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EXHIBIT 4(c)(5)
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of March 14, 1997,
by and among Titan Wheel International, Inc. (the "Company"), Titan Tire
Corporation, an Illinois corporation ("Titan Tire"), the banks party to the
Credit Agreement (as such term is hereinafter defined) and Xxxxxx Trust and
Savings Bank, as Agent (the "Agent"). Capitalized terms used herein without
definition shall have the same meanings herein as ascribed to such terms in the
Credit Agreement.
WITNESSETH THAT:
WHEREAS, the Borrowers, the Agent and the Banks are party to that
certain Credit Agreement dated as of September 19, 1996 (together with all
exhibits, schedules, attachments and appendices thereto, the "Credit
Agreement"); and
WHEREAS, the Borrowers have requested that the Credit Agreement be
amended, among other things, to (i) increase the amount of the Revolving
Commitments from $115,000,000 to $200,000,000, (ii) add Titan Tire as a joint
and several Borrower under the Credit Agreement, (iii) eliminate the Term
Credit and (iv) provide for the possibility of a Wholly-owned Domestic
Subsidiary of the Company (which Subsidiary will, among other things, act as a
holding company for the wheel related assets of the Company) to become a
Borrower under the Credit Agreement (such Domestic Subsidiary being referred to
herein as "Titan Wheel"); and
WHEREAS, the Banks are willing to so amend the Credit Agreement
pursuant to the terms and conditions of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrowers, the Banks and the
Agent hereby agree as follows:
1. The following definitions set forth in Section 7.1 of
the Credit Agreement are hereby deleted in their entirety: "Committed
Revolving Loan", "Revolving Commitments", "Committed Revolving Note",
"Committed Term Note", "Convertible Subordinated Notes", "Leverage
Ratio", "Term Commitments", "Titan Tire Indebtedness", "Revolving Loans"
and "L/C Commitment".
2. The following definitions set forth in Section 7.1 of
the Credit Agreement are hereby amended in their entirety to be and to
read as follows:
"Committed Loans" is defined in Section 1.1 hereof.
"Commitments" is defined in Section 1.1 hereof.
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"Committed Loan Note" is defined in Section 4.5(a) hereof.
"Original Dollar Amount" means (i) the amount of any
Obligation, if such Obligation is denominated in U.S. Dollars, (ii) in
relation to any Loan, Reimbursement Obligation or Letter of Credit
denominated in an Agreement Currency, the U.S. Dollar Equivalent of such
Obligation as of the day such amount is to be computed pursuant to
Section 2.4 hereof and (iii) in relation to any other Obligation
denominated in an Agreement Currency, the U.S. Dollar Equivalent of such
Obligation on the day such amount is being computed.
"Permitted Company Redemption" shall mean the redemption by
the Company after the date of the First Amendment of not more than
8,000,000 (on a cumulative basis on and after such date) shares of the
issued and outstanding common stock which constitutes Voting Stock of
the Company on such date on a fully diluted basis provided the amount
expended on and after such date hereof for such redemptions aggregates
(on a cumulative basis after such date) not more than $100,000,000.
"Subordinated Debt" means all unsecured Debt of the Company
that is expressly subordinated and made junior to the payment and
performance in full of the obligations of the Company hereunder to the
Banks and Agent, and evidenced by a subordination agreement or other
written instrument approved by the Agent and the Required Banks in their
sole discretion, pursuant to documentation and containing interest
rates, payment terms, maturities, amortization schedules, covenants,
defaults, remedies, subordination provisions and other material terms in
each case in form and substance satisfactory to the Agent and Required
Banks in their discretion.
"Subsidiary Borrower" means Titan Wheel and/or Irish Borrower,
as the context may require.
"Termination Date" means March 14, 2002 or such earlier date on
which the Commitments are terminated in whole pursuant to Sections 4.6,
4.7, 11.2 or 11.3 hereof.
"Titan Tire" means Titan Tire Corporation, an Illinois
corporation.
3. Section 7.1 of the Credit Agrement is hereby amended by
inserting the following definitions in their proper alphabetical order:
"First Amendment" means that certain First Amendment to Credit
Agreement dated as of March 14, 1997 by and among the Borrowers, the
Agent and the Banks.
