
the Banks (the "Administrative Agent").
WHEREAS, the Borrower, the Banks and the Administrative Agent have entered
into that certain Credit Agreement dated as of May 8, 1995, as amended by First
Amendment to Credit Agreement dated as of November 15, 1995, Second Amendment to
Credit Agreement dated as of February 13, 1996 and Third Amendment to Credit
Agreement dated as of September 30, 1996 (as so amended, the "Credit
Agreement").
WHEREAS, the Borrower has requested the Banks and the Administrative Agent
to modify certain provisions of the Credit Agreement, and the Banks and the
Administrative Agent are willing to do so on the terms and conditions set forth
herein.
NOW THEREFORE, in consideration of the premises and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto covenant and agree to be bound as follows:
Section 1. CAPITALIZED TERMS. All capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to them in the
Credit Agreement.
Section 2. AMENDMENTS.
(a) The definitions of "Guarantors," "Revolving Commitment Amount"
and "Revolving Note" in Section 1.1 of the Credit Agreement are amended to read
in their entirety as follows:
"GUARANTORS": Collectively, Polaris Acceptance Inc., Polaris
Industries Inc., Polaris Industries Export Ltd., Polaris Real Estate
Corporation of Iowa, Inc., Polaris Real Estate Corporation and any
Additional Guarantors.
"REVOLVING COMMITMENT AMOUNT": With respect to a Bank:
(a) during the period ending on and including March 31, 1998, the
amount set opposite such Bank's name in the table immediately below or as
specified in the most
recent Assignment Agreement to which such Bank is a party, but as the same
may be from time to time reduced pursuant to Section 2.14:
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Bank Revolving Commitment Amount Prior to
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April 1, 1998
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First Bank National Association $54,000,000
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Bank of America Illinois $48,000,000
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First Union National Bank of North $48,000,000
Carolina
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(b) during the period beginning on April 1, 1998 and ending on the
Revolving Commitment Date, the amount set opposite such Bank's name in the
table immediately below or as specified in the most recent Assignment
Agreement to which such Bank is a party, but as the same may be from time
to time reduced pursuant to Section 2.14:
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Bank Revolving Commitment Amount on and
---- ----------------------------------
after April 1, 1998
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First Bank National Association $45,000,000
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Bank of America Illinois $40,000,000
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First Union National Bank of $40,000,000
North Carolina
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"REVOLVING NOTE": A promissory note of the Borrower in the form of
Exhibit 1.1-2-4 hereto.
(b) The definition of "Co-Lead Manager" is deleted from Section 1.1
of the Credit Agreement, and a new definition of "Documentation Agent" is added
to Section 1.1 of the Credit Agreement, in appropriate alphabetical order, to
read in its entirety as follows:
"DOCUMENTATION AGENT": Each of Bank of American Illinois and First
Union National Bank of North Carolina.
(c) Section 2.6 of the Credit Agreement is amended to read in its
entirety as follows:
Section 2.6 REPAYMENT. On April 1, 1998, the Borrower shall pay
the amount, if any, by which the unpaid principal amount of all Advances
exceeds the Aggregate
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Revolving Commitment Amounts as of April 1, 1998. The unpaid principal
amount of all Advances, together with all accrued and unpaid interest
thereon, shall be due and payable on the Termination Date.
(d) Section 2.20 of the Credit Agreement is amended by deleting the
date "March 31, 1998" therefrom and inserting the date "March 31, 2000" in its
place.
(e) Sections 6.12 and 6.13 of the Credit Agreement are amended to
read in their entirety as follows:
Section 6.12 CONTINGENT LIABILITIES. The Borrower will not, and
will not permit any Subsidiary to, be or become liable on any Contingent
Obligations except: (i) Contingent Obligations existing on the date of
this Agreement and described on Exhibit 6.12-4; (ii) the Borrower's
guarantee of up to a percentage of Acceptance Partnership's Indebtedness
under the Acceptance Partnership Credit Agreement equal to PAI's percentage
ownership of Acceptance Partnership and the Borrower's guarantee of PAI's
obligation to make additional capital contributions to Acceptance
Partnership, PROVIDED that the Borrower's maximum liability under such
guarantee does not exceed $250,000,000 (with respect to loans) and
$50,000,000 (with respect to capital contributions); (iii) PAI's liability
as general partner for up to a percentage of Acceptance Partnership's
Indebtedness under the Acceptance Partnership Credit Agreement equal to
PAI's percentage ownership of Acceptance Partnership, PROVIDED that PAI's
maximum liability with respect thereto does not exceed $250,000,000; and
(iv) PAI's obligation to make additional capital contributions to
Acceptance Partnership, PROVIDED that the sum of such obligation, to the
extent quantified at any time, and all Investments in Acceptance
Partnership then existing does not exceed $50,000,000.
