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This SECOND AMENDMENT TO CREDIT AGREEMENT (this "
Amendment "), dated as of February 24, 2006, is entered
into by and among CASCADE CORPORATION, an Oregon corporation, (the
" Borrower "), the several financial institutions party as
of the date hereof to the Credit Amendment referred to below
(collectively called the " Lenders " and individually called
a "Lender"), and BANK OF AMERICA, N.A., as agent for itself and the
Lenders (in such capacity, the " Agent ").
RECITALS
A.
The Borrower, the Lenders and the Agent are parties to a Credit
Agreement, dated as of February 28, 2003 (as amended from time to
time, the " Credit Agreement ").
B.
Pursuant to the Credit Agreement, the Lenders have extended and are
continuing to extend certain credit facilities to the Borrower.
C.
The Borrower, the Agent and the Lenders desire to extend the
maturity date from February 28, 2006 to September 1,
2010, and make other changes to the terms and conditions of the
credit facilities.
D.
The Lenders are willing to amend the Credit Agreement, but only as
provided, and subject to the terms and conditions contained, in
this Amendment.
THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as
follows:
1.
Defined Terms . Unless otherwise defined herein, each
capitalized term used herein shall have the meaning assigned
thereto in the Credit Agreement.
2.
Amendment to Credit Agreement . Upon the effectiveness of,
and subject to the terms and conditions contained in, this
Amendment:
(a)
Section 1.1 is hereby amended to delete the definition of
"Consolidated Adjusted EBITDA" and replace such definition with the
following:
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"‘ Consolidated Adjusted EBITDA ’ means, for
any period, for the Borrower and its Subsidiaries on a consolidated
basis, an amount equal to Consolidated Net Income for such period
plus the following to the extent deducted in
calculating such Consolidated Net Income for such period: (a)
Consolidated Interest Charges (b) the provision for federal, state,
local and foreign income taxes payable by the Borrower and its
Subsidiaries and (c) the amount of depreciation and amortization
and other non-cash expense, including goodwill impairment,
derivative mark-to-market transactions, swap-related expenses,
expenses related to stock-based compensation, including but not
limited to stock options and
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stock appreciation rights, and other similar
non-cash items. In addition, ‘Consolidated Adjusted
EBITDA’ shall include the non-consolidated results for any
Permitted Acquisition made during the subject period, as adjusted
for items (a), (b) and (c) above."
(b)
Section 1.1 is hereby amended to delete the definition of
"Consolidated Interest Coverage Ratio" and replace such definition
with the following:
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"‘ Consolidated Fixed Charge Coverage Ratio ’
means, as of any date of determination, the ratio of
(a) Consolidated Adjusted EBITDA, less taxes paid in cash by
the Borrower and its Subsidiaries, less Thirteen Million Dollars
($13,000,000) (representing maintenance capital expenditures), less
dividends paid in cash, all for the period comprising the four
prior fiscal quarters ending on such date, to (b) Consolidated
Interest Charges paid in cash, plus consolidated principal payments
required of Borrower and its Subsidiaries during the subject
period."
(c)
Section 1.1 is hereby amended to delete the definition of "Maturity
Date" and replace such definition with the following:
(d)
Section 2.1(b) is hereby deleted and replaced with the
following:
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"At its option at any time prior to March 1, 2010, the
Borrower may seek to increase the Aggregate Commitments by up to an
aggregate amount of Fifty Million Dollars ($50,000,000) (resulting
in maximum Aggregate Commitments of Seventy-five Million Dollars
($75,000,000)) upon written notice to the Agent, which notice shall
specify the amount of any such increase and shall be delivered at a
time when no Default or Event of Default has occurred and is
continuing. The Borrower may make such a request on multiple
occasions and in any amount, provided such amount is within the
limitations provided above. The Agent, subject to the consent
of Borrower, which shall not be unreasonably withheld, may allocate
the increase (which may be declined by any Lender in its sole
discretion) in the Aggregate Commitments on either a ratable basis
to the Lenders or on a non pro-rata basis to one or more Lenders
and/or to other banks or entities reasonably acceptable to the
Agent and the Borrower. No increase in the Aggregate
Commitments shall become effective until the existing or new
Lenders extending such incremental Commitment Amount and the
Borrower shall have delivered to the Agent a document in form
reasonably satisfactory to the Agent pursuant to which any such
existing Lender states the amount of its Commitment increase, any
such new Lender states its
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Commitment Amount and agrees to assume and accept
the obligations and rights of Lender hereunder and the Borrower
accepts such incremental Commitments. The Lenders (new or
existing) shall accept an assignment from the existing Lenders, and
the existing Lenders shall make an assignment to the new or
existing Lender accepting a new or increased Commitment, of an
interest (or participation interest, as applicable) in all Loans
and other credit exposure in respect of the Aggregate Commitments
such that, after giving effect thereto, all Loans and all such
other credit exposure are held ratably by the Lenders in proportion
to their respective Commitments, as may be revised to accommodate
the increase in the Aggregate Commitments. Assignments
pursuant to the preceding sentence shall be made in exchange for
the principal amount assigned plus accrued and unpaid interest and
commitment and other fees. The Borrower shall make any payments
under Section 2.8(e) resulting from such assignments, and shall pay
the Lenders certain fees, including an arrangement fee, to be
determined by the Lenders at such time as the increase in Aggregate
Commitments is implemented."
(e)
Section 2.13(b) is hereby deleted and replaced with the following
with regard to this Amendment:
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"Borrower shall pay to Bank of America, as Agent for the
Lenders, an upfront fee in the amount of Fifty Thousand Dollars
($50,000), or twenty (20) basis points as applied to the Aggregate
Commitments, which shall be shared on a pro-rata basis by the
Lenders in accordance with their respective Percentage Interests.
This fee shall be due and payable at closing of this Amendment, and
shall be fully earned and non-refundable when paid. Any
exercise of the increase option as provided in Section 2.1(b) shall
require payment of any additional agency fee required under the Fee
Letter, as well as an additional upfront fee and arrangement fee to
be mutually agreed upon at the time of the request by the Agent and
Borrower."
(f)
Sections 6.13(a), (b) and (c) (Financial Covenants) are hereby
deleted and replaced with the following:
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"(a)
Consolidated Net Worth. Permit Consolidated Net Worth at
any time to be less than the sum of (a) an amount equal to 75%
of Borrower’s Consolidated Net Worth as of January 31,
2006, plus, (b) an amount equal to 50% of the Consolidated Net
Income earned in each full fiscal quarter ending after
January 31, 2006 (with no deduction for a net loss in any such
fiscal quarter), plus, (c) an amount equal to 100% of the
aggregate increases in Shareholders’ Equity of the Borrower
and its Subsidiaries after the
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date hereof by reason of the issuance and sale of
capital stock or other equity interests of the Borrower or
any Subsidiary (other than issuances to the Borrower or a
wholly-owned Subsidiary), including upon any conversion of debt
securities of the Borrower into such capital stock or other equity
interests.
(b)
Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio as of the end of any
fiscal quarter of the Borrower to be less than 1.50:1.00.
(c)
Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio at any time to be greater than 2.00:1.00."
(g) &n
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