Seventh Amendment to Loan Agreement by and among Cascade Corporation



 Exhibit 10.1 
 SEVENTH AMENDMENT TO LOAN AGREEMENT 
 This SEVENTH AMENDMENT TO LOAN
AGREEMENT (this “Amendment”), dated as of October 29, 2010, 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 Loan 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 Loan Agreement, dated as of February 28, 2003 (as amended from time to time, the “Loan Agreement”). 

B. Pursuant to the Loan Agreement, the Lenders have extended and are continuing to extend certain credit facilities to the Borrower.

 C. The Borrower desires to reduce the pricing applicable to the credit facilities extended to the Borrower pursuant to the
Loan Agreement. 
 D. The Agent and Lenders are willing to amend the Loan Agreement to reduce the pricing applicable to the
credit facilities extended to the Borrower, 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 Loan Agreement. 
 2. Amendment to Loan Agreement. Upon the effectiveness of, and subject to the terms and conditions
contained in, this Amendment, Section 1.1 (Certain Defined Terms) is hereby amended to delete the definition of “Applicable Interest Rate” and replace such definition with the following: 

“‘Applicable Interest Rate’ means the following percentages per annum, based upon the Consolidated
Leverage Ratio as set forth in the most recent Compliance Certificate received by the Agent pursuant to Section 6.10(c): 

  
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 Applicable Interest Rate 

 

									
	 Pricing
Level
	 	 Consolidated

Leverage Ratio
	 	 Commitment
Fee

(Basis Points)
	 	 Standby L/C
Fee and

Offshore
Rate +

(Basis Points)
	 	 Base Rate +

(Basis Points)

	 1
	 	33.00:1.00	 	45.0	 	275.0	 	0.0
	 2
	 	 32.00:1.00 but

<3.00:1.00
	 	35.0	 	225.0	 	0.0
	 3
	 	31.00:1.00 but <2.00:1.00	 	30.0	 	175.0	 	0.0
	 4
	 	<1.00:1.00	 	25.0	 	125.0	 	0.0

 Any increase or decrease
in the Applicable Interest Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.10(c);
provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was
required to have been delivered until such time as the Compliance Certificate has been delivered and the actual Pricing Level has been determined. The Applicable Interest Rate in effect from the date of this Amendment through receipt of the
financial statements for the period ending October 31, 2010, and the accompanying Compliance Certificate, shall be determined based upon Pricing Level 1.” 
 3. Representations and Warranties. The Borrower hereby represents and warrants to the Agent and the Lenders as follows: 
 (a) No Default or Event of Default has occurred and is continuing. 
 (b) The
execution, delivery and performance by the Borrower of this Amendment have been duly authorized by all necessary corporate and other action and do not and will not require any registration with, consent or approval of, or notice to or action by any
Person (including any Governmental Person) in order to be effective and/or enforceable. Each of this Amendment and the Loan Agreement as amended by this Amendment constitutes the legal, valid and binding obligation of the Borrower, enforceable
against it, without defense, counterclaim or offset, in accordance with its terms (subject to the waivers set forth in this Amendment), except as limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability
affecting the enforceability of creditors’ rights. 
 (c) All representations and warranties of the Borrower contained in
the Loan Agreement and the statements set forth in the recitals of this Amendment are true and correct on and as of the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such
specific date), in each case, other than (i) those that would not be true and correct but for the effectiveness of this Amendment, and 

  
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(ii) with respect to Section 5.16 of the Loan Agreement, as otherwise disclosed to the Agent. The Borrower has updated the schedules to the Loan Agreement in accordance with the
attached schedules. 
 (d) The Borrower is entering into this Amendment on the basis of its own business judgment, without
reliance upon the Agent, any Lender or any other Person. 
 4. Effective Date. This Amendment will become effective as of
the date first set forth above (the “Effective Date”), provided that each of the following conditions precedent is satisfied on or before the Effective Date: 

(a) the Agent has received, in sufficient number for each Lender, duly executed originals (or, if elected by the Agent, an executed
facsimile copy, to be followed promptly by delivery of executed originals) of this Amendment, executed by the Borrower and each of the Lenders and acknowledged by the Agent, together with the Guarantor Acknowledgment and Consent attached hereto,
executed by each Guarantor, and such other documentation as Agent shall reasonably require, including, but not limited to, an opinion of counsel to the Borrower and the Guarantors, resolutions authorizing the transaction described herein.

