EXECUTION COPY
______________________________________________________________________
______________________________________________________________________
THE MANITOWOC COMPANY, INC.
NOTE PURCHASE AND PRIVATE SHELF AGREEMENT
$50,000,000
6.54% Series A Senior Notes due April 2, 2010
$25,000,000
Private Shelf Facility
Dated as of April 2, 1998
______________________________________________________________________
______________________________________________________________________
TABLE OF CONTENTS
(not part of agreement)
Page
1. AUTHORIZATION OF ISSUE OF NOTES............................1
1A. Authorization of Issue of Series A Notes ..........1
1B. Authorization of Issue of Shelf Notes .............1
2. PURCHASE AND SALE OF NOTES.................................2
2A.Purchase and Sale of Series A Notes ....................2
2B. Purchase and Sale of Shelf Notes ...............2
2B(1). Facility .......................................2
2B(2). Issuance Period ................................3
2B(3). Request for Purchase ...........................3
2B(4). Rate Quotes ....................................3
2B(5). Acceptance .....................................4
2B(6). Market Disruption ..............................4
2B(7). Facility Closings ..............................4
2B(8). Fees ...........................................5
2B(8)(i). Structuring Fee ................................5
2B(8)(ii). Issuance Fee ...................................5
2B(8)(iii) Delayed Delivery Fee ...........................5
2B(8)(iv) Cancellation Fee ...............................6
3. CONDITIONS OF CLOSING......................................6
3A. Certain Documents .................................6
3B. Opinion of Purchaser's Special Counsel ............8
3C. Representations and Warranties; No Default ........8
3D.Purchase Permitted by Applicable Laws ..................8
3E. Payment of Fees ...................................8
4. PREPAYMENTS................................................8
4A. Required Prepayments of Series A Notes ............8
4B. Required Prepayments of Shelf Notes ...............9
4C. Optional Prepayment With Yield-Maintenance Amount .9
4D. Notice of Optional Prepayment .....................9
4E. Application of Prepayments ........................9
4F. No Acquisition of Notes ...........................9
5. AFFIRMATIVE COVENANTS.....................................10
5A. Financial Statements; Notice of Defaults .........10
5B. Information Required by Rule 144A ................11
5C. Inspection of Property ...........................11
5D. Covenant to Secure Notes Equally .................12
5E. Compliance with Laws .............................12
5F. Maintenance of Insurance .........................12
5G. Covenant Regarding Guarantees ....................12
6. NEGATIVE COVENANTS........................................12
6A. Debt Service Coverage Ratio ......................12
6B. Minimum Consolidated Net Worth ...................12
6C. Lien, Debt and Other Restrictions ................13
6C(1). Liens ............................................13
6C(2). Debt .............................................14
6C(3). Loans, Advances and Investments ..................14
6C(4). Sale of Stock and Debt of Subsidiaries ...........15
6C(5). Merger and Consolidation ........................16
6C(6). Transfer of Assets ...............................16
6C(7). Sale or Discount of Receivables ..................16
6C(8). Issuance of Stock by Subsidiaries ................16
6C(9). Related Party Transactions .......................17
7. EVENTS OF DEFAULT.........................................17
7A. Acceleration .....................................17
7B. Rescission of Acceleration .......................20
7C. Notice of Acceleration or Rescission .............20
7D. Other Remedies ...................................20
8. REPRESENTATIONS, COVENANTS AND WARRANTIES.................20
8A. Organization; Subsidiary Preferred Stock .........20
8B. Financial Statements .............................21
8C. Actions Pending ..................................21
8D.Outstanding Debt ......................................21
8E. Title to Properties ..............................22
8F. Taxes ............................................22
8G.Conflicting Agreements and Other Matters ..............22
8H. Offering of Notes ................................22
8I. Use of Proceeds ..................................23
8J. ERISA ............................................23
8K. Governmental Consent .............................23
8L. Environmental Compliance .........................23
8M.Regulatory Status .....................................24
8N. Section 144A .....................................24
8O. Absence of Financing Statements, etc.. ...........24
8P. Disclosure .......................................24
8Q Hostile Tender Offers ............................24
9. REPRESENTATIONS OF THE PURCHASERS.........................24
9A. Nature of Purchase ...............................24
9B. Source of Funds ..................................25
10. DEFINITIONS; ACCOUNTING MATTERS...........................25
10A. Yield-Maintenance Terms ..........................25
10B. Other Terms ......................................26
10C. Accounting Principles, Terms and Determinations ..35
11. MISCELLANEOUS.............................................36
11A. Note Payments ....................................36
11B. Expenses .........................................36
11C. Consent to Amendments ............................36
11D. Form, Registration, Transfer and Exchange of Notes;
Lost Notes .......................................37
11E. Persons Deemed Owners; Participations ............38
11F. Survival of Representations and Warranties;
Entire Agreement .................................38
11G. Successors and Assigns ...........................38
11H. Independence of Covenants ........................38
11I. Notices ..........................................38
11J. Payments Due on Non-Business Days ................39
11K. Severability .....................................39
11L. Descriptive Headings .............................39
11M. Satisfaction Requirement .........................39
11N. Governing Law ....................................39
11O. Severalty of Obligations .........................39
11P. Counterparts .....................................40
11Q. Confidentiality Provisions .......................40
11R. Binding Agreement ................................40
11S. Company Disclosure Documents .....................41
11T. Termination of Subsidiary Guarantee Agreement; Pari
Passu Nature of Notes .................................41
Exhibits and Schedules
Purchaser Schedule
Information Schedule
Exhibit A-1 -- Form of Series A Note
Exhibit A-2 -- Form of Shelf Note
Exhibit B -- Form of Request for Purchase
Exhibit C -- Form of Confirmation of Acceptance
Exhibit D-1 -- Form of Opinion of Company Counsel (Series A
Notes)
Exhibit D-2 -- Form of Opinion of Company Counsel (Shelf Notes)
Exhibit E -- Form of Subsidiary Guarantee Agreement
Schedule 6C(1) -- List of Existing Liens
Schedule 8A -- Subsidiaries
Schedule 8G -- Agreements Restricting Debt
THE MANITOWOC COMPANY, INC.
500 South 16th Street
P.O. Box 66
Manitowoc, Wisconsin 54221-0066
As of April 2, 1998
The Prudential Insurance Company
of America ("Prudential")
Each Prudential Affiliate (as hereinafter
defined) which becomes bound by certain
provisions of this Agreement as hereinafter
provided (together with Prudential, the "Purchasers")
c/o Prudential Capital Group
Two Prudential Plaza
Suite 5600
Chicago, Illinois 60601
Ladies and Gentlemen:
The undersigned, The Manitowoc Company, Inc., a
Wisconsin corporation (herein called the "Company"), hereb y agrees
with you as set forth below. Reference is made to paragraph 10 hereof
for definitions of capitalized terms used herein and not otherwise
defined herein.
1. AUTHORIZATION OF ISSUE OF NOTES.
1A. Authorization of Issue of Series A Notes. The Company
will authorize the issue of its senior promissory notes (the "Series
A Notes") in the aggregate principal amount of $50,000,000, to be
dated the date of issue thereof, to mature April 2, 2010, to bear
interest on the unpaid balance thereof from the date thereof until the
principal thereof shall have become due and payable at the rate of
6.54% per annum and on overdue principal, Yield-Maintenance Amount and
interest at the rate specified therein, and to be substantially in the
form of Exhibit A-1 attached hereto. The terms "Series A Note" and
"Series A Notes" as used herein shall include each Series A Note
delivered pursuant to any provision of this Agreement and each Series
A Note delivered in substitution or exchange for any such Series A
Note pursuant to any such provision.
1B. Authorization of Issue of Shelf Notes. The Company
will authorize the issue of its additional senior promissory notes
(the "Shelf Notes" ) in the aggregate principal amount of
$25,000,000, to be dated the date of issue thereof, to mature, in the
case of each Shelf Note so issued, no more than 15 years after the
date of original issuance thereof, to have an average life, in the
case of each Shelf Note so issued, of no more than 12 years after the
date of original issuance thereof, to bear interest on the unpaid
balance thereof from the date thereof at the rate per annum, and to
have such other particular terms, as shall be set forth, in the case
of each Shelf Note so issued, in the Confirmation of Acceptance with
respect to such Shelf Note delivered pursuant to paragraph 2B(5), and
to be substantially in the form of Exhibit A-2 attached hereto. The
terms "Shelf Note" and "Shelf Notes" as used herein shall include
each Shelf Note delivered pursuant to any provision of this Agreement
and each Shelf Note delivered in substitution or exchange for any such
Shelf Note pursuant to any such provision. The terms "Note" and
"Notes" as used herein shall include each Series A Note and each
Shelf Note delivered pursuant to any provision of this Agreement and
each Note delivered in substitution or exchange for any such Note
pursuant to any such provision. Notes which have (i) the same final
maturity, (ii) the same principal prepayment dates, (iii) the same
principal prepayment amounts (as a percentage of the original
principal amount of each Note), (iv) the same interest rate, (v) the
same interest payment periods and (vi) the same date of issuance
(which, in the case of a Note issued in exchange for another Note,
shall be deemed for these purposes the date on which such Note's
ultimate predecessor Note was issued), are herein called a "Series"
of Notes.
2. PURCHASE AND SALE OF NOTES.
2A. Purchase and Sale of Series A Notes. The Company
hereby agrees to sell to Prudential and, subject to the terms and
conditions herein set forth, Prudential agrees to purchase from the
Company $50,000,000 aggregate principal amount of Series A Notes at
100% of such aggregate principal amount. On April 2, 1998 or any
other date prior to April 2, 1998 upon which the Company and
Prudential may agree (herein called the "Series A Closing Day"), the
Company will deliver to Prudential at the offices of Prudential
Capital Group, Two Prudential Plaza, Suite 5600, Chicago, Illinois
60601, one or more Series A Notes registered in its name, evidencing
the aggregate principal amount of Series A Notes to be purchased by
Prudential and in the denomination or denominations specified with
respect to Prudential in the Purchaser Schedule attached hereto,
against payment of the purchase price thereof by transfer of
immediately available funds for credit to the Company's account #96768
at The Northern Trust Company, Chicago, Illinois, ABA Routing Number
071 000 152.
2B. Purchase and Sale of Shelf Notes.
2B(1). Facility. Prudential is willing to consider, in its
sole discretion and within limits which may be authorized for purchase
by Prudential from time to time, the purchase of Shelf Notes pursuant
to this Agreement. The willingness of Prudential to consider such
purchase of Shelf Notes is herein called the "Facility". At any
time, the aggregate principal amount of Shelf Notes stated in
paragraph 1B, minus the aggregate principal amount of Shelf Notes
purchased and sold pursuant to this Agreement prior to such time,
minus the aggregate principal amount of Accepted Notes (as hereinafter
defined) which have not yet been purchased and sold hereunder prior to
such time, is herein called the "Available Facility Amount" at such
time. NOTWITHSTANDING THE WILLINGNESS OF PRUDENTIAL TO CONSIDER
PURCHASES OF SHELF NOTES, THIS AGREEMENT IS ENTERED INTO ON THE
EXPRESS UNDERSTANDING THAT NEITHER PRUDENTIAL NOR ANY PRUDENTIAL
AFFILIATE SHALL BE OBLIGATED TO MAKE OR ACCEPT OFFERS TO PURCHASE
SHELF NOTES, OR TO QUOTE RATES, SPREADS OR OTHER TERMS WITH RESPECT TO
SPECIFIC PURCHASES OF SHELF NOTES, AND THE FACILITY SHALL IN NO WAY BE
CONSTRUED AS A COMMITMENT BY PRUDENTIAL OR ANY PRUDENTIAL AFFILIATE.