Section 6.13 TANGIBLE NET WORTH. The Borrower will not permit its
Tangible Net Worth at any time to be less than: (a) $50,000,000 at all
times until December 31, 1996; (b) $75,000,000 at all times on and after
December 31, 1996, until December 31, 1997; (b) $100,000,000 at all times
on and after December 31, 1997, until December 31, 1998; and
(d) $125,000,000 at all times on and after December 31, 1998.
(f) Section 9.6(c) of the Credit Agreement is amended by adding a new
sentence to the end thereof, to read in its entirety as follows:
If an Assignment Agreement is executed prior to April 1, 1998, it shall
specify the Revolving Commitment of the assigning Bank and the Assignee
both before and after April 1, 1998, and the Revolving Percentages of each
of the assigning Bank and the Assignee shall be the same before and after
April 1, 1998.
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(g) Exhibits 1.1-2 and 6.12 are deleted from the Credit Agreement and
new Exhibits 1.1-2-4 and 6.12-4, in the forms of Exhibits 1.1-2-4 and 6.12-4
attached hereto, are added to the Credit Agreement.
Section 3. CONDITIONS TO EFFECTIVENESS OF FOURTH AMENDMENT. The
Amendments contained in this Fourth Amendment shall not become effective until,
and shall become effective when, the Administrative Agent shall have received
each of the following, in sufficient number to distribute to each Bank.
(a) The Agent shall have received, with a counterpart for each Bank,
this Amendment, duly executed by the Borrower, the Banks and the Agent, and
consented to by the Guarantors;
(b) The Agent shall have received a Revolving Note in the form of
Exhibit 1.1-2-4 to this Amendment, duly executed by the Borrower, payable
to each Bank in the amount shown as that Bank's Revolving Commitment Amount
in clause (a) of the definition of that term in Section 1.1, as amended by
this Agreement (each, a "Replacement Revolving Note;" collectively as to
all the Banks, the "Replacement Revolving Notes");
(c) The Agent shall have received, with a counterpart for each Bank,
a copy of resolutions adopted by the Borrower, authorizing the execution,
delivery and performance of this Amendment and the Replacement Revolving
Notes by the Borrower, certified by the Borrower's secretary or assistant
secretary;
(d) The Agent shall have received, with a counterpart for each Bank,
a copy of resolutions adopted by each Guarantor, authorizing the execution,
delivery and performance of that Guarantor's consent to this Amendment,
certified by that Guarantor's secretary or assistant secretary;
(e) The Agent shall have received, with a counterpart for each Bank,
a certificate signed by the secretary or assistant secretary of the
Borrower certifying (i) as to the incumbency of the person or persons
authorized to execute and deliver on behalf of the Borrower this Amendment
and the Replacement Revolving Notes, and (ii) that the articles or
certificate of incorporation and bylaws of the Borrower have not been
repealed, rescinded, amended or otherwise modified since copies of the same
were delivered to the Banks on or about May 8, 1995, pursuant to Section
3.1 of the Credit Agreement;;
(f) The Agent shall have received, with a counterpart for each Bank,
a certificate signed by the secretary or assistant secretary of each
Guarantor certifying (i) as to the incumbency of the person or persons
authorized to execute and deliver on behalf of that Guarantor its consent
to this Amendment, and (ii) that the articles or certificate of
incorporation and bylaws of that Guarantor have not been repealed,
rescinded, amended
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or otherwise modified since copies of the same were delivered to the Banks
on or about (x) May 8, 1995, pursuant to Section 3.1 of the Credit
Agreement, or (y) the date such Guarantor became a Guarantor, pursuant to
Section 6.5 of the Credit Agreement;
(g) The Agent shall have received certificates of good standing for
the Borrower and each Guarantor, in the jurisdiction of its incorporation
or organization, in the State of Iowa (with respect to the Borrower), in
the State of Wisconsin (with respect to Polaris Real Estate Corporation),
in the State of Iowa (with respect to Polaris Real Estate Corporation of
Iowa), and in the State of Minnesota (with respect to Polaris Industries
Inc.), certified by the appropriate governmental officials as of a date not
more than 15 days prior to the date hereof;
(h) The Agent shall have received, for the account of each Bank, a
written opinion from Xxxxxx, Xxxxxxxx & Xxxxxx, P.A. covering the matters
set forth on Exhibit A attached hereto; and
(i) The Agent shall have received, with a counterpart for each Bank,
such other documents, instruments, approvals, and, if requested by the
Agent, certified duplicates of executed copies thereof, that the Agent may
reasonably request.