 (b) all of the representations and warranties contained herein (or incorporated herein by reference) are true and correct as
of the Effective Date. 
 5. No Further Amendments. Other than the specific amendments of the Loan Agreement as set forth
in Section 2 hereof: (i) nothing contained herein shall be deemed a waiver of any provision, or any other existing or future noncompliance with any provision, of the Loan Agreement (including the Loan Agreement as amended hereby); and
(ii) all of the terms, covenants and provisions of the Loan Agreement are and shall remain in full force and effect. 
 6.
Miscellaneous. 
 (a) All references in the Loan Agreement and in the other Loan Documents to the Loan Agreement shall
henceforth refer to the Loan Agreement as amended by this Amendment. This Amendment shall be deemed incorporated into, and a part of, the Loan Agreement. This Amendment is a Loan Document. 

(b) This Amendment is made pursuant to Section 10.1 of the Loan Agreement and shall be binding upon and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns. No third party beneficiaries are intended in connection with this Amendment. 
 (c) This Amendment shall be governed by and construed in accordance with the law of the State of Oregon. 
 (d) This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Each of
the parties hereto understands and agrees that this document (and any other document required herein) may be delivered by any party thereto either in the 

  
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form of an executed original or an executed original sent by facsimile transmission to be followed promptly by delivery of a hard copy original, and that receipt by the Agent of a facsimile
transmitted document purportedly bearing the signature of a Lender or the Borrower (or Guarantor) shall bind such Lender or the Borrower (or Guarantor), respectively, with the same force and effect as the delivery of a hard copy original. Any
failure by the Agent to receive the hard copy executed original of such document shall not diminish the binding effect of receipt of the facsimile transmitted executed original of such document of the party whose hard copy page was not received by
the Agent. 
 (e) If any term or provision of this Amendment shall be deemed prohibited by or invalid under any applicable law,
such provision shall be invalidated without affecting the remaining provisions of this Amendment or the Loan Agreement, respectively. 
 (f) Each of the provisions set forth in Section 10 of the Loan Agreement is incorporated herein by this reference and made applicable to this Amendment. 

(g) The Borrower covenants to pay to or reimburse the Agent, upon demand, for all reasonable costs and expenses (including reasonable
attorneys’ fees) incurred in connection with the development, preparation, negotiation, execution and delivery of this Amendment and related documents. 
 (h) UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY THE LENDERS CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED
SOLELY BY THE BORROWER’S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION, AND BE SIGNED BY THE LENDERS TO BE ENFORCEABLE. 
 IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered as of the date first written above. 

 

											
	CASCADE CORPORATION, as Borrower	  				 	BANK OF AMERICA, N.A., as Agent
					
	By:	  	 /s/ JOHN CUSHING
	  				 	By:	 	 /s/ TIFFANY SHIN

					
	Name:	  	 John Cushing
	  				 	Name:	 	 Tiffany Shin

					
	Title:	  	 Treasurer
	  				 	Title:	 	 Assistant VP - Bank of America



  
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	BANK OF AMERICA, N.A., as a Lender	  		 	UNION BANK OF CALIFORNIA, N.A., as a Lender
					
	By:	  	 /s/ MICHAEL SNOOK
	  		 	By:	 	 /s/ STEPHEN SLOAN

	Name:	  	 Michael Snook
	  		 	Name:	 	 Stephen Sloan

	Title:	  	 Senior VP – Bank of America
	  		 	Title:	 	 Vice President – Union Bank