2B(2). Issuance Period. Shelf Notes may be issued and sold
pursuant to this Agreement until the earlier of (i) the third
anniversary of the date of this Agreement (or if such anniversary date
is not a Business Day, the Business Day next preceding such
anniversary) and (ii) the thirtieth day after Prudential shall have
given to the Company, or the Company shall have given to Prudential, a
written notice stating that it elects to terminate the issuance and
sale of Shelf Notes pursuant to this Agreement (or if such thirtieth
day is not a Business Day, the Business Day next preceding such
thirtieth day). The period during which Shelf Notes may be issued and
sold pursuant to this Agreement is herein called the "Issuance
Period".
2B(3). Request for Purchase. The Company may from time to
time during the Issuance Period make requests for purchases of Shelf
Notes (each such request being herein called a "Request for
Purchase"). Each Request for Purchase shall be made to Prudential by
telecopier or overnight delivery service, and shall (i) specify the
aggregate principal amount of Shelf Notes covered thereby, which shall
not be less than $5,000,000 and not be greater than the Available
Facility Amount at the time such Request for Purchase is made, (ii)
specify the principal amounts, final maturities, principal prepayment
dates and amounts and interest payment periods (quarterly or semi-
annual in arrears) of the Shelf Notes covered thereby, (iii) specify
the use of proceeds of such Shelf Notes, (iv) specify the proposed day
for the closing of the purchase and sale of such Shelf Notes, which
shall be a Business Day during the Issuance Period not less than 10
days and not more than 25 days after the making of such Request for
Purchase, (v) specify the number of the account and the name and
address of the depository institution to which the purchase prices of
such Shelf Notes are to be transferred on the Closing Day for such
purchase and sale, (vi) certify that the representations and
warranties contained in paragraph 8 are true on and as of the date of
such Request for Purchase and that there exists on the date of such
Request for Purchase no Event of Default or Default, (vii) specify
whether the fee to be due pursuant to paragraph 2B(8)(ii) should be
included in the rate quotes Prudential may provide pursuant to
paragraph 2B(4) or will be paid separately by the Company on the
Closing Day for such purchase and sale, and (viii) be substantially in
the form of Exhibit B attached hereto. Each Request for Purchase
shall be in writing and shall be deemed made when received by
Prudential.
2B(4). Rate Quotes. Not later than five Business Days after
the Company shall have given Prudential a Request for Purchase
pursuant to paragraph 2B(3), Prudential may, but shall be under no
obligation to, provide to the Company by telephone or telecopier, in
each case between 9:30 A.M. and 1:30 P.M. New York City local time (or
such later time as Prudential may elect) interest rate quotes for the
several principal amounts, maturities, principal prepayment schedules,
and interest payment periods of Shelf Notes specified in such Request
for Purchase. Each quote shall represent the interest rate per annum
payable on the outstanding principal balance of such Shelf Notes at
which Prudential or a Prudential Affiliate would be willing to
purchase such Shelf Notes at 100% of the principal amount thereof.
2B(5). Acceptance. Within the Acceptance Window, the Company
may, subject to paragraph 2B(6), elect to accept such interest rate
quotes as to not less than $5,000,000 aggregate principal amount of
the Shelf Notes specified in the related Request for Purchase. Such
election shall be made by an Authorized Officer of the Company
notifying Prudential by telephone or telecopier within the Acceptance
Window that the Company elects to accept such interest rate quotes,
specifying the Shelf Notes (each such Shelf Note being herein called
an "Accepted Note") as to which such acceptance (herein called an
"Acceptance") relates. The day the Company notifies an Acceptance
with respect to any Accepted Notes is herein called the "Acceptance
Day" for such Accepted Notes. Any interest rate quotes as to which
Prudential does not receive an Acceptance within the Acceptance Window
shall expire, and no purchase or sale of Shelf Notes hereunder shall
be made based on such expired interest rate quotes. Subject to
paragraph 2B(6) and the other terms and conditions hereof, the Company
agrees to sell to Prudential or a Prudential Affiliate, and Prudential
agrees to purchase, or to cause the purchase by a Prudential Affiliate
of, the Accepted Notes at 100% of the principal amount of such Notes.
As soon as practicable following the Acceptance Day, the Company,
Prudential and each Prudential Affiliate which is to purchase any such
Accepted Notes will execute a confirmation of such Acceptance
substantially in the form of Exhibit C attached hereto (herein called
a "Confirmation of Acceptance"). If the Company should fail to
execute and return to Prudential within three Business Days following
receipt thereof a Confirmation of Acceptance with respect to any
Accepted Notes, Prudential may at its election at any time prior to
its receipt thereof cancel the closing with respect to such Accepted
Notes by so notifying the Company in writing.
2B(6). Market Disruption. Notwithstanding the provisions of
paragraph 2B(5), if Prudential shall have provided interest rate
quotes pursuant to paragraph 2B(4) and thereafter prior to the time an
Acceptance with respect to such quotes shall have been notified to
Prudential in accordance with paragraph 2B(5) the domestic market for
U.S. Treasury securities or derivatives shall have closed or there
shall have occurred a general suspension, material limitation, or
significant disruption of trading in securities generally on the New
York Stock Exchange or in the domestic market for U.S. Treasury
securities or derivatives, then upon notice thereof being provided to
the Company such interest rate quotes shall expire, and no purchase or
sale of Shelf Notes hereunder shall be made based on such expired
interest rate quotes. If the Company thereafter notifies Prudential
of the Acceptance of any such interest rate quotes, such Acceptance
shall be ineffective for all purposes of this Agreement, and
Prudential shall promptly notify the Company that the provisions of
this paragraph 2B(6) are applicable with respect to such Acceptance.
2B(7). Facility Closings. Not later than 11:30 A.M. (New York
City local time) on the Closing Day for any Accepted Notes, the
Company will deliver to each Purchaser listed in the Confirmation of
Acceptance relating thereto at the offices of the Prudential Capital
Group, Two Prudential Plaza, Suite 5600, Chicago, Illinois 60601,
Attention: Law Department, the Accepted Notes to be purchased by such
Purchaser in the form of one or more Notes in authorized denominations
as such Purchaser may request for each Series of Accepted Notes to be
purchased on the Closing Day, dated the Closing Day and registered in
such Purchaser's name (or in the name of its nominee), against payment
of the purchase price thereof by transfer of immediately available
funds for credit to the Company's account specified in the Request for
Purchase of such Notes. If the Company fails to tender to any
Purchaser the Accepted Notes to be purchased by such Purchaser on the
scheduled Closing Day for such Accepted Notes as provided above in
this paragraph 2B(7), or any of the conditions specified in paragraph
3 shall not have been fulfilled by the time required on such scheduled
Closing Day, the Company shall, prior to 1:00 P.M., New York City
local time, on such scheduled Closing Day notify Prudential (which
notification shall be deemed received by each Purchaser) in writing
whether (i) such closing is to be rescheduled (such rescheduled date
to be a Business Day during the Issuance Period not less than one
Business Day and not more than 10 Business Days after such scheduled
Closing Day (the "Rescheduled Closing Day")) and certify to
Prudential (which certification shall be for the benefit of each
Purchaser) that the Company reasonably believes that it will be able
to comply with the conditions set forth in paragraph 3 on such
Rescheduled Closing Day and that the Company will pay the Delayed
Delivery Fee in accordance with paragraph 2B(8)(iii) or (ii) such
closing is to be canceled. In the event that the Company shall fail
to give such notice referred to in the preceding sentence, Prudential
(on behalf of each Purchaser) may at its election, at any time after
1:00 P.M., New York City local time, on such scheduled Closing Day,
notify the Company in writing that such closing is to be canceled.
Notwithstanding anything to the contrary appearing in this Agreement,
the Company may not elect to reschedule a closing with respect to any
given Accepted Notes on more than one occasion, unless Prudential
shall have otherwise consented in writing.
2B(8). Fees.
2B(8)(i). Structuring Fee. At the time of the execution and
delivery of this Agreement by the Company and Prudential, the Company
will pay to Prudential in immediately available funds a fee (herein
called the "Structuring Fee") in the amount of $50,000.
2B(8)(ii). Issuance Fee. The Company will pay to Prudential
in immediately available funds a fee (herein called the "Issuance
Fee") on each Closing Day (other than the Series A Closing Day) in an
amount equal to 0.15% of the aggregate principal amount of Notes sold
on such Closing Day, unless the Company shall have requested pursuant
to the applicable Request for Purchase that such fee be included in
the rate quotes Prudential may provide pursuant to paragraph 2B(4).
2B(8)(iii). Delayed Delivery Fee. If the closing of the
purchase and sale of any Accepted Note is delayed for any reason
beyond the original Closing Day for such Accepted Note, the Company
will pay to Prudential (a) on the Cancellation Date or actual closing
date of such purchase and sale and (b) if earlier, the next Business
Day following 90 days after the Acceptance Day for such Accepted Note
and on each Business Day following 90 days after the prior payment
hereunder, a fee (herein called the "Delayed Delivery Fee ")
calculated as follows:
(BEY -MMY) X DTS/360 X PA
where "BEY" means Bond Equivalent Yield, i.e., the bond equivalent
yield per annum of such Accepted Note; "MMY" means Money Market
Yield, i.e., the yield per annum on a commercial paper investment of
the highest quality selected by Prudential on the date Prudential
receives notice of the delay in the closing for such Accepted Note
having a maturity date or dates the same as, or closest to, the
Rescheduled Closing Day or Rescheduled Closing Days (a new alternative
investment being selected by Prudential each time such closing is
delayed); "DTS" means Days to Settlement, i.e., the number of actual
days elapsed from and including the original Closing Day with respect
to such Accepted Note (in the case of the first such payment with
respect to such Accepted Note) or from and including the date of the
next preceding payment (in the case of any subsequent delayed delivery
fee payment with respect to such Accepted Note) to but excluding the
date of such payment; and "PA" means Principal Amount, i.e., the
principal amount of the Accepted Note for which such calculation is
being made. In no case shall the Delayed Delivery Fee be less than
zero. Nothing contained herein shall obligate any Purchaser to
purchase any Accepted Note on any day other than the Closing Day for
such Accepted Note, as the same may be rescheduled from time to time
in compliance with paragraph 2B(7).
2B(8)(iv). Cancellation Fee. If the Company at any time
notifies Prudential in writing that the Company is canceling the
closing of the purchase and sale of any Accepted Note, or if
Prudential notifies the Company in writing under the circumstances set
forth in the last sentence of paragraph 2B(5) or the penultimate
sentence of paragraph 2B(7) that the closing of the purchase and sale
of such Accepted Note is to be canceled, or if the closing of the
purchase and sale of such Accepted Note is not consummated on or prior
to the last day of the Issuance Period (the date of any such
notification, or the last day of the Issuance Period, as the case may
be, being herein called the "Cancellation Date" ), the Company will
pay to Prudential in immediately available funds an amount (the
"Cancellation Fee") calculated as follows:
PI X PA
where "PI" means Price Increase, i.e., the quotient (expressed in
decimals) obtained by dividing (a) the excess of the ask price (as
determined by Prudential) of the Hedge Treasury Note(s) on the
Cancellation Date over the bid price (as determined by Prudential) of
the Hedge Treasury Notes(s) on the Acceptance Day for such Accepted
Note by (b) such bid price; and "PA" has the meaning ascribed to it
in paragraph 2B(8)(iii). The foregoing bid and ask prices shall be as
reported by Telerate Systems, Inc. (or, if such data for any reason
ceases to be available through Telerate Systems, Inc., any publicly
available source of similar market data). Each price shall be based
on a U.S. Treasury security having a par value of $100.00 and shall be
rounded to the second decimal place. In no case shall the
Cancellation Fee be less than zero.