"Irish Borrower" means any one Wholly-owned Subsidiary of the
Company organized and existing under the laws of Ireland.
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"L/C Sub-Limit" means $30,000,000.
"Non-Guaranteeing Domestic Subsidiaries" means as of any time,
each Domestic Subsidiary (other than a Restricted Subsidiary) which is
not then obligated on a Subsidiary Guarantee Agreement, whether because
such Domestic Subsidiary is not required to provide a Subsidiary
Guarantee Agreement or has been released from its obligations under a
Subsidiary Guarantee Agreement it had previously delivered.
"Titan Wheel" means a direct Wholly-owned Domestic Subsidiary of the
Company to be formed which will, among other things, act as a holding
company for the wheel related assets of the Company.
"Total Assets" means, without duplication on a consolidated basis,
assets of the Company and its Subsidiaries (excluding Restricted
Subsidiaries) as determined in accordance with GAAP.
4. The definition of "Change of Control Event" appearing in
Section 7.1 of the Credit Agreement is hereby amended by inserting the
following sentence at the end of such definition:
"Notwithstanding anything in this definition to the contrary, Xxxxxx and
Masco Tech, Inc., a Delaware corporation, may at any time own any amount
of the securities of the Company and such ownership shall not be deemed
a "Change of Control Event".
5. The definition of "Restricted Subsidiary" appearing in Section
7.1 of the Credit Agreement is hereby amended by inserting the following
sentence at the end of such definition:
"The Company shall not designate any Borrower as a Restricted
Subsidiary, and no Borrower shall be a Restricted Subsidiary."
6. The Credit Agreement is hereby amended by changing each and
every reference in the Credit Agreement (after giving effect to Section 1 of
this Amendment) to (i) "Committed Revolving Loan" and "Committed Revolving
Loans" to hereinafter be references to "Committed Loan" and "Committed
Loans", (ii) "Revolving Commitment" and "Revolving Commitments" to
hereinafter be references to "Commitment" and "Commitments", (iii) "Committed
Revolving Note", and "Committed Revolving Notes" to hereinafter be references
to "Committed Loan Note" and "Committed Loan Notes", (iv) "L/C Commitment" to
hereinafter be a reference to "L/C Sub-Limit" and (v) "Revolving Loan" and
"Revolving Loans" to hereinafter be references to "Loan" and "Loans".
7. The first paragraph of the Credit Agreement is hereby amended
in its entirety to be and to read as follows:
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The undersigned, Titan Wheel International, Inc., an Illinois
corporation (the "Company"), Titan Tire and Subsidiary Borrower (the
Company, Titan Tire and Subsidiary Borrower being hereinafter referred
to collectively as the "Borrowers" and individually as a "Borrower"),
each applies to you for your several commitments, subject to all the
terms and conditions hereof and on the basis of the representations and
warranties hereinafter set forth, to make available to each Borrower a
committed revolving facility for loans and letters of credit and a
discretionary bid facility available solely for loans, all as more fully
hereinafter set forth. Each of you is hereinafter referred to as "Bank",
all of you are hereinafter referred to collectively as the "Banks" and
Xxxxxx Trust and Savings Bank ("Xxxxxx Bank") in its capacity as agent
hereunder is hereinafter referred to as the "Agent".
8. Section 1.1 of the Credit Agreement is hereby amended by (i)
changing the amount "$115,000,000" set forth in such section to "$200,000,000";
(ii) deleting the words "on the applicable signature page hereof" in the first
sentence of such section and substituting therefor the words "on the applicable
signature page of the First Amendment" and (iii) deleting in its entirety the
last sentence of such section.
9. Section 1.2 of the Credit Agreement is hereby amended in its
entirety to be and to read as follows:
Section 1.2 Internationally Omitted.
10. Section 2.1(d) of the Credit Agreement is hereby amended by
deleting in its entirety the first sentence of such section.
