SIXTH AMENDMENT TO
CREDIT AGREEMENT
This Sixth Amendment to Credit Agreement, dated as of December 7, 1998
("Sixth Amendment"), is made by and between POLARIS INDUSTRIES INC., a
Minnesota corporation (the "Borrower"); U.S. BANK NATIONAL ASSOCIATION, formerly
known as FIRST BANK NATIONAL ASSOCIATION, BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, formerly known as BANK OF AMERICA ILLINOIS and FIRST UNION
NATIONAL BANK, formerly known as FIRST UNION NATIONAL BANK OF NORTH CAROLINA
(collectively, the "Banks"); and U.S. 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, Third Amendment to Credit
Agreement dated as of September 30, 0000, Xxxxxx Xxxxxxxxx to Credit Agreement
dated as of March 31, 1997 and Fifth Amendment to Credit Agreement dated as of
August 24, 1998 (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 to reflect the formation of
a new subsidiary (the "New Subsidiary") by the Borrower, subject to the terms
and conditions of the Credit Agreement, and to allow the Subsidiaries to
guarantee the obligations of the Borrower under interest rate protection
agreements, 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 definition of "Guarantors" in Section 1.1 of the Credit
Agreement is amended to read in its 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, Polaris Sales Inc. and any
Additional Guarantors.
(b) Section 6.12 of the Credit Agreement is amended in its entirety
to read 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; (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; and (v) the guarantee by the Subsidiaries of the Borrower's
obligations under interest rate protection agreements.
(c) Exhibit 4.19 is deleted from the Credit Agreement and new Exhibit
4.19-6, in the form of Exhibit 4.19-6 attached hereto, is added to the Credit
Agreement.
Section 3. CONDITIONS TO EFFECTIVENESS OF SIXTH AMENDMENT. The
Amendments contained in this Sixth 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 (except the New Subsidiary);
(b) 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 by the Borrower, and authorizing
the formation of the New Subsidiary and the transfer of
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certain assets of the Borrower thereto, 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 (except the New
Subsidiary), 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 (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 (except the New Subsidiary) 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 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 with a counterpart for each Bank, a
copy of the corporate resolution of the New Subsidiary authorizing the
execution, delivery and performance of its Guaranty, certified as of the
date of execution thereof by the Secretary or an Assistant Secretary of the
New Subsidiary.
(h) The Agent shall have received with a counterpart for each Bank,
an incumbency certificate showing the names and titles and bearing the
signatures of the officers of the New Subsidiary authorized to execute the
Guaranty, certified as of the date of execution thereof by the Secretary or
an Assistant Secretary of the New Subsidiary.
(i) A copy of the Articles of Incorporation of the New Subsidiary,
with all amendments thereto, certified by the appropriate governmental
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official of the jurisdiction of its incorporation as of a date not more
than 15 days prior to the date of this Sixth Amendment.
(j) A certificate of good standing for the New Subsidiary in the
jurisdiction of its incorporation certified by the appropriate governmental
official as of a date not more than 15 days prior to the date of this Sixth
Amendment.
(k) A copy of the bylaws of the New Subsidiary certified as of the
date of this Sixth Amendment by the Secretary or an Assistant Secretary of
the New Subsidiary.
(l) The Agent shall have received with a counterpart for each Bank,
the Guaranty of the New Subsidiary duly executed by an authorized officer
of the same.
(m) 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
(n) 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.
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 SIXTH AMENDMENT; REPRESENTATIONS AND WARRANTIES;
NO WAIVER. The Banks, the Administrative Agent and the Borrower agree that
after this Sixth 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 Sixth
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 except as waived herein; (iii) there
has been no change in any of the certificates or articles of incorporation,
bylaws or partnership agreements of the Borrower or any Guarantor since the
Closing Date or (if later) the date such
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Guarantor became a Guarantor; (iv) the Borrower has the power and legal right
and authority to enter into this Sixth Amendment; (v) neither this Sixth
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 the 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 Sixth 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 Sixth 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 Sixth Amendment.
Section 7. MERGER AND INTEGRATION, SUPERSEDING EFFECT. This Sixth
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 Sixth 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 Sixth Amendment.
Section 9. COUNTERPARTS. This Sixth 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 SIXTH AMENDMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES
THEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Sixth 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
U.S. 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 Assistant Vice President
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as a
Documentation Agent and a Bank
By /s/ Xxxxxxxx Xxxx
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Name Xxxxxxxx Xxxx
------------------------------------
Title Vice President
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FIRST UNION NATIONAL BANK, as a Documentation
Agent and a Bank
By /s/ C. Xxxxxxx Xxxxxx
------------------------------------
Name C. Xxxxxxx Xxxxxx
------------------------------------
Title SVP
-----------------------------------
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