3. CONDITIONS OF CLOSING. The obligation of any Purchaser
to purchase and pay for any Notes is subject to the satisfaction, on
or before the Closing Day for such Notes, of the following conditions:
3A. Certain Documents. Such Purchaser shall have received
the following, each dated the date of the applicable Closing Day:
(i) This Agreement;
(ii) The Note(s) to be purchased by such Purchaser;
(iii) A favorable opinion of Quarles & Brady, special
counsel to the Company and the Subsidiary Guarantors (or such
other counsel designated by the Company and acceptable to the
Purchaser(s)) satisfactory to such Purchaser and substantially in
the form of Exhibit D-1 (in the case of the Series A Notes) or D-
2 (in the case of any Shelf Notes) attached hereto and as to such
other matters as such Purchaser may reasonably request. The
Company and each Subsidiary Guarantor hereby directs each such
counsel to deliver such opinion, agrees that the issuance and
sale of any Notes will constitute a reconfirmation of such
direction, and understands and agrees that each Purchaser
receiving such an opinion will and is hereby authorized to rely
on such opinion;
(iv) a Secretary's Certificate signed by the Secretary or an
Assistant Secretary and one other officer of the Company
certifying, among other things, (A) as to the names, titles and
true signatures of the officers of the Company authorized to sign
this Agreement, the Notes and the other documents to be delivered
in connection with this Agreement, (B) that attached as Exhibit A
thereto is a true, accurate and complete copy of the Articles of
Incorporation of the Company, certified by the Office of the
Department of Financial Institutions of Wisconsin as of a date
not more than twenty Business Days from the date of closing, (C)
that attached as Exhibit B thereto is a true, accurate and
complete copy of the Company's Bylaws which were duly adopted and
are presently in effect and have been in effect immediately prior
to and at all times since the adoption of the resolutions
referred to in clause (D) below, (D) that attached as Exhibit C
thereto is a true, accurate and complete copy of the resolutions
of the Company's Board of Directors duly adopted at a meeting of
the Company's Board of Directors, and such resolutions have not
been rescinded, amended or modified and (E) that attached as
Exhibit D thereto is a certificate of current status for the
Company from the Office of the Department of Financial
Institutions of Wisconsin;
(v) an Officer's Certificate certifying that (A) the
representations and warranties contained in paragraph 8 shall be
true on and as of the date of closing, except to the extent of
changes caused by the transactions herein contemplated; and (B)
on the date of closing no Event of Default or Default exists;
(vi) certified copies of Requests for Information or Copies
(Form UCC-11) or equivalent reports listing all effective
financing statements which name the Company (under its present
name and previous names used in the last seven years) as debtor
and which are filed in the Office of the Department of Financial
Institutions of Wisconsin together with copies of such financing
statements;
(vii) the Subsidiary Guarantee Agreement; and
(viii) Additional documents or certificates with respect
to legal matters or corporate or other proceedings related to the
transactions contemplated hereby as may be reasonably requested
by such Purchaser.
3B. Opinion of Purchaser's Special Counsel. Such Purchaser
shall have received from Wiley S. Adams, Assistant General Counsel of
Prudential or such other counsel who is acting as special counsel for
it in connection with this transaction, a favorable opinion satisfac-
tory to such Purchaser as to such matters incident to the matters
herein contemplated as it may reasonably request.
3C. Representations and Warranties; No Default. The
representations and warranties contained in paragraphs 8 and 9 shall
be true on and as of such Closing Day, except to the extent of changes
caused by the transactions herein contemplated; there shall exist on
such Closing Day no Event of Default or Default; and the Company shall
have delivered to such Purchaser an Officer's Certificate, dated such
Closing Day, to both such effects.
3D. Purchase Permitted by Applicable Laws. The purchase of
and payment for the Notes to be purchased by such Purchaser on the
terms and conditions herein provided (including the use of the
proceeds of such Notes by the Company) shall not violate any
applicable law or governmental regulation (including, without
limitation, Section 5 of the Securities Act or Regulation U, T or X of
the Board of Governors of the Federal Reserve System) and shall not
subject such Purchaser to any tax, penalty or liability under or
pursuant to any applicable law or governmental regulation, and such
Purchaser shall have received such certificates or other evidence as
it may request to establish compliance with this condition.
3E. Payment of Fees. The Company shall have paid to
Prudential any fees due it pursuant to or in connection with this
Agreement, including any Structuring Fee due pursuant to paragraph
2B(8)(i), any Issuance Fee due pursuant to paragraph 2B(8)(ii) and any
Delayed Delivery Fee due pursuant to paragraph 2B(8)(iii).
4. PREPAYMENTS. The Series A Notes and any Shelf Notes
shall be subject to required prepayment as and to the extent provided
in paragraphs 4A and 4B, respectively. The Series A Notes and any
Shelf Notes shall also be subject to prepayment under the
circumstances set forth in paragraph 4C. Any prepayment made by the
Company pursuant to any other provision of this paragraph 4 shall not
reduce or otherwise affect its obligation to make any required
prepayment as specified in paragraph 4A or 4B.
4A. Required Prepayments of Series A Notes. Until the
Series A Notes shall be paid in full, the Company shall apply to the
prepayment of the Series A Notes, without Yield-Maintenance Amount,
the sum of $10,000,000 on April 2 of each year commencing on April 2,
2006 through and including April 2, 2009 and such principal amounts of
the Series A Notes, together with interest thereon to the payment
dates, shall become due on such payment dates. The remaining unpaid
principal amount of the Series A Notes, together with any accrued and
unpaid interest, shall become due on the maturity date of the Series A
Notes.
4B. Required Prepayments of Shelf Notes. Each Series of
Shelf Notes shall be subject to required prepayments, if any, set
forth in the Notes of such Series.
4C. Optional Prepayment With Yield-Maintenance Amount. The
Notes of each Series shall be subject to prepayment, in whole at any
time or from time to time in part (in integral multiples of $100,000
and in a minimum amount of $5,000,000), at the option of the Company,
at 100% of the principal amount so prepaid plus interest thereon to
the prepayment date and the Yield-Maintenance Amount, if any, with
respect to each such Note. Any partial prepayment of a Series of the
Notes pursuant to this paragraph 4C shall be applied in satisfaction
of required payments of principal in inverse order of their scheduled
due dates.
4D. Notice of Optional Prepayment. The Company shall give
the holder of each Note of a Series to be prepaid pursuant to
paragraph 4C irrevocable written notice of such prepayment not less
than thirty (30) days' prior to the prepayment date, specifying such
prepayment date, the aggregate principal amount of the Notes of such
Series to be prepaid on such date, the principal amount of the Notes
of such Series held by such holder to be prepaid on that date and that
such prepayment is to be made pursuant to paragraph 4C. Notice of
prepayment having been given as aforesaid, the principal amount of the
Notes specified in such notice, together with interest thereon to the
prepayment date and together with the Yield-Maintenance Amount, if
any, herein provided, shall become due and payable on such prepayment
date. The Company shall, on or before the day on which it gives
written notice of any prepayment pursuant to paragraph 4C, give
telephonic notice of the principal amount of the Notes to be prepaid
and the prepayment date to each Significant Holder which shall have
designated a recipient for such notices in the Purchaser Schedule
attached hereto or the applicable Confirmation of Acceptance or by
notice in writing to the Company.
4E. Application of Prepayments. In the case of each
prepayment of less than the entire unpaid principal amount of all
outstanding Notes of any Series pursuant to paragraphs 4A, 4B or 4C,
the amount to be prepaid shall be applied pro rata to all outstanding
Notes of such Series (including, for the purpose of this paragraph 4E
only, all Notes prepaid or otherwise retired or purchased or otherwise
acquired by the Company or any of its Subsidiaries or Affiliates other
than by prepayment pursuant to paragraph 4A, 4B or 4C) according to
the respective unpaid principal amounts thereof.
4F. No Acquisition of Notes. The Company shall not, and
shall not permit any of its Subsidiaries or Affiliates to, prepay or
otherwise retire in whole or in part prior to their stated final
maturity (other than by prepayment pursuant to paragraphs 4A, 4B or
4C, or upon acceleration of such final maturity pursuant to paragraph
7A), or purchase or otherwise acquire, directly or indirectly, Notes
held by any holder. Any notes so prepaid or otherwise retired or
purchased or otherwise acquired by the Company or any of its
Subsidiaries or Affiliates shall not be deemed to be outstanding for
any purpose under this Agreement, except as provided in paragraph 4E.
5. AFFIRMATIVE COVENANTS. During the Issuance Period and
so long thereafter as any Note is outstanding and unpaid, the Company
covenants as follows:
5A. Financial Statements; Notice of Defaults. The Company
covenants that it will deliver to each Significant Holder in
triplicate:
(i) as soon as practicable and in any event within 60 days
after the end of each quarterly period (other than the last
quarterly period) in each fiscal year consolidated statements of
income, and cash flows and a consolidated statement of
shareholders' equity of the Company and its Subsidiaries for the
period from the beginning of the current fiscal year to the end
of such quarterly period, and a consolidated balance sheet of the
Company and its Subsidiaries as at the end of such quarterly
period, setting forth in each case in comparative form figures
for the corresponding period in the preceding fiscal year, all in
reasonable detail and certified by an authorized financial
officer of the Company, subject to changes resulting from year-
end adjustments; provided, however, that delivery pursuant to
clause (iii) below of copies of the Quarterly Report on From 10-Q
of the Company for such quarterly period filed with the
Securities and Exchange Commission shall be deemed to satisfy the
requirements of this clause (i);
(ii) as soon as practicable and in any event within 90 days
after the end of each fiscal year, consolidated statements of
income and cash flows and a consolidated statement of
shareholders' equity of the Company and its Subsidiaries for such
year, and a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such year, setting forth in each
case in comparative form corresponding consolidated figures from
the preceding annual audit, all in reasonable detail and
satisfactory in form to the Required Holder(s) and reported on by
independent public accountants of recognized national standing
selected by the Company whose report shall be without limitation
as to scope of the audit and satisfactory in substance to the
Required Holder(s); provided, however, that delivery pursuant to
clause (iii) below of copies of the Annual Report on Form 10-K of
the Company for such fiscal year filed with the Securities and
Exchange Commission shall be deemed to satisfy the requirements
of this clause (ii);
(iii) promptly upon transmission thereof, copies of all
such financial statements, proxy statements, notices and reports
as it shall send to its public stockholders and copies of all
registration statements (without exhibits) and all reports which
it files with the Securities and Exchange Commission (or any
governmental body or agency succeeding to the functions of the
Securities and Exchange Commission);
(iv) promptly upon receipt thereof, a copy of each other
report submitted to the Company or any Subsidiary by independent
accountants in connection with any annual, interim or special
audit made by them of the books of the Company or any Subsidiary;
and
(v) with reasonable promptness, such other information as
such holder may reasonably request.
Together with each delivery of financial statements required by
clauses (i) and (ii) above, the Company will deliver to each
Significant Holder an Officer's Certificate demonstrating (with
computations in reasonable detail) compliance by the Company and its
Subsidiaries with the provisions of paragraph 6 and stating that there
exists no Event of Default or Default, or, if any Event of Default or
Default exists, specifying the nature and period of existence thereof
and what action the Company proposes to take with respect thereto.