11. The second sentence of Section 2.3(a) of the Credit Agreement
is hereby amended in its entirety to be and read as follows:
Each such notice shall specify the date of the requested Borrowing
(which shall be a Business Day), the amount of the requested Borrowing,
the type of Loans to comprise such Borrowing, the currency in which such
Loans are to be denominated if such Borrowing is to be comprised of
Eurocurrency Loans denominated in an Alternative Currency, the name of
the Borrower on whose behalf such Borrowing is being requested and, if
such Borrowing is to be comprised of Fixed Rate Loans, the Interest
Period applicable thereto.
12. Section 4.3(a) of the Credit Agreement is hereby amended in its
entirety to be and to read as follows:
(a) Committed Loans. Each Borrower shall have the privilege of
prepaying without premium or penalty any Borrowing of Domestic Rate
Loans (i) in whole or in part (but, if in part, then in an amount not
less than $500,000 and in integral multiples of $100,000) and (ii) at
any time upon prior notice to the Agent (which shall advise each Bank
thereof promptly in writing
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thereafter), such prepayment to be made by the payment of the principal
amount to be prepaid and accrued interest thereon to the date fixed for
prepayment. The Borrower may not prepay any Fixed Rate Loan before its
maturity.
13. Section 4.5(a) and (b) of the Credit Agreement are hereby
amended in their entirety to be and to read as follows:
(a)(i) All Committed Loans made to the Company and Titan Tire
by a Bank prior to the date a Subsidiary Borrower has delivered the
documents required to become a Borrower under this Agreement shall be
evidenced by a promissory note of the Company and Titan Tire, jointly
and severally, in the form of Exhibit A-1 hereto (individually, along
with any substitute promissory note delivered pursuant to clause (a)(ii)
below, a "Committed Note" and collectively the "Committed Notes"), each
such Committed Note to be dated the date of the First Amendment, payable
to the order of the applicable Bank and otherwise in the form of Exhibit
A-1 hereto; (ii) All Committed Loans made to the Borrowers by a Bank on
and after the date a Subsidiary Borrower has delivered the documents
required to become a Borrower under this Agreement shall be evidenced by
a Committed Note of the Borrowers (including each Subsidiary Borrower
which already is, or is then becoming, a Borrower), jointly and
severally, in the form of Exhibit AA-1 hereto, each such Committed Note
to be dated and delivered the date such Subsidiary Borrower becomes a
Borrower hereunder, payable to the order of the applicable Bank and
otherwise in the form of Exhibit AA-1 hereto. Each Bank, upon its
receipt of the Committed Note to be delivered pursuant to clause (a)(ii)
above for the addition of a Subsidiary Borrower to the existing
Borrowers, shall return to the Company the Committed Note it had
previously received from such existing Borrowers pursuant to clause
(a)(i) or (a)(ii) above, as the case may be, marked canceled.
(b) Intentionally Omitted.
14. Section 4.6 of the Credit Agreement is hereby amended in its
entirety to be and to read as follows:
The Company shall have the right at any time and from time to
time, upon three (3) Business Days' prior written notice to the Agent,
to terminate without premium or penalty, in whole or in part, the
Commitments, any partial termination to be made in an amount not less
than $1,000,000 or any larger amount that is an integral multiple of
$1,000,000, and to reduce ratably each Bank's Commitment; provided that
the Commitments may not be reduced to an amount less than the aggregate
Original Dollar Amount of Loans (whether Committed Loans or Bid Loans)
and L/C Obligations then outstanding. Any termination of Commitments
pursuant of this Section 4.6 may not be reinstated. No Facility Fee
shall accrue on any portion of the Commitments that has been
terminated.
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15. Section 4.7(b) of the Credit Agreement is hereby amended in its
entirety to be and to read as follows:
(b) If the aggregate Original Dollar Amount of outstanding
Loans and L/C Obligations shall at any time for any reason exceed the
Commitments then in effect, the Company shall, within three (3) Business
Days, pay the amount of such excess to the Agent for the ratable benefit
of the Banks as a prepayment of Loans (to be applied to such Loan as the
Company shall direct at the time of such payment) and, if necessary, a
prefunding of Letters of Credit. Immediately upon determining the need
to make any such prepayment the Company shall notify the Agent of such
required prepayment. Each such prepayment shall be accompanied by a
payment of all accrued and unpaid interest on the Loans prepaid and
shall be subject to Section 4.8 hereof.