GUARANTOR ACKNOWLEDGMENT AND CONSENT 
 The undersigned Guarantor hereby: (i) acknowledges and consents to the terms, and the execution, delivery and performance, of the foregoing Amendment (the “Amendment”) (without
implying the need for any such acknowledgment or consent); and (ii) represents and warrants to the Agent and the Lenders that, both before and after giving effect to the Amendment: (A) its Guaranty remains in full force and effect as an
enforceable obligation of such Guarantor (except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforceability of creditors’ rights), without
defense, counterclaim or offset; and (B) it is in compliance with all of its covenants contained in its Guaranty and in each other Loan Document applicable to it. The undersigned further represents and warrants to the Agent and the Lenders that
the execution and delivery by such Guarantor of, and the performance by such Guarantor of its obligations under, this Guarantor Acknowledgment and Consent, have been duly authorized by all necessary corporate and other action and do not and will not
require any registration with, consent or approval of, or notice to or action by any Person (including, without limitation, any Governmental Person) in order to be effective and/or enforceable. The undersigned remakes as of the Effective Date (as
defined in the Amendment) all of the representations and warranties made by it under its Guaranty. Capitalized terms used herein and not otherwise defined have the respective meanings assigned to them in the Loan Agreement (as defined in the
Amendment). 
 IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guarantor Acknowledgment and Consent by its duly
authorized officer as of October 29, 2010. 
  

			
	 CASCADE XIAMEN FORKLIFT TRUCK ATTACHMENT CO., LTD, a company formed under the laws of the People’s Republic of
China
  

	By:	 	 /s/ RICHARD ANDERSON

	Name:	 	 Richard Anderson

	Title:	 	 Director




  
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	JIAHAI (HEBEI) FORKS CO., LTD., a company formed under the laws of the People’s Republic of China
		
	By:	 	 /s/ JOHN CUSHING

	Name:	 	 John Cushing

	Title:	 	 Director

	
	CASCADE HEBEI FORK CO., LTD, a company formed under the laws of the People’s Republic of China
		
	By:	 	 /s/ JOHN CUSHING

	Name:	 	 John Cushing

	Title:	 	 Director

	
	CASCADE (U.K.) LIMITED, a company formed under the laws of the United Kingdom
		
	By:	 	 /s/ JOHN CUSHING

	Name:	 	 John Cushing

	Title:	 	 Director

	
	CASCADE NV, a company formed under the laws of The Netherlands
		
	By:	 	 /s/ JOSEPH G. POINTER

	Name:	 	 Joseph G. Pointer

	Title:	 	 Director

	
	CASCADE (FRANCE) S.A.R.L., a company formed under the laws of France
		
	By:	 	 /s/ DAVIDE RONCARI

	Name:	 	 Davide Roncari

	Title:	 	 Vice President - Europe




  
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	CASCADE GmbH, a company formed under the laws of Germany
		
	By:	 	 /s/ DAVIDE RONCARI

	Name:	 	 Davide Roncari

	Title:	 	 Vice President - Europe

	
	CASCADE (CANADA) LTD., a company formed under the laws of Canada
		
	By:	 	 /s/ JOSEPH G. POINTER

	Name:	 	 Joseph G. Pointer

	Title:	 	 Director

	
	CASCADE ITALIA S.r.l., a company formed under the laws of Italy
		
	By:	 	 /s/ DAVIDE RONCARI

	Name:	 	 Davide Roncari

	Title:	 	 Vice President - Europe

	
	CASCADE (AUSTRALIA) PTY. LTD., a company formed under the laws of Australia
		
	By:	 	 /s/ JOSEPH G. POINTER

	Name:	 	 Joseph G. Pointer

	Title:	 	 Director

	
	PSM, LLC, an Oregon limited liability company
		
	By:	 	 /s/ JOHN CUSHING

	Name:	 	 John Cushing

	Title:	 	 Director




  
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