Together with each delivery of financial statements required by clause
(ii) above, the Company will deliver to each Significant Holder a
certificate of such accountants stating that, in making the audit
necessary for their report on such financial statements, they have
obtained no knowledge of any Event of Default or Default, or, if they
have obtained knowledge of any Event of Default or Default, specifying
the nature and period of existence thereof. Such accountants,
however, shall not be liable to anyone by reason of their failure to
obtain knowledge of any Event of Default or Default which would not be
disclosed in the course of an audit conducted in accordance with
generally accepted auditing standards.
The Company also covenants that immediately after any
Responsible Officer obtains knowledge of an Event of Default or
Default, it will deliver to each Significant Holder an Officer's
Certificate specifying the nature and period of existence thereof and
what action the Company proposes to take with respect thereto.
5B. Information Required by Rule 144A. The Company
covenants that it will, upon the request of the holder of any Note,
provide such holder, and any qualified institutional buyer designated
by such holder, such financial and other information as such holder
may reasonably determine to be necessary in order to permit compliance
with the information requirements of Rule 144A under the Securities
Act in connection with the resale of Notes, except at such times as
the Company is subject to and in compliance with the reporting
requirements of section 13 or 15(d) of the Exchange Act. For the
purpose of this paragraph 5B, the term "qualified institutional
buyer" shall have the meaning specified in Rule 144A under the
Securities Act.
5C. Inspection of Property. The Company covenants that it
will permit any Person designated by any Significant Holder in
writing, at such Significant Holder's expense, to visit and inspect
any of the properties of the Company and its Subsidiaries upon
reasonable notice in light of the circumstances, to examine the
corporate books and financial records of the Company and its
Subsidiaries (other than materials protected by the attorney-client
privilege and materials which the Company may not disclose without
violation of a confidentiality obligation binding upon it which was
not entered into to avoid disclosure under this paragraph and with
respect to which the Company is unable to obtain any requisite consent
to disclosure after reasonable efforts) and make copies thereof or
extracts therefrom and to discuss the affairs, finances and accounts
of any of such corporations with the principal officers of the Company
and its independent public accountants, all during regular business
hours and as often as such Significant Holder may reasonably request.
5D. Covenant to Secure Notes Equally. The Company
covenants that, if it or any Subsidiary shall create or assume any
Lien upon any of its property or assets, whether now owned or
hereafter acquired, other than Liens permitted by the provisions of
paragraph 6C(1) (unless prior written consent to the creation or
assumption thereof shall have been obtained pursuant to paragraph
11C), it will make or cause to be made effective provision whereby the
Notes will be secured by such Lien equally and ratably with any and
all other Debt thereby secured so long as any such other Debt shall be
so secured.
5E. Compliance with Laws. The Company covenants that it
shall, and shall cause each Subsidiary to, comply with all applicable
laws, rules, regulations, decrees and orders of all federal, state,
local or foreign courts or governmental agencies, authorities,
instrumentalities or regulatory bodies the noncompliance with which
could be reasonably expected to result in a material adverse effect on
the business, assets, operations or condition (financial or otherwise)
of the Company and its Subsidiaries taken as a whole.
5F. Maintenance of Insurance. The Company covenants that
it and each subsidiary will maintain, with financially sound and
reputable insurers, insurance in such amounts and against such
liabilities and hazards as customarily is maintained by the other
companies operating similar businesses; provided, that the Purchasers
acknowledge that the Company is self-insured for purposes of workers'
compensation. Together with each delivery of financial statements
under paragraph 5A, the Company will, upon the request of any
Significant Holder, deliver an Officer's Certificate specifying the
details of such insurance in effect.
5G. Covenant Regarding Guarantees. The Company covenants
that if any Subsidiary provides a Guarantee of any Debt of the Company
incurred in respect of the Credit Agreement or any replacement or
substitute agreement, it will cause such Subsidiary to Guarantee the
Notes equally and ratably with such other Debt for so long as such
other Debt is guaranteed; provided, that the provision of any such
Guarantee with respect to the Notes shall not in any way limit or
modify the rights of the holder(s) of the Notes to enforce the
provisions of paragraph 6C(2).
6. NEGATIVE COVENANTS. During the Issuance Period and so
long thereafter as any Note or other amount due hereunder is
outstanding and unpaid, the Company covenants as follows:
6A. Debt Service Coverage Ratio. The Company will not
permit the Debt Service Coverage Ratio, calculated on the basis of a
rolling period of four consecutive fiscal quarters, to be less than
1.75 to 1.00 as of the end of any fiscal quarter.
6B. Minimum Consolidated Net Worth. The Company will not
permit at any time Consolidated Net Worth to fall below $100,000,000
plus fifty percent (50%) of annual Consolidated Net Income (less 0% in
the event of a loss) applied at the end of each fiscal year commencing
with the fiscal year ending on December 31, 1998.
6C. Lien, Debt and Other Restrictions. The Company will
not and will not permit any Subsidiary to:
6C(1). Liens. Create, assume or suffer to exist any Lien upon
any of its properties or assets, whether now owned or hereafter
acquired (whether or not provision is made for the equal and ratable
securing of the Notes in accordance with the provisions of paragraph
5D), except:
(i) Liens for taxes, assessments, charges or other
governmental levies not yet due or as to which the period of
grace, if any, related thereto has not expired or which are being
actively contested in good faith by appropriate proceedings;
(ii) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days
or which are being actively contested in good faith by
appropriate proceedings;
(iii) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation (other than any Lien imposed by ERISA) and deposits
securing liability to insurance carriers under insurance or self-
insurance arrangements;
(iv) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(v) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of
any Lien referred to in the foregoing clauses; provided that such
extension, renewal or replacement Lien shall be limited to all or
a part of the property which secured the Lien so extended,
renewed or replaced (plus improvements on such property);
(vi) easements, rights of way, restrictions and other
similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not material in amount and which do
not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct
of the business of the Company or any Subsidiary;
(vii) Liens in existence on the date hereof listed on
Schedule 6C(1), securing Debt permitted by Section 6C(2),
provided that no such Lien is spread to cover any additional
property (other than proceeds of the collateral originally
subject to such Lien in accordance with the instrument creating
such Lien) after April 2, 1998 and that the amount of Debt
secured thereby is not increased;
(viii) Liens in the nature of licenses that arise in the
ordinary course of business and consistent with past practice;
(ix) leases and subleases otherwise permitted hereunder
granted to others not interfering in any material respect in the
business of the Company or any Subsidiary;
(x) attachment or judgment Liens, where the attachment or
judgment which gave rise to such Liens does not constitute an
Event of Default hereunder; and
(xi) other Liens provided however that Priority Debt at no
time exceeds 15% of Consolidated Net Worth;
6C(2). Debt. Create, incur, assume or suffer to exist
any Debt, except:
(i) Debt of any Subsidiary owing to the Company or a
Wholly-Owned Subsidiary, and
(ii) other Debt of the Company or Subsidiaries, so long as
(a) Priority Debt at no time exceeds 15% of Consolidated Net
Worth, and (b) the aggregate principal amount of Consolidated
Debt of the Company and its Subsidiaries at no time exceeds an
amount equal to 300% of Consolidated Cash Flow from Operations
for the rolling period of four consecutive fiscal quarters then
most recently ended;
In the event that the Company shall from time to time fail to be in
compliance with clause (a) of subparagraph 6C(2)(ii), no Default or
Event of Default shall be deemed to have occurred under this Agreement
by virtue of such non-compliance if Company shall pay to the holder(s)
of the Notes a fee equal to 0.10% per annum on the outstanding
principal balance of the Notes for each day that the Company fails to
be in compliance with such clause (a) of subparagraph 6C(2)(ii). Such
fee shall be paid in-arrears and due on the date interest on the Notes
is due.
6C(3). Loans, Advances and Investments. Make or permit
to remain outstanding any loan or advance to, or own, purchase or
acquire any stock, obligations or securities of, or any other interest
in, or make any capital contribution to, any Person, except the
Company or any Subsidiary may:
(i) make or permit to remain outstanding loans or advances
to any Subsidiary or the Company,
(ii) own, purchase or acquire stock, obligations or
securities of a Subsidiary or of a corporation which immediately
after such purchase or acquisition will be a Subsidiary;
(iii) acquire and own stock, obligations or securities
received in settlement of debts (created in the ordinary course
of business) owing to the Company or any Subsidiary;
(iv) own, purchase or acquire (a) commercial paper rated P1
by Moody's Investors Service, Inc. or A1 by Standard & Poor's
Ratings Group, bankers acceptances, certificates of deposit in
United States and Canadian commercial banks with capital in
excess of $100,000,000, obligations of the United States
Government or any agency thereof and obligations guaranteed by
the United States Government, in each case due within one year of
the date of purchase, and (b) repurchase agreements of banks
described in subclause (a) for terms of less than one year in
respect of the certificates and obligations described in
subclause (a);
(v) make or permit to remain outstanding trade receivables
arising in the ordinary course of business;
(vi) make or permit to remain outstanding travel and other
like advances to officers and employees in the ordinary course of
business consistent with business practices as of the date
hereof;
(vii) with respect to Foreign Subsidiaries, loans,
advances and/or investments (A) in and to Foreign Subsidiaries
provided, however, that at no time shall assets of Foreign
Subsidiaries exceed 25% of Consolidated assets of the Company and
its Subsidiaries and (B) by such Foreign Subsidiary to or in
other foreign Persons, whether denominated in dollars or
otherwise;
(viii) with respect to any pension trust maintained for
the benefit of any present or former employees of the Company or
any Subsidiary, such loans, advances and/or investments as the
trustee or administrator of the trust shall deem advisable
pursuant to the terms of such trust; and
(ix) make or permit to remain outstanding other loans,
advances and investments, provided that the aggregate amount
thereof, at no time exceeds an amount equal to 15% of
Consolidated Net Worth;
6C(4). Sale of Stock and Debt of Subsidiaries. Sell or
otherwise dispose of, or part with control of, any shares of stock or
Debt of any Subsidiary, except (i) to the Company or Wholly-Owned
Subsidiary, and (ii) that all shares of stock and Debt of any
Subsidiary at the time owned by or owed to the Company and all
Subsidiaries may be sold as an entirety for a cash consideration which
represents the fair value (as determined in good faith by the Board of
Directors of the Company) at the time of sale of the shares of stock
and Debt so sold; provided that (a) such sale or other disposition, if
treated as a Transfer of assets of such Subsidiary, would be permitted
by paragraph 6C(6) and (b) at the time of such sale, such Subsidiary
shall not own, directly or indirectly, any shares of stock or Debt of
any other Subsidiary (unless all of the shares of stock and Debt of
such other Subsidiary owned, directly or indirectly, by the Company
and all Subsidiaries are simultaneously being sold as permitted by
this paragraph 6C(4));
6C(5). Merger and Consolidation. Merge or consolidate with or
into any other Person, except that:
(i) any Subsidiary may merge or consolidate with or into
the Company, provided that the Company is the continuing or
surviving corporation,
(ii) any Subsidiary may merge or consolidate with or into a
Wholly-Owned Subsidiary, and
(iii) the Company may merge with any other solvent
corporation, so long as the Company shall be the continuing or
surviving corporation, provided that no Default or Event of
Default exists or would exist immediately after giving effect to
any such merger;
6C(6). Transfer of Assets. Transfer any of its assets except
that:
(i) the Company and Subsidiaries may sell assets in the
ordinary course of business,
(ii) any Subsidiary may Transfer assets to the Company or a
Wholly-Owned Subsidiary, and
(iii) the Company or any Subsidiary may otherwise
Transfer assets, provided that after giving effect thereto (a)
the Three Year Percentage of Earnings Capacity Transferred
pursuant to this clause (iii) and clause (ii) of paragraph 6C(4)
shall not exceed 10% and (b) the Three Year Percentage of Assets
Transferred pursuant to this clause (iii) and clause (ii) of
paragraph 6C(4) shall not exceed 10%;
6C(7). Sale or Discount of Receivables. Sell with recourse,
or discount or otherwise sell for less than the face value thereof, or
subject to a Lien, any of its notes or accounts receivable other than
receivables which are doubtful in accordance with generally accepted
accounting principles;
6C(8). Issuance of Stock by Subsidiaries. Permit any
Subsidiary to issue, sell or dispose of any shares of its stock of any
class except to the Company or a Wholly-Owned Subsidiary, and except
that any Subsidiary which does not own any shares of stock of any
other Subsidiary may issue to Persons other than the Company or
another Subsidiary shares of stock of a class which has no priority
over any other class as to dividends or in liquidation if, after
giving effect thereto, the issuing corporation shall continue to be a
Subsidiary and no Default or Event of Default would exist; or
6C(9). Related Party Transactions. Directly or indirectly,
purchase, acquire or lease any property from, or sell, transfer or
lease any property to, or otherwise deal with, in the ordinary course
of business or otherwise, any Related Party; provided that the
foregoing shall not prohibit transactions (i) loans and advances to
officers, directors, employees and Affiliates in an aggregate amount
not to exceed $500,000 at any time outstanding or (ii) which are
engaged in the ordinary course of business and are on terms
demonstrably no less favorable to the Company or a Subsidiary (as the
case may be) than would be available in an "arm's-length"
transaction.