16. Section 4.9(b) of the Credit Agreement is hereby amended in its
entirety to be and to read as follows:
(b) Subsidiary Borrower and Titan Tire each hereby irrevocably
appoints the Company as its agent hereunder to make any and all requests
on its behalf, including without limitation requests under Section 1, 2
or 3 hereof for Loans or Letters of Credit to be made to it, to give and
receive any and all notices under the Loan Documents, to accept amounts
on its behalf and to take any other action contemplated by the Loan
Documents with respect to credit extended to it hereunder. The Agent and
the Banks shall be entitled to conclusively presume that any action by
the Company under the Loan Documents is taken on behalf of Titan Tire
and Subsidiary Borrower, whether or not the Company so indicates and
that any notice delivered to the Company has also been delivered to
Titan Tire and Subsidiary Borrower.
17. Section 5.3 of the Credit Agreement is hereby amended in its
entirety to be and to read as follows:
Section 5.3. Intentionally Omitted.
18. Section 5.5 of the Credit Agreement is hereby amended in its
entirety to be and to read as follows:
The Borrowers shall pay to the Agent for the sole account of the Agent
the fees agreed to between the Agent and the Borrowers from time to time
in writing.
19. Section 6.1(c) of the Credit Agreement is hereby amended in its
entirety to be and to read as follows:
(c) third, to the payment of (i) the principal of the Notes and
(ii) after all amounts in clause (i) have been paid, to any liabilities
in respect of unpaid drawings under the Letters of Credit and to the
Agent to be held as collateral
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security for any undrawn Letters of Credit (until the Agent is holding
an amount of cash equal to the then outstanding amount of all such
Letters of Credit), the aggregate amount paid to or held as collateral
security for the Banks to be allocated pro rata as among the Banks in
accord with the then respective aggregate unpaid principal balances of
the Notes as to which such payments relate and the Letters of Credit;
20. Section 9.2(d) of the Credit Agreement is hereby amended in its
entirety to be and to read as follows:
(d) After giving effect to the Credit Event, the aggregate
Original Dollar Amount of (i) all Loans (whether Committed Loans or Bid
Loans) and L/C Obligations outstanding hereunder shall not exceed the
Commitments, (ii) all Bid Loans outstanding hereunder shall not exceed
the lesser of the unused Commitments or the Bid Loan Limit and (iii) all
L/C Obligations shall not exceed the L/C Sub-Limit;
21. Section 10.6 of the Credit Agreement is hereby amended in its
entirety to be and to read as follows:
Section 10.6 Intentionally Omitted.
22. Section 10.7 of the Credit Agreement is hereby amended in its
entirety to be and to read as follows:
The Company will at all times maintain its Tangible Net Worth at
not less than the Required Amount. For purposes of this Section, the
term "Required Amount" shall mean the Base Amount plus (i) 50% of
Consolidated Net Income for each fiscal year (if positive for such year)
commencing with the fiscal year beginning on January 1, 1997 and (ii)
75% of the cash proceeds from a public offering of the common capital
stock or preferred stock of the Company after the date of the First
Amendment (such proceeds to be net of seller's and underwriting
discounts, accounting, legal and printing fees and other costs directly
incurred and payable as a result of such offering and also net of
repurchases). For purposes of this Section, the term "Base Amount" shall
mean as of any time, the greater of (i) $130,000,000 or (ii) the
difference between $180,000,000 and the aggregate amount theretofore
expended (on a cumulative basis after the date of the First Amendment)
for Permitted Company Redemptions.
23. Section 10.8 of the Credit Agreement is hereby amended in its
entirety to be and to read as follows:
The Company will as of the end of each fiscal quarter maintain
an Interest Coverage Ratio for the four fiscal quarters then ended of
not less than 1.75 to 1.0.
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24. Section 10.9 of the Credit Agreement is hereby amended in its
entirety to be and to read as follows:
The Company will as of the end of each fiscal quarter maintain
the Debt to Earnings Ratio at not more than 3.5 to 1.0, provided, that
if the Company has as of the end of a fiscal quarter Subordinated Debt
outstanding which was issued after the date of the First Amendment in an
aggregate amount in excess of $75,000,000, then as of the end of each
such fiscal quarter the Company will maintain the Debt to Earnings Ratio
at not more than 4.0 to 1.0.
