AMENDED AND RESTATED CREDIT AGREEMENT (as amended by Amendments number 1 through 4, dated through January 23, 2010)
EXHIBIT 10.5
AMENDED AND RESTATED
CREDIT AGREEMENT
(as amended by Amendments number 1 through 4, dated through January 23, 2010)
CREDIT AGREEMENT
(as amended by Amendments number 1 through 4, dated through January 23, 2010)
THIS AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) was entered into as of June 1,
2006, by and between LINDSAY CORPORATION, a Delaware corporation f/k/a LINDSAY MANUFACTURING CO.
(“Borrower”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Bank”), and amended by Amendments number
1 through 4, dated through January 23, 2010.
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
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.
-1-
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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 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
-2-
(“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 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
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
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:
-3-
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 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 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
-4-
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 its financial condition as follows, for Borrower on
a consolidated basis with its consolidated subsidiaries, using generally accepted accounting
principles consistently applied and used consistently with prior practices (except to the extent
specified as follows or modified by the definitions herein):
(a) Current Ratio not less than 1.50 to 1.0 as of each fiscal quarter end, with “Current
Ratio” defined as total current assets divided by total current liabilities.
(b) Tangible Net Worth not less than $115,000,000.00 (the “TNW Requirement”) as of each fiscal
quarter end, beginning with the quarter ended February 28, 2010; the TNW Requirement shall be
increased at the end of each fiscal quarter, beginning with the quarter ended May 30, 2010, by an
amount equal to 25% of net income after taxes for such fiscal quarter (but shall not be reduced as
a result of any losses incurred during any such fiscal quarter); with “Tangible Net Worth” defined
as the aggregate of consolidated total stockholders’ equity plus subordinated debt less any
intangible assets.
(c) Consolidated Funded Debt to EBITDA not greater than 2.5 to 1.0 as of each fiscal quarter
end, 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 and its consolidated subsidiaries, as a liability as of such quarter end, and with
“EBITDA” defined, for the four fiscal quarters ending as of such quarter end, as net profit before
tax plus interest expense, depreciation expense and amortization expense for the Borrower and its
consolidated subsidiaries; 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 EBITDA, net profit (and all other amounts specified in the definition of 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.
(d) Consolidated Fixed Charge Coverage Ratio not less than 2.25 to 1.0 as of each fiscal
quarter end, with “Fixed Charge Coverage Ratio” defined as the quotient obtained by dividing (x),
for the four fiscal quarters ending as of such quarter end, the aggregate of net profit of the
Borrower and its consolidated subsidiaries 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 (y) the aggregate of the current
portion of long term debt (excluding balloon payments) and capitalized lease payments for the
Borrower and its consolidated subsidiaries as of such quarter end.
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 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
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:
-5-
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. 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 5.3. 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 5.4 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 a security for, any liabilities or obligations of any other person or entity, except (a)
any of the foregoing in favor of Bank, (b) limited recourse guaranties entered into in the ordinary
course of business in connection with customer financing transactions, and (c) guaranties entered
into on behalf of a subsidiary of Borrower in connection with vendor and supplier purchasing
transactions.
SECTION 5.5. 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 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 5.6. 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
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.
-6-
(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 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 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.
-7-
ARTICLE VII
MISCELLANEOUS
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 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,
-8-
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 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. §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
-9-
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
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
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.
-10-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day
and year first written above.
| LINDSAY CORPORATION f/k/a LINDSAY MANUFACTURING CO. |
XXXXX FARGO BANK, NATIONAL ASSOCIATION |
|||||||
| By: | /s/ Xxxxx X. Xxxxxxx
|
By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
Xxxxx X. Xxxxxxx, Chief Financial Officer |
Xxxxxxx X. Xxxxxxx, Relationship Manager |
|||||||
-11-