7. EVENTS OF DEFAULT.
7A. Acceleration. If any of the following events shall
occur and be continuing for any reason whatsoever (and whether such
occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or otherwise):
(i) the Company defaults in the payment of any principal
of, or Yield- Maintenance Amount payable with respect to, any
Note when the same shall become due, either by the terms thereof
or otherwise as herein provided; or
(ii) the Company defaults in the payment of any interest on
any Note or any fee payable under paragraph 6C(2) for more than
10 days after the date due; or
(iii) the Company or any Subsidiary defaults (whether as
primary obligor or as guarantor or other surety) in any payment
of principal of or interest on any other obligation for money
borrowed (or any Capitalized Lease Obligation, any obligation
under a conditional sale or other title retention agreement, any
obligation issued or assumed as full or partial payment for
property whether or not secured by a purchase money mortgage or
any obligation under notes payable or drafts accepted
representing extensions of credit) beyond any period of grace
provided with respect thereto, or the Company or any Subsidiary
fails to perform or observe any other agreement, term or
condition contained in any agreement under which any such
obligation is created (or if any other event thereunder or under
any such agreement shall occur and be continuing) and, in each
case, the effect of such failure or other event is to cause, or
to permit the holder or holders of such obligation (or a trustee
on behalf of such holder or holders) to cause, such obligation to
become due (or to be repurchased by the Company or any
Subsidiary) prior to any stated maturity, provided that the
aggregate amount of all obligations as to which such a payment
default shall occur and be continuing or such a failure or other
event causing or permitting acceleration (or resale to the
Company or any Subsidiary) shall occur and be continuing exceeds
$2,000,000; or
(iv) any representation or warranty made by the Company
herein or by the Company, any Subsidiary Guarantor or any of
their respective officers in any writing furnished in connection
with or pursuant to this Agreement (including, without
limitation, the Subsidiary Guarantee Agreement) shall be false in
any material respect on the date as of which made; or
(v) the Company fails to perform or observe any agreement
contained in paragraph 6; or
(vi) the Company fails to perform or observe any other
agreement, term or condition contained herein and such failure
shall not be remedied within 30 days after any Responsible
Officer obtains actual knowledge thereof; provided, however, that
if such failure cannot reasonably be expected to be remedied
within such 30 day period, the Company shall not be deemed in
default hereunder if it has initiated remediation in form and
substance acceptable to the Required Holders in their sole and
absolute discretion; or
(vii) the Company or any Subsidiary makes an assignment
for the benefit of creditors; or
(viii) any decree or order for relief in respect of the
Company or any Subsidiary is entered under any bankruptcy,
reorganization, compromise, arrangement, insolvency, readjustment
of debt, dissolution or liquidation or similar law, whether now
or hereafter in effect (herein called the "Bankruptcy Law"), of
any jurisdiction; or
(ix) the Company or any Subsidiary petitions or applies to
any tribunal for, or consents to, the appointment of, or taking
possession by, a trustee, receiver, custodian, liquidator or
similar official of the Company or any Subsidiary, or of any
substantial part of the assets of the Company or any Subsidiary,
or commences a voluntary case under the Bankruptcy Law of the
United States or any proceedings (other than proceedings for the
voluntary liquidation and dissolution of a Subsidiary) relating
to the Company or any Subsidiary under the Bankruptcy Law of any
other jurisdiction; or
(x) any such petition or application is filed, or any such
proceedings are commenced, against the Company or any Subsidiary
and the Company or such Subsidiary by any act indicates its
approval thereof, consent thereto or acquiescence therein, or an
order, judgment or decree is entered appointing any such trustee,
receiver, custodian, liquidator or similar official, or approving
the petition in any such proceedings, and such order, judgment or
decree remains unstayed and in effect for more than 60 days; or
(xi) any order, judgment or decree is entered in any
proceedings against the Company decreeing the dissolution of the
Company and such order, judgment or decree remains unstayed and
in effect for more than 60 days: or
(xii) any order, judgment or decree is entered in any
proceedings against the Company or any Subsidiary decreeing a
split-up of the Company or such Subsidiary which requires the
divestiture of assets representing a substantial part, or the
divestiture of the stock of a Subsidiary whose assets represent a
substantial part, of the consolidated assets of the Company and
its Subsidiaries (determined in accordance with generally
accepted accounting principles) or which requires the divestiture
of assets, or stock of a Subsidiary, which shall have contributed
a substantial part of the consolidated net income of the Company
and its Subsidiaries (determined in accordance with generally
accepted accounting principles) for any of the three fiscal years
then most recently ended, and such order, judgment or decree
remains unstayed and in effect for more than 60 days; or
(xiii) one or more final judgments in an aggregate amount
in excess of $2,000,000 is rendered against the Company or any
Subsidiary and, within 60 days after entry thereof, any such
judgment is not paid, discharged or execution thereof stayed
pending appeal, or within 60 days after the expiration of any
such stay, such judgment is not discharged; or
(xiv) the Company or any ERISA Affiliate, in its
capacity as an employer under a Multiemployer Plan, makes a
complete or partial withdrawal from such Multiemployer Plan
resulting in the incurrence by such withdrawing employer of a
withdrawal liability in an amount exceeding $2,000,000; or
(xv) the Subsidiary Guarantee Agreement shall cease to be in
full force and effect (except as provided by paragraph 11T
hereof) or shall not be enforceable in accordance with its terms;
or any Transaction Party shall contest or deny the validity or
enforceability of, or deny (other than a bona fide denial based
on payment in full of the obligations thereunder or termination
under paragraph 11T) that it has any liability or obligations
under, any agreement, term or condition contained in such
Subsidiary Guarantee Agreement applicable to it;
then (a) if such event is an Event of Default specified in clause (i)
or (ii) of this paragraph 7A, any holder of any Note may at its option
during the continuance of such Event of Default, by notice in writing
to the Company, declare all of the Notes held by such holder to be,
and all of the Notes held by such holder shall thereupon be and
become, immediately due and payable at par together with interest
accrued thereon, without presentment, demand, protest or notice of any
kind, all of which are hereby waived by the Company, (b) if such event
is an Event of Default specified in clause (viii), (ix) or (x) of this
paragraph 7A with respect to the Company, all of the Notes at the time
outstanding shall automatically become immediately due and payable
together with interest accrued thereon and together with the Yield-
Maintenance Amount, if any, with respect to each Note, without
presentment, demand, protest or notice of any kind, all of which are
hereby waived by the Company, and (c) with respect to any event
constituting an Event of Default, the Required Holder(s) of the Notes
of any Series may at its or their option during the continuance of
such Event of Default, by notice in writing to the Company, declare
all of the Notes of such Series to be, and all of the Notes of such
Series shall thereupon be and become, immediately due and payable
together with interest accrued thereon and together with the Yield-
Maintenance Amount, if any, with respect to each Note of such Series,
without presentment, demand, protest or notice of any kind, all of
which are hereby waived by the Company.
7B. Rescission of Acceleration. At any time after any or
all of the Notes of any Series shall have been declared immediately
due and payable pursuant to paragraph 7A, the Required Holder(s) of
the Notes of such Series may, by notice in writing to the Company,
rescind and annul such declaration and its consequences if (i) the
Company shall have paid all overdue interest on the Notes of such
Series, the principal of and Yield-Maintenance Amount, if any, payable
with respect to any Notes of such Series which have become due
otherwise than by reason of such declaration, and interest on such
overdue interest and overdue principal and Yield-Maintenance Amount at
the rate specified in the Notes of such Series, (ii) the Company shall
not have paid any amounts which have become due solely by reason of
such declaration unless such amounts shall have been returned to the
Company, (iii) all Events of Default and Defaults, other than non-
payment of amounts which have become due solely by reason of such
declaration, shall have been cured or waived pursuant to paragraph
11C, and (iv) no judgment or decree shall have been entered for the
payment of any amounts due pursuant to the Notes of such Series or
this Agreement unless such judgment or decree shall have been vacated
or set aside. No such rescission or annulment shall extend to or
affect any subsequent Event of Default or Default or impair any right
arising therefrom.
7C. Notice of Acceleration or Rescission. Whenever any
Note shall be declared immediately due and payable pursuant to
paragraph 7A or any such declaration shall be rescinded and annulled
pursuant to paragraph 7B, the Company shall forthwith give written
notice thereof to the holder of each Note of each Series at the time
outstanding.
7D. Other Remedies. If any Event of Default or Default
shall occur and be continuing, the holder of any Note may proceed to
protect and enforce its rights under this Agreement and such Note by
exercising such remedies as are available to such holder in respect
thereof under applicable law, either by suit in equity or by action at
law, or both, whether for specific performance of any covenant or
other agreement contained in this Agreement or in aid of the exercise
of any power granted in this Agreement. No remedy conferred in this
Agreement upon the holder of any Note is intended to be exclusive of
any other remedy, and each and every such remedy shall be cumulative
and shall be in addition to every other remedy conferred herein or now
or hereafter existing at law or in equity or by statute or otherwise.
8. REPRESENTATIONS, COVENANTS AND WARRANTIES. The Company
represents, covenants and warrants as of the date hereof and as of the
closing date of any purchase of Shelf Notes as follows (all references
to "Subsidiary" and "Subsidiaries" in this paragraph 8 shall be
deemed omitted if the Company has no Subsidiaries at the time the
representations herein are made or repeated):
8A. Organization; Subsidiary Preferred Stock. The Company
is a corporation duly organized and existing in active status under
the laws of the State of Wisconsin, each Subsidiary is duly organized
and existing in active status or good standing, as the case may be,
under the laws of the jurisdiction in which it is incorporated, and
the Company has and each Subsidiary has the corporate power to own its
respective property and to carry on its respective business as now
being conducted. No Subsidiary has outstanding any shares of stock of
a class which has priority over any other class as to dividends or in
liquidation. Set forth on Schedule 8A (as such Schedule may be
modified from time to time by written supplements thereto delivered by
the Company and accepted in writing by Prudential) is a complete and
accurate list of all Subsidiaries of the Company. Information on the
attached Schedule includes state of incorporation; the number of
shares of each class of capital stock or other equity interests
outstanding; the number and percentage of shares of each class of
stock.