25. Section 10.11 of the Credit Agreement is hereby amended in its
entirety to be and to read as follows:
Neither the Company nor any Subsidiary will create, incur,
assume, guarantee or be or remain liable, contingently or otherwise,
with respect to any Indebtedness other than:
(a) Indebtedness to the Banks and the Agent arising under any
of the Loan Documents;
(b) current liabilities incurred in the ordinary course of
business not incurred through (i) the borrowing of money, or (ii) the
obtaining of credit except for credit on an open account basis customarily
extended and in fact extended in connection with normal purchases of goods
and services;
(c) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the
extent that payment therefor shall not at the time be required to be
made in accordance with the provisions of Section 10.3 hereof;
(d) Indebtedness in respect of judgments or awards, provided
that in the case of such Indebtedness which in the aggregate exceed
$4,000,000, (other than any judgment for which a financially sound and
reputable insurer has admitted coverage) such judgments or awards have
been in force for less than the applicable period for taking an appeal
so long as execution is not levied thereunder or in respect of which the
Company shall at the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay of execution shall
have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and
warranties of products or services and similar transactions, in each
case incurred in the ordinary course of business;
(f) Subordinated Debt in an aggregate amount at any one time
outstanding not to exceed $150,000,000;
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(g) unsecured Indebtedness set forth on Schedule 10.11(g)
hereof;
(h) Indebtedness of Wholly-owned Subsidiaries to the Company or
to other Wholly-owned Subsidiaries (other than Restricted Subsidiaries);
and
(i) Indebtedness not otherwise permitted by this Section
aggregating not more than $50,000,000 at any one time outstanding;
(j) Indebtedness of Restricted Subsidiaries so long as such
Indebtedness is non-recourse to the Company and any of its Subsidiaries
(other than Restricted Subsidiaries); and
(k) additional Subordinated Debt of Titan Tire to PATC in an
amount not to exceed $20,150,000 at any time outstanding.
26. The first paragraph of Section 10.14(a) of the Credit Agreement
is hereby amended in its entirety to be and to read as follows:
The Company will not, and will not permit any Subsidiary to,
sell, transfer, of or otherwise dispose of all or any substantial part
of its property, assets or business, or in any event sell or discount
(with or without recourse) any of its notes or accounts receivable or be
or become liable as lessee of any property theretofore owned by the
Company or any Subsidiary; provided, however, that this Section shall
not apply to nor prohibit:
(i) the sale by the Company or any Subsidiary of assets
no longer used or useful in the conduct of their respective
businesses or from selling inventory in the ordinary course of
its business; or
(ii) the transfer of any such assets to Titan Wheel in
exchange for all issued and outstanding securities or as an
additional contribution to capital thereof, provided that in
compliance with the provisions of this Agreement, Titan Wheel is
(or contemporaneously with such transfer becomes) a Borrower
hereunder at the time of such transfer.
27. The second sentence of Section 10.15 is hereby amended by
striking the phrase "unless the Required Banks otherwise agree" appearing
therein and substituting therefor the phrase "unless the following provisions of
this Section otherwise provide".
28. Section 10.15 to the Credit Agreement is hereby further amended
by striking the next to last sentence of such Section and inserting the
following immediately at the end thereof:
"Notwithstanding anything herein to the contrary, no Subsidiary
Guarantee Agreement shall be required from any Domestic Subsidiary if
and so long as (i)
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such Domestic Subsidiary is not a Borrower and (ii) either (x) the
aggregate amount of assets of all the Non-Guaranteeing Domestic
Subsidiaries (including such Domestic Subsidiary) as of the time of
determining whether such guaranty is required would not exceed 5% of
Total Assets as of the close of each of the then four most recently
completed fiscal quarters of the Company or (y) (1) the Required Banks
agree in writing not to require such guaranty and (2) the aggregate
amount of assets of all the Non-Guaranteeing Domestic Subsidiaries
(including such Domestic Subsidiary) as of the time of determining
whether such guaranty is required would not exceed 10% of Total Assets
as of the close of each of the then four most recently completed fiscal
quarters of the Company (it being understood and agreed that the consent
of all the Banks is required to amend this sentence)."