Upon execution and delivery by the Borrower of the Replacement Revolving Notes
and the satisfaction of all of the conditions specified in this Section 3: (i)
all amounts of principal and interest due and payable on those certain Revolving
Notes dated May 8, 1995, in the aggregate principal amount of $125,000,000,
shall be due and payable under the appropriate Replacement Revolving Notes; and
(ii) each reference to the Revolving Notes in the Credit Agreement, any Loan
Document or any other document related thereto shall be deemed to be a reference
to the Replacement Revolving Notes in the form of Exhibit 1.1-2-4 attached
hereto.
Section 4. ACKNOWLEDGMENT. The Borrower acknowledges and agrees that
its obligations to the Banks and the Administrative Agent under the Credit
Agreement, as amended hereby, and the Revolving Notes exist and are owing
without offset, defense or counterclaim assertable by the Borrower against the
Banks and the Administrative Agent.
Section 5. EFFECT OF FOURTH AMENDMENT; REPRESENTATIONS AND WARRANTIES;
NO WAIVER. The Banks, the Administrative Agent and the Borrower agree that
after this Fourth Amendment becomes effective, the Credit Agreement, as hereby
amended, shall remain in full force and effect. The Borrower represents and
warrants that on and as of the date hereof and after giving effect to this
Fourth Amendment: (i) all of the representations and warranties contained in
the Credit Agreement are correct and complete in all material respects as of the
date hereof, as though made on and as of such date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true and correct as of such earlier date; (ii) there will exist
no Default or Event of Default on such date; (iii) there has been no change in
any of the certificates or articles of incorporation, bylaws or partnership
agreements of the Borrower or any
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Guarantor since the Closing Date or (if later) the date such Guarantor became a
Guarantor; (iv) the Borrower has the power and legal right and authority to
enter into this Fourth Amendment; (v) neither this Fourth Amendment, nor the
agreements contained herein or therein contravene or constitute a default under
any agreement, instrument or indenture to which the Borrower is a party or
signatory or a provision of the Borrower's articles of incorporation or, to the
best of Borrower's knowledge, any other agreement or requirement of law; and
(vi) no consent, approval or authorization of or registration or declaration
with any Person, including but not limited to any governmental authority, is
required in connection with the execution and delivery by the Borrower of this
Fourth Amendment, or the performance of obligations of the Borrower herein or
therein described.
Section 6. INCORPORATION OF CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS
BY REFERENCE; RATIFICATION OF LOAN DOCUMENTS. Except as expressly modified
under this Fourth Amendment, all of the terms, conditions, provisions,
agreements, requirements, promises, obligations, duties, covenants and
representations of the Borrower under the Credit Agreement, the Revolving Notes
and any and all other documents and agreements entered into with respect to the
obligations under the Credit Agreement are incorporated herein by reference and
are hereby ratified and affirmed in all respects by the Borrower. All
references in the Credit Agreement to "this Agreement," "herein," "hereof," and
similar references, and all references in the other Loan Documents to the
"Credit Agreement," shall be deemed to refer to the Credit Agreement, as amended
by this Fourth Amendment.
Section 7. MERGER AND INTEGRATION, SUPERSEDING EFFECT. This Fourth
Amendment, from and after the date hereof, embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes and has merged into it all prior oral and written
agreements on the same subjects by and between the parties hereto with the
effect that this Fourth Amendment shall control.
Section 8. EXPENSES. As provided in Section 9.2 of the Credit
Agreement, the Borrower agrees to pay all of the expenses, including reasonable
attorneys' fees and expenses, incurred by the Administrative Agent in connection
with this Fourth Amendment.
Section 9. COUNTERPARTS. This Fourth Amendment may be executed in any
number of counterparts, and by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original but all such
counterparts together shall constitute but one and the same instrument.
Section 10. GOVERNING LAW. THE VALIDITY, CONSTRUCTION AND
ENFORCEABILITY OF THIS FOURTH AMENDMENT SHALL BE GOVERNED BY THE INTERNAL LAWS
OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES
THEREOF.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to
Credit Agreement to be executed as of the date and year first above written.
POLARIS INDUSTRIES INC., a Minnesota corporation
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, Vice President
FIRST BANK NATIONAL ASSOCIATION,
as Administrative Agent and a Bank
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Commercial Banking Officer
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BANK OF AMERICA ILLINOIS,
as a Documentation Agent and a Bank
By: /s/ R. Xxx Xxxxxxxxx
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Name: R. Xxx Xxxxxxxxx
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Title: Managing Director
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FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as a Documentation Agent
and a Bank
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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