8B. Financial Statements. The Company has furnished each
Purchaser of any Note with the following financial statements,
delivered by a principal financial officer of the Company: (i) a
consolidated balance sheet of the Company and its Subsidiaries as at
December 31 in each of the three fiscal years of the Company most
recently completed prior to the date as of which this representation
is made or repeated to such Purchaser (other than fiscal years
completed within 90 days prior to such date for which audited
financial statements have not been released) and consolidated
statements of income and cash flows and a consolidated statement of
shareholders' equity of the Company and its Subsidiaries for each such
year, all reported on by Coopers & Lybrand LLP and (ii) consolidated
balance sheet of the Company and its Subsidiaries as at the end of the
quarterly period (if any) most recently completed prior to such date
and after the end of such fiscal year (other than quarterly periods
completed within 60 days prior to such date for which financial
statements have not been released) and the comparable quarterly period
in the preceding fiscal year and consolidated statements of income and
cash flows and a consolidated statement of shareholders' equity for
the periods from the beginning of the fiscal years in which such
quarterly periods are included to the end of such quarterly periods,
prepared by the Company. Such financial statements (including any
related schedules and/or notes) are true and correct in all material
respects (subject, as to interim statements, to changes resulting from
audits and year-end adjustments), have been prepared in accordance
with generally accepted accounting principles consistently followed
throughout the periods involved and show all liabilities, direct and
contingent, of the Company and its Subsidiaries required to be shown
in accordance with such principles. The balance sheets fairly present
the condition of the Company and its Subsidiaries as at the dates
thereof, and the statements of income, stockholders' equity and cash
flows fairly present the results of the operations of the Company and
its Subsidiaries and their cash flows for the periods indicated.
There has been no material adverse change in the business, property or
assets, condition (financial or otherwise), operations or prospects of
the Company and its Subsidiaries taken as a whole since the end of the
most recent fiscal year for which such audited financial statements
have been furnished.
8C. Actions Pending. There is no action, suit,
investigation or proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its Subsidiaries, or
any properties or rights of the Company or any of its Subsidiaries, by
or before any court, arbitrator or administrative or governmental body
which could be reasonably expected to result in any material adverse
change in the business, property or assets, condition (financial or
otherwise) or operations of the Company and its Subsidiaries taken as
a whole.
8D. Outstanding Debt. Neither the Company nor any of its
Subsidiaries has outstanding any Debt except as permitted by paragraph
6C(2). There exists no default under the provisions of any instrument
evidencing such Debt or of any agreement relating thereto.
8E. Title to Properties. The Company has and each of its
Subsidiaries has good and indefeasible title to its respective real
properties (other than properties which it leases) and good title to
all of its other respective properties and assets, including the
properties and assets reflected in the most recent audited balance
sheet referred to in paragraph 8B (other than properties and assets
disposed of in the ordinary course of business), subject to no Lien of
any kind except Liens permitted by paragraph 6C(1). To the best of
the Company's knowledge, all leases necessary in any material respect
for the conduct of the respective businesses of the Company and its
Subsidiaries are valid and subsisting and are in full force and
effect.
8F. Taxes. The Company has and each of its Subsidiaries
has filed, or caused to be filed, all material federal, state and
other income tax returns which, to the best knowledge of the officers
of the Company and its Subsidiaries, are required to be filed, and
each has paid all taxes as shown on such returns and on all
assessments received by it to the extent that such taxes have become
due, except such taxes as are being contested in good faith by
appropriate proceedings for which adequate reserves have been
established in accordance with generally accepted accounting
principles, or which are not yet delinquent.
8G. Conflicting Agreements and Other Matters. Neither the
Company nor any of its Subsidiaries is a party to any contract or
agreement or subject to any charter or other corporate restriction
which materially and adversely affects its business, property or
assets, condition (financial or otherwise) or operations. Neither the
execution nor delivery of this Agreement or the Notes, nor the
offering, issuance and sale of the Notes, nor fulfillment of nor
compliance with the terms and provisions hereof and of the Notes will
conflict with, or result in a breach of the terms, conditions or
provisions of, or constitute a default under, or result in any
violation of, or result in the creation of any Lien upon any of the
properties or assets of the Company or any of its Subsidiaries
pursuant to, the charter or by-laws of the Company or any of its
Subsidiaries, any award of any arbitrator or any agreement (including
any agreement with stockholders), instrument, order, judgment, decree,
statute, law, rule or regulation to which the Company or any of its
Subsidiaries is subject. Neither the Company nor any of its
Subsidiaries is a party to, or otherwise subject to any provision
contained in, any instrument evidencing Indebtedness of the Company or
such Subsidiary, any agreement relating thereto or any other contract
or agreement (including its charter) which limits the amount of, or
otherwise imposes restrictions on the incurring of, Debt of the
Company of the type to be evidenced by the Notes except for the Credit
Agreement and as set forth in the agreements listed in Schedule 8G
attached hereto (as such Schedule 8G may have been modified from time
to time by written supplements thereto delivered by the Company and
accepted in writing by Prudential).
8H. Offering of Notes. Neither the Company nor any agent
acting on its behalf has, directly or indirectly, offered the Notes or
any similar security of the Company for sale to, or solicited any
offers to buy the Notes or any similar security of the Company from,
or otherwise approached or negotiated with respect thereto with, any
Person other than Institutional Investors, and neither the Company nor
any agent acting on its behalf has taken or will take any action which
would subject the issuance or sale of the Notes to the provisions of
Section 5 of the Securities Act or to the provisions of any securities
or Blue Sky law of any applicable jurisdiction.
8I. Use of Proceeds. The proceeds of the Series A Notes
will be used to retire existing indebtedness. The Company is not
engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying
`` margin stock'' (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System), and the aggregate market
value of all ``margin stock'' owned by the Company and its
Subsidiaries does not exceed 25% of the aggregate value of the assets
thereof, as determined by any reasonable method. Neither the Company
nor any agent acting on its behalf has taken or will take any action
which might cause this Agreement or the Notes to violate Regulation U,
Regulation T or any other regulation of the Board of Governors of the
Federal Reserve System or to violate the Exchange Act, in each case as
in effect now or as the same may hereafter be in effect.
8J. ERISA. No accumulated funding deficiency (as defined
in section 302 of ERISA and section 412 of the Code), whether or not
waived, exists with respect to any Plan (other than a Multiemployer
Plan). No liability to the PBGC has been or is expected by the
Company or any ERISA Affiliate to be incurred with respect to any Plan
(other than a Multiemployer Plan) by the Company, any Subsidiary or
any ERISA Affiliate which is or would be materially adverse to the
business, property or assets, condition (financial or otherwise) or
operations of the Company and its Subsidiaries taken as a whole.
Neither the Company, any Subsidiary nor any ERISA Affiliate has
incurred or presently expects to incur any withdrawal liability under
Title IV of ERISA with respect to any Multiemployer Plan which is or
would be materially adverse to the business, property or assets,
condition (financial or otherwise) or operations of the Company and
its Subsidiaries taken as a whole. The execution and delivery of this
Agreement and the issuance and sale of the Notes will be exempt from
or will not involve any transaction which is subject to the
prohibitions of section 406 of ERISA and will not involve any
transaction in connection with which a penalty could be imposed under
section 502(i) of ERISA or a tax could be imposed pursuant to section
4975 of the Code. The representation by the Company in the next
preceding sentence is made in reliance upon and subject to the
accuracy of the representation of each Purchaser in paragraph 9B as to
the source of funds to be used by it to purchase any Notes.
8K. Governmental Consent. Neither the nature of the
Company or of any Subsidiary, nor any of their respective businesses
or properties, nor any relationship between the Company or any
Subsidiary and any other Person, nor any circumstance in connection
with the offering, issuance, sale or delivery of the Notes is such as
to require any authorization, consent, approval or any action by or
notice to or filing with any court or administrative or governmental
body (other than routine filings after the Closing Day for any Notes
with the Securities and Exchange Commission and/or state Blue Sky
authorities) in connection with the execution and delivery of this
Agreement, the offering, issuance, sale or delivery of the Notes or
fulfillment of or compliance with the terms and provisions hereof or
of the Notes.
8L. Environmental Compliance. The Company and its
Subsidiaries and all of their respective properties and facilities
have complied at all times and in all respects with all foreign,
federal, state, local and regional statutes, laws, ordinances and
judicial or administrative orders, judgments, rulings and regulations
relating to protection of the environment except, in any such case,
where failure to comply could not reasonably be expected to result in
a material adverse effect on the business, condition (financial or
otherwise) or operations of the Company and its Subsidiaries taken as
a whole.
8M. Regulatory Status. Neither the Company nor any
Subsidiary is (i) an "Investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, (ii) a "holding company" or a
"subsidiary company" or an "affiliate" of a "holding company" or
a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Act of 1935, as amended, or (iii) a "public
utility" within the meaning of the Federal Power Act, as amended.
8N. Section 144A. The Notes are not of the same class as
securities, if any, of the Company listed on a national securities
exchange registered under Section 6 of the Exchange Act or quoted in a
U.S. automated inter-dealer quotation system.
8O. Absence of Financing Statements, etc. Except with
respect to Liens permitted by paragraph 6C(1) hereof, there is no
financing statement, security agreement, chattel mortgage, real estate
mortgage or other document filed or recorded with any filing records,
registry or other public office, that purports to cover, affect or
give notice of any present or possible future Lien on, or security
interest in, any assets or property of the Company or any of its
Subsidiaries or any rights relating thereto.
8P. Disclosure. Neither this Agreement nor any other
document, certificate or statement furnished to any Purchaser by or on
behalf of the Company in connection herewith contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein and therein
not misleading. There is no state of affairs or set of circumstances
peculiar to the Company or any of its Subsidiaries which materially
adversely affects or in the future may (so far as the Company can now
reasonably foresee) materially adversely affect the business, property
or assets, condition (financial or otherwise) or operations of the
Company or any of its Subsidiaries taken as a whole and which has not
been set forth in this Agreement.
8Q. Hostile Tender Offers. None of the proceeds of the
sale of any Notes will be used to finance a Hostile Tender Offer.
9. REPRESENTATIONS OF THE PURCHASERS.
Each Purchaser represents as follows:
9A. Nature of Purchase. Such Purchaser is acquiring the
Notes for investment purposes only and such Purchaser is not acquiring
the Notes purchased by it hereunder with a view to or for sale in
connection with any distribution thereof within the meaning of the
Securities Act, provided that the disposition of such Purchaser's
property (in accordance with the terms of this Agreement) shall at all
times be and remain within its control.
9B. Source of Funds. The source of the funds being used by
such Purchaser to pay the purchase price of the Notes being purchased
by such Purchaser hereunder constitutes assets allocated to: (i) the
"insurance company general account" of such Purchaser (as such term
is defined under Section V of the United States Department of Labor's
Prohibited Transaction Class Exemption ("PTCE") 95-60), and as of
the date of the purchase of the Notes such Purchaser satisfies all of
the applicable requirements for relief under Sections I and IV of PTCE
95-60, (ii) a separate account maintained by such Purchaser in which
no employee benefit plan, other than employee benefit plans identified
on a list which has been furnished by such Purchaser to the Company,
participates to the extent of 10% or more or (iii) an investment fund,
the assets of which do not include any assets of any employee benefit
plan. For the purpose of this paragraph 9B, the terms "separate
account" and "employee benefit plan" shall have the respective
meanings specified in section 3 of ERISA.
10. DEFINITIONS; ACCOUNTING MATTERS. For the purpose of
this Agreement, the terms defined in paragraphs 10A and 10B (or within
the text of any other paragraph) shall have the respective meanings
specified therein and all accounting matters shall be subject to
determination as provided in paragraph 10C.