29. Section 10.15 of the Credit Agreement is hereby amended by
striking the parenthetical "(other than Sirmac Officine Meccaniche SpA)"
appearing in the last sentence of such Section.
30. Section 10.16 of the Credit Agreement is hereby amended by
deleting the words "the Company will at all times remain an operating company,
and" from such section.
31. Section 15.12 of the Credit Agreement is hereby amended by
inserting the following words before the semi-colon at the end of clause (iv)
of such subsection:", provided, that so long as an Event of Default has
occurred and is continuing, the consent of each Borrower to such an assignment
shall not be required".
32. A new Section 15.13(iii) is hereby added to the Credit
Agreement to be and to read as follows.
(iii) no amendment or waiver pursuant to this Section 15.13
shall, without the prior written consent of each Bank, materially modify
Section 14 hereof or a Subsidiary Guarantee Agreement or release a
Subsidiary from its Subsidiary Guarantee Agreement or release the stock
pledged in lieu of such a guaranty; provided, however, that (i) the
Agent may upon the Company's request, without the consent of any other
Bank, release a Subsidiary from its Subsidiary Guarantee Agreement or
release the stock pledged in lieu of such a guaranty if (x) at the time
of such release and immediately after giving effect thereto, such
Subsidiary would not have been required under Section 10.15 hereof to
provide such a guaranty or pledge if one had not already been delivered,
(y) no consent from any Bank was required under Section 10.15 to waive
the requirement that such Subsidiary provide a guaranty or pledge and
(z) no Default or Event of Default would occur or be continuing, and
(ii) if the Required Banks so consent in writing, the Agent may release
a Subsidiary from its Subsidiary Guarantee Agreement or release the
stock pledged in lieu of such a guaranty if (x) the Required Banks would
in accordance with Section 10.15 hereof then have the right thereunder
to waive the requirement for such
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Subsidiary's delivery of such guaranty or pledge had one not already
been delivered and (y) no Default or Event of Default shall occur or be
continuing at the time of such release or immediately after giving
effect thereto.
33. Exhibits X-0, XX-0, X, XX and H of the Credit Agreement are
hereby deleted in their entirety and Exhibits X-0, XX-0, X, XX and H attached to
this Amendment are hereby substituted therefor.
34. Exhibit A-2 and Exhibit AA-2 of the Credit Agreement are
hereby deleted in their entirety.
35. An amended Schedule 8.2 and a new Schedule 10.11(g) each in
the form attached to this First Amendment as Schedule 8.2 and Schedule 10.11(g),
respectively is hereby made part of the Credit Agreement.
36. The first sentence of the second paragraph of Exhibit M is
hereby amended in its entirety to be and to read as follows:
The undersigned [NAME OF APPLICABLE SUBSIDIARY BORROWER], a corporation
organized and existing under the laws of _________________, hereby
elects to be a Borrower for purposes of the Credit Agreement, effective
from the date hereof.
Simultaneously with the effectiveness of this Amendment, the Company
agrees that it will repay all Committed Loans which were outstanding immediately
prior to the effectiveness of this Amendment and that such prepayment shall be
subject to Section 4.8 of the Credit Agreement.
Except as expressly amended hereby, the Credit Agreement and all other
documents executed in connection therewith shall remain unaltered and in full
force and effect. The Credit Agreement, as amended hereby, and all rights and
powers created thereby and thereunder or under such other documents are in all
respects ratified and confirmed. From and after the date hereof, the Credit
Agreement shall be deemed to be amended and modified as herein provided, but,
except as so amended and modified, the Credit Agreement shall continue in full
force and effect and the Credit Agreement and this Amendment shall be read,
taken and construed as one and the same instrument. On and after the date
hereof the terms "Agreement" as used in the Credit Agreement and all other
references to the Credit Agreement and the documents executed in connection
therewith and/or herewith or any other instrument, document or writing executed
by the Borrowers or any other person or furnished to the Agent by the Borrowers,
or any other person in connection herewith or therewith shall mean the Credit
Agreement as hereby amended. Upon its delivery of this Amendment, Titan Tire
shall be conclusively deemed to be a direct signatory to the Credit Agreement.
Each Borrower represents and warrants to the Agent and the Banks that
(i) this Amendment has been duly authorized, executed and delivered on its
behalf, and the Credit
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Agreement, as amended and supplemented hereby constitute its legal, valid and
binding obligation enforceable against it in accordance with its terms, except
to the extent that a remedy or default may be determined by a court of
competent jurisdiction to constitute a penalty and except to the extent that
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights or by general
principles of equity, (ii) no Default or Event of Default has occurred and is
continuing under the Credit Agreement, (iii) the representations and warranties
set forth in Section 8 of the Credit Agreement are true and correct as of the
date hereof and (iv) as of the date hereof the Company and Titan Tire are the
only Borrowers under the Credit Agreement.
This Amendment shall not be effective until:
(a) The Agent shall have received for each Bank the
favorable written opinion of Schmiedeskamp, Robertson, Neu & Xxxxxxxx,
counsel to the Company, Titan Tire and the Guarantors, in form and
substance satisfactory to the Required Banks;
(b) The Agent shall have received for each Bank (i)
certified copies of resolutions of the Board of Directors of the
Company, Titan Tire and each Guarantor authorizing the execution,
delivery and performance of, and indicating the authorized signers of,
the Loan Documents to which it is a party and all other documents
relating thereto and the specimen signatures of such signers, (ii)
copies of any amendments or revisions since September 19, 1996 to either
the Articles of Incorporation or by-laws for the Company, Titan Tire and
each Guarantor with any such amendment or revision certified to by their
Secretary or other appropriate officer, together with a certificate of
good standing certified by the appropriate governmental officer in the
jurisdiction of its incorporation and (iii) the duly executed and
delivered Loan Documents (other than Loan Documents which are not
required to be delivered until the Subsidiary Borrower elects to become
a Borrower hereunder), including the new Notes which are to be executed
in connection with this Amendment;
(c) The Agent shall have received a Guarantor's Consent in
the form of Exhibit C hereto from each Subsidiary who has executed a
guarantee;
(d) The Agent shall have received from Titan Tire a list of
its Authorized Representatives and from the Company any changes to its
list of its Authorized Representatives since September 19, 1996;
(e) The Agent shall have received for the account of each
Bank a nonrefundable amendment fee equal to 0.10% of such Bank's
Commitment; and
(f) The Agent shall have received for each Bank copies of
the Company's preliminary December 31, 1996 balance sheet.
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Promptly after this Amendment becomes effective, each Bank shall return
to the Company the Notes, marked canceled, which were delivered to such Bank by
the Company at the closing of the Credit Agreement.
This Amendment may be signed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instruments.
Except as otherwise specified herein, this Amendment embodies the
entire agreement and understanding between the Borrowers, the Banks and the
Agent with respect to the subject matter hereof and supersedes all prior
agreements, consents and understandings relating to such subject matter.
This Amendment shall be binding upon and inure to the benefit of the
Banks and the Agent their successors and assigns and the Borrowers and their
permitted successors and assigns.
This Amendment shall be governed by the internal laws of the State of
Illinois.
[Remainder of Page Intentionally Left Blank]
-13-
14
IN WITNESS WHEREOF, the Borrowers, the Banks and the Agent have caused
this Amendment to be duly executed as of the date first hereinabove written.
TITAN WHEEL INTERNATIONAL, INC.