10A. Yield-Maintenance Terms.
"Called Principal" shall mean, with respect to any
Note, the principal of such Note that is to be prepaid pursuant to
paragraph 4C or is declared to be immediately due and payable pursuant
to paragraph 7A, as the context requires.
"Discounted Value" shall mean, with respect to the
Called Principal of any Note, the amount obtained by discounting all
Remaining Scheduled Payments with respect to such Called Principal
from their respective scheduled due dates to the Settlement Date with
respect to such Called Principal, in accordance with accepted
financial practice and at a discount factor (as converted to reflect
the periodic basis on which interest on such Note is payable, if
payable other than on a semi-annual basis) equal to the Reinvestment
Yield with respect to such Called Principal.
"Reinvestment Yield" shall mean, with respect to the
Called Principal of any Note, the yield to maturity implied by (i)
0.50% over the yields reported, as of 10:00 A.M. (New York City local
time) on the Business Day next preceding the Settlement Date with
respect to such Called Principal, on the display designated as "Page
678" on the Telerate Service (or such other display as may replace
page 678 on the Telerate Service) for actively traded U.S. Treasury
securities having a maturity equal to the Remaining Average Life of
such Called Principal as of such Settlement Date, or if such yields
shall not be reported as of such time or the yields reported as of
such time shall not be ascertainable, (ii) the Treasury Constant
Maturity Series yields reported, for the latest day for which such
yields shall have been so reported as of the Business Day next
preceding the Settlement Date with respect to such Called Principal,
in Federal Reserve Statistical Release H.15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury securities
having a constant maturity equal to the Remaining Average Life of such
Called Principal as of such Settlement Date. Such implied yield shall
be determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between yields
reported for various maturities.
"Remaining Average Life" shall mean, with respect to
the Called Principal of any Note, the number of years (calculated to
the nearest one-twelfth year) obtained by dividing (i) such Called
Principal into (ii) the sum of the products obtained by multiplying
(a) each Remaining Scheduled Payment of such Called Principal (but not
of interest thereon) by (b) the number of years (calculated to the
nearest one-twelfth year) which will elapse between the Settlement
Date with respect to such Called Principal and the scheduled due date
of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" shall mean, with
respect to the Called Principal of any Note, all payments of such
Called Principal and interest thereon that would be due on or after
the Settlement Date with respect to such Called Principal if no
payment of such Called Principal were made prior to its scheduled due
date.
"Settlement Date" shall mean, with respect to the
Called Principal of any Note, the date on which such Called Principal
is to be prepaid pursuant to paragraph 4C or is declared to be
immediately due and payable pursuant to paragraph 7A, as the context
requires.
"Yield-Maintenance Amount" shall mean, with respect
to any Note, an amount equal to the excess, if any, of the Discounted
Value of the Called Principal of such Note over the sum of (i) such
Called Principal plus (ii) interest accrued thereon as of (including
interest due on) the Settlement Date with respect to such Called
Principal. The Yield-Maintenance Amount shall in no event be less
than zero.
10B. Other Terms.
"Acceptance" shall have the meaning specified in
paragraph 2B(5).
"Acceptance Day" shall have the meaning specified in
paragraph 2B(5).
"Acceptance Window" shall mean, with respect to any
interest rate quote made by Prudential pursuant to paragraph 2B(4),
the time period designated by Prudential during which the Company may
elect to accept such interest rate quote as to not less than
$5,000,000 in aggregate principal amount of Shelf Notes specified in
the related Request for Purchase.
"Accepted Note" shall have the meaning specified in
paragraph 2B(5).
"Affiliate" shall mean any Person directly or
indirectly controlling, controlled by, or under direct or indirect
common control with, the Company, except a Subsidiary. A Person shall
be deemed to control a corporation if such Person possesses, directly
or indirectly, the power to direct or cause the direction of the
management and policies of such corporation, whether through the
ownership of voting securities, by contract or otherwise.
"Authorized Officer" shall mean (i) in the case of
the Company or any Subsidiary, its chief executive officer, its chief
financial officer, its treasurer, its corporate secretary, any vice
president of such Person designated as an "Authorized Officer" of
such Person in the Information Schedule attached hereto or, in the
case of the Company, any vice president of the Company designated as
an "Authorized Officer" of the Company for the purpose of this
Agreement in an Officer's Certificate executed by the Company's chief
executive officer or chief financial officer and delivered to
Prudential, and (ii) in the case of Prudential, any officer of
Prudential designated as its "Authorized Officer" in the Information
Schedule or any officer of Prudential designated as its "Authorized
Officer" for the purpose of this Agreement in a certificate executed
by one of its Authorized Officers. Any action taken under this
Agreement on behalf of the Company by any individual who on or after
the date of this Agreement shall have been an Authorized Officer of
the Company and whom Prudential in good faith believes to be an
Authorized Officer of the Company at the time of such action shall be
binding on the Company even though such individual shall have ceased
to be an Authorized Officer of the Company, and any action taken under
this Agreement on behalf of Prudential by any individual who on or
after the date of this Agreement shall have been an Authorized Officer
of Prudential and whom the Company in good faith believes to be an
Authorized Officer of Prudential at the time of such action shall be
binding on Prudential even though such individual shall have ceased to
be an Authorized Officer of Prudential.
"Available Facility Amount" shall have the meaning
specified in paragraph 2B(1).
"Bankruptcy Law" shall have the meaning specified in
clause (viii) of paragraph 7A.
"Business Day" shall mean any day other than (i) a
Saturday or a Sunday, (ii) a day on which commercial banks in New York
City are required or authorized to be closed and (iii) for purposes of
paragraph 2B(3) hereof only, a day on which The Prudential Insurance
Company of America is not open for business.
"Cancellation Date" shall have the meaning specified
in paragraph 2B(8)(iv).
"Cancellation Fee" shall have the meaning specified
in paragraph 2B(8)(iv).
"Capitalized Lease Obligation" shall mean any rental
obligation which, under generally accepted accounting principles, is
or will be required to be capitalized on the books of the Company or
any Subsidiary, taken at the amount thereof accounted for as
indebtedness (net of interest expenses) in accordance with such
principles.
"Closing Day" shall mean, with respect to the Series
A Notes, the Series A Closing Day and, with respect to any Accepted
Note, the Business Day specified for the closing of the purchase and
sale of such Accepted Note in the Request for Purchase of such
Accepted Note, provided that (i) if the Company and the Purchaser
which is obligated to purchase such Accepted Note agree on an earlier
Business Day for such closing, the "Closing Day" for such Accepted
Note shall be such earlier Business Day, and (ii) if the closing of
the purchase and sale of such Accepted Note is rescheduled pursuant to
paragraph 2B(7), the Closing Day for such Accepted Note, for all
purposes of this Agreement except references to "original Closing
Day" in paragraph 2B(8)(iii), shall mean the Rescheduled Closing Day
with respect to such Accepted Note.
"Code" shall mean the Internal Revenue Code of 1986,
as amended.
"Competitor" shall mean and include any Person which
has any of the following Standard Industrial Classification Codes
("SIC Codes"): 3531, 3585 and 3731.
"Confidential Information" shall mean any non-public
or proprietary information delivered or made available by or on behalf
of the Company or any Subsidiary to a Purchaser or a Transferee (as
the case may be), including without limitation any non-public
information obtained pursuant to paragraph 5A or 5C, in connection
with or pursuant to this Agreement which is proprietary in nature, but
in no event shall include information (i) which was publicly known or
otherwise known to such Purchaser or Transferee (as the case may be)
at the time of disclosure (except pursuant to disclosure in connection
with this Agreement), (ii) which subsequently becomes publicly known
through no act or omission by such Purchaser or Transferee (as the
case may be), or (iii) which otherwise becomes known to such Purchaser
or Transferee, other than through disclosure by the Company or from a
Person obligated not to disclose under this Agreement.
"Confirmation of Acceptance" shall have the meaning
specified in paragraph 2B(5).
"Consolidated" shall mean the consolidation of the
accounts of the Company and its Subsidiaries in accordance with
generally accepted accounting principles including principles of
consolidation.
"Consolidated Debt Service" shall mean, for any
period, the sum of (i) Consolidated Interest Expense plus (i)
scheduled principal payments of all indebtedness for (A) borrowed
money of the Company and its Subsidiaries on a consolidated basis and
(B) all Capitalized Lease Obligations of the Company and its
Subsidiaries on a consolidated basis occurring during such period.
The applicable period shall be for the four consecutive fiscal
quarters ending as of the date of determination.
"Consolidated Interest Expense" shall mean for any
period, all interest expense, including the amortization of debt
discount and premium and the interest component with respect to
Capitalized Lease Obligations for the Company and its Subsidiaries on
a consolidated basis determined in accordance with GAAP applied on a
consistent basis. The applicable period shall be for the four
consecutive quarters ending as of the date of determination.
"Consolidated Net Income" shall mean, with respect to
any period, the net income of the Company and its Subsidiaries
determined on a consolidated basis in accordance with generally
accepted accounting principles.
"Consolidated Net Worth" shall mean, as of any time
of determination thereof, the sum of (i) the par value (or value
stated on the books of the Company) of the capital stock of all
classes of the Company, plus (or minus in the case of a surplus
deficit) (ii) the amount of the consolidated surplus, whether capital
or earned, of the Company and its Subsidiaries after subtracting
therefrom the aggregate of treasury stock and any other contra-equity
accounts including, without limitation, minority interests; all
determined in accordance with generally accepted accounting
principles.
"Consolidated Cash Flow from Operations" shall mean,
with respect to any rolling period of four consecutive fiscal
quarters, (i) the sum of net income from continuing operations before
extraordinary items, depreciation, amortization, other non-cash
charges, interest expense and income tax expense minus (ii) non-cash
credits to net income (including unremitted earnings of any
corporation that is not a Subsidiary), in each case of the Company and
its Subsidiaries on a consolidated basis for such period and
determined in accordance with generally accepted accounting principles
with appropriate adjustments on a pro forma basis for acquisitions and
divestitures.
"Credit Agreement" shall mean that certain Credit
Agreement dated as of October 28, 1997 among the Company, NationsBank,
N.A., and others, as the same may be amended or modified from time to
time.
"Debt" shall mean, with respect to any Person,
without duplication;
(i) all indebtedness for borrowed money of such Person,
(ii) all indebtedness of such Person representing the
deferred purchase price of property or services (other than
accounts payable arising in the ordinary course of business and
payable on terms customary in trade) or evidenced by notes
payable,
(iii) all obligations of such Person secured by any Lien
with respect to any property owned by such Person (whether or not
it has assumed or otherwise become liable for such liabilities)
or payable out of the proceeds of production from property now or
hereafter acquired,
(iv) all obligations of such Person (excluding any reserves
established in accordance with generally accepted accounting
principles) which are due more than one year from the date of
creation thereof and which would be required to be shown as a
liability on a balance sheet of such Person prepared in
accordance with generally accepted accounting principles,
(v) all Capitalized Lease Obligations of such Person,
(vi) net liabilities under hedging arrangements of such
Person determined in accordance with generally accepted
accounting principles,
(vii) all indebtedness of others with respect to which
such Person has become liable by way of a Guarantee.
"Debt Service Coverage Ratio" shall mean as of the
last day of any fiscal quarter, the ratio of Consolidated Cash Flow
from Operations for the period of four consecutive fiscal quarters
ending as of such day to Consolidated Debt Service determined as of
such day.
"Delayed Delivery Fee" shall have the meaning
specified in paragraph 2B(8)(iii).
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
"ERISA Affiliate" shall mean any corporation which is
a member of the same controlled group of corporations as the Company
within the meaning of section 414(b) of the Code, or any trade or
business which is under common control with the Company within the
meaning of section 414(c) of the Code.