By XXXX X. XXXXXXXXX
-----------------------
Name: Xxxx X. Hakamack
---------------------
Title: Vice President Finance/Treasurer
TITAN TIRE CORPORATION
By XXXX X. XXXXXXXXX
------------------------
Name: Xxxx X. Xxxxxxxxx
----------------------
Title: Vice President Finance/Treasurer
-14-
15
000 Xxxx Xxxxxx Xxxxxx XXXXXX TRUST AND SAVINGS BANK,
Xxxxxxx, Xxxxxxxx 00000 in its individual capacity as a
Attention: Xxxxx X. Xxxxxx Bank and as Agent
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
By XXXXXXX X. XXXX
-----------------------
Commitment: $35,000,000 Name: Xxxxxxx X. Xxxx
-----------------
Title: Vice President
Lending Offices:
Domestic Rate Loans: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Eurocurrency Loans: Nassau Branch
c/o 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Bid Loans: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
CD Rate Loans: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
-15-
16
One First National Plaza THE FIRST NATIONAL BANK OF CHICAGO
Mail Suite 0088
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000 By: XXXX X. XXXXX
Telephone: (000) 000-0000 ------------------------
Name: Xxxx X. Xxxxx
Commitment: $35,000,000 ------------------
Title: Vice President
Lending Offices: ------------------
Domestic Rate Loans: One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Eurocurrency Loans: One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Bid Loans: One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
CD Rate Loans: One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
-16-
17
233 X. Xxxxxx Drive, Suite 2800 NATIONSBANK, N.A.
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000 By XXXX XXXXX XXXX
Telephone: (000) 000-0000 -----------------------
Name: Xxxx Xxxxx Xxxx
Commitment: $35,000,000 -------------------
Title: Vice-President
-------------------
Lending Offices:
Domestic Rate Loans: Independence Center
000 X. Xxxxx Xxxxxx
XX 1-001-15-03
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx
Eurocurrency Loans:
Independence Center
000 X. Xxxxx Xxxxxx
XX 1-001-15-03
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx
Bid Loans: Independence Center
000 X. Xxxxx Xxxxxx
XX 1-001-15-03
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx
CD Rate Loans: Independence Center
000 X. Xxxxx Xxxxxx
NC 1-001-15-03
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx
-17-
18
1 Midamerica Xxxxx XXXXXXXX XXXX
Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Block
Telecopy: (000) 000-0000 By XXXXXXX X. BLOCK
Telephone: (000) 000-0000 ---------------------------
Name: Xxxxxxx X. Block
Commitment: $25,000,000 ---------------------
Title: Vice President
---------------------
Lending Offices:
Domestic Rate Loans: Xxx XxxXxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Eurocurrency Loans: Xxx XxxXxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Bid Loans: Xxx XxxXxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
CD Rate Loans: Xxx XxxXxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
-18-
19
00 Xxxx Xxxxx XXXXXXXX XXXX, XXXXXXX
26th Floor - Mail Code 118
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Dash
Telecopy: (000) 000-0000 By XXXXX X. DASH
Telephone: (000) 000-0000 --------------------------------
Name: Xxxxx X. Dash
Commitment: $25,000,000 --------------------------
Title: Vice President
--------------------------
By XXXX X. XXXXXXX
--------------------------------
Name: Xxxx X. Xxxxxxx
--------------------------
Title: Assistant Vice President
--------------------------
Lending Offices:
Domestic Rate Loans: 00 Xxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Eurocurrency Loans: 00 Xxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Bid Loans: 00 Xxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
CD Rate Loans: 00 Xxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
-00-
00
000 Xxxxx XxXxxxx Xxxxxx XXX AMRO BANK N.V.
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxx Xxxxxxxxxx
Telecopy: (000) 000-0000 By XXXXX X. XXXXXXXX XX
Telephone: (000) 000-0000 ---------------------------------
Name: Xxxxx X. Xxxxxxxx XX
Commitment: $25,000,000 ----------------------------
Title: Vice President - Director
---------------------------
By XXXXXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxxxxx X. Xxxxxx
----------------------------
Title: Vice President
---------------------------
Lending Offices:
Domestic Rate Loans: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Eurocurrency Loans: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Bid Loans: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
CD Rate Loans: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
-20-
00
Xxxxxxx Xxxxxxxx XXX XXXX XX XXX XXXX
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X'Xxxx
Telecopy: (000) 000-0000 By: XXXXXXX X'XXXX
Telephone: (000) 000-0000 ----------------------------------
Name: Xxxxxxx X. X'Xxxx
Commitment: $20,000,000 -----------------------------
Title: Assistant Vice President
-----------------------------
Lending Offices:
Domestic Rate Loans: 0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Eurocurrency Loans: 0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bid Loans: 0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
CD Rates Loans: 0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
-21-