"Event of Default" shall mean any of the events
specified in paragraph 7A, provided that there has been satisfied any
requirement in connection with such event for the giving of notice, or
the lapse of time, or the happening of any further condition, event or
act, and "Default" shall mean any of such events, whether or not any
such requirement has been satisfied.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Facility" shall have the meaning specified in
paragraph 2B(1).
"Foreign Subsidiary" shall mean any corporation
organized under the laws of any jurisdiction other than the laws of
any state of the United States of America, Canada, or any province of
Canada, which conducts the major portion of its business in and makes
the major portion of its sales to Persons located outside of the
United States of America or Canada, and at least 51% of the total
combined voting power of all classes of Voting Stock of which shall,
at the time as of which any determination is being made, be owned by
the Company either directly or through Subsidiaries or Foreign
Subsidiaries.
"GAAP" shall mean generally accepted accounting
principles consistently applied.
"Guarantee" shall mean, with respect to any Person,
any direct or indirect liability, contingent or otherwise, of such
Person with respect to any indebtedness, lease, dividend or other
obligation of another, including, without limitation, any such
obligation directly or indirectly guaranteed, endorsed (otherwise than
for collection or deposit in the ordinary course of business) or
discounted or sold with recourse by such Person, or in respect of
which such Person is otherwise directly or indirectly liable,
including, without limitation, any such obligation in effect
guaranteed by such Person through any agreement (contingent or
otherwise) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the
payment or discharge of such obligation (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to
maintain the solvency or any balance sheet or other financial
condition of the obligor of such obligation, or to make payment for
any products, materials or supplies or for any transportation or
service, regardless of the non-delivery or non-furnishing thereof, in
any such case if the purpose or intent of such agreement is to provide
assurance that such obligation will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders
of such obligation will be protected against loss in respect thereof.
The amount of any Guarantee shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee obligation is made and
(b) the maximum amount for which such guaranteeing Person may be
liable pursuant to the terms of the instrument embodying such
Guarantee obligation, unless such primary obligation and the maximum
amount for which such guaranteeing Person may be liable are not stated
or determinable, in which case the amount of such Guarantee obligation
shall be such guaranteeing Person's maximum reasonably anticipated
liability in respect thereof on a worse case basis as reasonably
determined by the Company in good faith.
"Hedge Treasury Note(s) " shall mean, with respect to
any Accepted Note, the United States Treasury Note or Notes whose
duration (as determined by Prudential) most closely matches the
duration of such Accepted Note.
"Hostile Tender Offer" shall mean, with respect to
the use of proceeds of any Note, any offer to purchase, or any
purchase of, shares of capital stock of any corporation or equity
interests in any other entity, or securities convertible into or
representing the beneficial ownership of, or rights to acquire, any
such shares or equity interests, if such shares, equity interests,
securities or rights are of a class which is publicly traded on any
securities exchange or in any over-the-counter market, other than
purchases of such shares, equity interests, securities or rights
representing less than 5% of the equity interests or beneficial
ownership of such corporation or other entity for portfolio investment
purposes, and such offer or purchase has not been duly approved by the
board of directors of such corporation or the equivalent governing
body of such other entity prior to the date on which the Company makes
the Request for Purchase of such Note.
"including" shall mean, unless the context clearly
requires otherwise, "including without limitation".
"Institutional Investor" shall mean any insurance
company, bank, finance company, mutual fund, registered money or asset
manager, savings and loan association, credit union, registered
investment advisor, pension fund, investment company, licensed broker
or dealer, "qualified institutional buyer" (as such term is defined
under Rule 144A promulgated under the Securities Act, or any successor
law, rule or regulation) or "accredited investor" (as such term is
defined under Regulation D promulgated under the Securities Act, or
any successor law, rule or regulation).
"Intercreditor Agreement" shall mean an agreement in
form and substance reasonably acceptable to the Required Holder(s)
which provides for the ratable sharing with the holder(s) from time to
time of the Notes of all payments and other proceeds received from any
Subsidiary by the financial institutions parties to the Credit
Agreement.
"Issuance Period" shall have the meaning specified in
paragraph 2B(2).
"Lien" shall mean any mortgage, pledge, security
interest, encumbrance, lien (statutory or otherwise) or charge of any
kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any lease in the
nature thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction) or
any other type of preferential arrangement for the purpose, or having
the effect, of protecting a creditor against loss or securing the
payment or performance of an obligation.
"Multiemployer Plan" shall mean any Plan which is a
" multiemployer plan" (as such term is defined in section 4001(a)(3)
of ERISA.
"Notes" shall have the meaning specified in paragraph
1B.
"Officer's Certificate" shall mean a certificate
signed in the name of the Company by an Authorized Officer of the
Company.
"Percentage of Assets Transferred" shall mean, with
respect to each asset Transferred pursuant to clause (iii) of
paragraph 6C(6) or clause (ii) of paragraph 6C(4), the ratio
(expressed as a percentage) of (i) the value of such asset (which
value, with respect to each asset, shall be the higher of its fair
market value or its net book value on the date of its Transfer) to
(ii) Consolidated assets of the Company and its Subsidiaries
(determined as of the last day of the fiscal quarter immediately
preceding the date of such Transfer).
"Percentage of Earnings Capacity Transferred" shall
mean, with respect to each asset Transferred pursuant to clause (iii)
of paragraph 6C(6) or clause (ii) of paragraph 6C(4), the ratio
(expressed as a percentage) of (i) aggregate net income produced by,
or attributable to, such asset during the four fiscal quarter period
most recently ended prior to the effective date of such Transfer to
(ii) consolidated net income of the Company and its Subsidiaries for
such four fiscal quarter period.
"Person" shall m ean and include an individual, a
partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or
agency thereof.
"Plan" shall mean any employee pension benefit plan
(as such term is defined in section 3 of ERISA) which is or has been
established or maintained, or to which contributions are or have been
made, by the Company or any ERISA Affiliate.
"Priority Debt" shall mean the sum of (i) Debt of the
Company which is secured by a Lien which is not permitted by clauses
(i) through (x) of paragraph 6C(1) and (ii) Debt of any Subsidiary
(including, but not limited to, any Debt of a Subsidiary which
consists of a Guarantee of Debt of the Company), excluding however (i)
Debt of Subsidiaries owing to the Company or any Wholly-Owned
Subsidiary, (ii) until October 2, 1998, Debt of Subsidiaries with
respect to the Credit Agreement, (iii) Debt of Subsidiaries which is
subject to an Intercreditor Agreement, and (iv) Debt of Subsidiaries
with respect to the Notes.
"Prudential" shall mean The Prudential Insurance
Company of America.
"Prudential Affiliate" shall mean any corporation or
other entity all of the Voting Stock (or equivalent voting securities
or interests) of which is owned by Prudential either directly or
through Prudential Affiliates.
"Purchasers" shall mean Prudential with respect to
the Series A Notes and, with respect to any Accepted Notes, Prudential
and/or the Prudential Affiliate(s), which are purchasing such Accepted
Notes.
"Related Party" shall mean (i) any Significant
Stockholder, (ii) all persons to whom any Significant Stockholder is
related by blood, adoption or marriage and (iii) all Affiliates of the
foregoing Persons.
"Request for Purchase" shall have the meaning
specified in paragraph 2B(3).
"Required Holder(s)" shall mean the holder or holders
of at least 51% of the aggregate principal amount of the Notes or of a
Series of Notes, as the context may require, from time to time
outstanding.
"Rescheduled Closing Day" shall have the meaning
specified in paragraph 2B(7).
"Responsible Officer" shall mean the chief executive
officer, chief operating officer, chief financial officer or chief
accounting officer of the Company, general counsel of the Company or
any other officer of the Company involved principally in its financial
administration or its controllership function.
"Securities Act" shall mean the Securities Act of
1933, as amended.
"Series" shall have the meaning specified in
paragraph 1B.
"Series A Closing Day" shall have the meaning
specified in paragraph 2A.
"Series A Note(s)" shall have the meaning specified
in paragraph 1A.
"Shelf Notes" shall have the meaning specified in
paragraph 1B.
"Significant Holder" shall mean (i) Prudential, so
long as Prudential or any Prudential Affiliate shall hold (or be
committed under this Agreement to purchase) any Note, and (ii) any
other Institutional Investor of at least 10% of the aggregate
principal amount of the Notes from time to time outstanding.
"Significant Stockholder" shall mean and include any
Person who owns, beneficially or of record, directly or indirectly, at
any time during any year with respect to which a computation is being
made, either individually or together with all Persons to whom such
Person is related by blood, adoption or marriage, 5% or more of the
Voting Stock of the Company.
"Structuring Fee" shall have the meaning specified in
paragraph 2B(8)(i).
"Subsidiary" shall mean any corporation organized
under the laws of any state of the United States of America, Canada,
or any province of Canada, which conducts the major portion of its
business in and makes the major portion of its sales to Persons
located in the United States of America or Canada, and at least 51% of
the total combined voting power of all classes of Voting Stock of
which shall, at the time as of which any determination is being made,
be owned by the Company either directly or through Subsidiaries.
"Subsidiary Guarantee Agreement" shall mean that
certain Subsidiary Guarantee Agreement, dated as of the Series A
Closing Day, made by the Subsidiary Guarantors for the benefit of the
holder(s) from time to time of the Notes in the form of Exhibit E
hereto, as the same may be amended, restated, supplemented or
otherwise modified from time to time in accordance with the terms
thereof.
"Subsidiary Guarantor" and "Subsidiary Guarantors"
shall mean and include MANITOWOC MEC, INC., a Nevada corporation,
MANITEX, INC., a Texas corporation, FEMCO MACHINE COMPANY, INC., a
Nevada corporation, WEST-MANITOWOC, INC., a Wisconsin corporation,
NORTH CENTRAL CRANE & EXCAVATOR SALES CORP., a Nevada corporation,
MANITOWOC RE-MANUFACTURING COMPANY, INC., a Wisconsin corporation,
KOLPAK MANUFACTURING COMPANY, a Tennessee corporation, MANITOWOC
EQUIPMENT WORKS, INC., a Nevada corporation, MANITOWOC MARINE GROUP,
INC., a Nevada corporation, MANITOWOC ICE, INC., a Wisconsin
corporation, KMT REFRIGERATION, INC., a Wisconsin corporation,
MANITOWOC CRANES, INC., a Wisconsin corporation, SERVEND
INTERNATIONAL, INC., a Nevada corporation, MANITOWOC CP, INC., a
Nevada corporation, MANITOWOC CRANE GROUP, INC., a Nevada corporation,
MANITOWOC FP, INC., a Nevada corporation, and MANITOWOC-FOODSERVICE
GROUP, INC., a Nevada corporation.
"Three Year Percentage of Assets Transferred" shall
mean, with respect to any twelve consecutive fiscal quarter period,
the sum of the Percentages of Assets Transferred for the assets of the
Company and its Subsidiaries that are Transferred during such period
pursuant to clause (iii) of paragraph 6C(6) and clause (ii) of
paragraph 6C(4).
"Three Year Percentage of Earnings Capacity
Transferred" shall mean, with respect to any twelve consecutive
fiscal quarter period, the sum of the Percentages of Earnings Capacity
Transferred for the assets of the Company and its Subsidiaries that
are Transferred during such period pursuant to clause (iii) of
paragraph 6C(6) and clause (ii) of paragraph 6C(4).
"Transaction Party" shall mean the Company and each
Subsidiary Guarantor.
"Transfer" shall mean, with respect to any item, the
sale, exchange, conveyance, lease, transfer or other disposition of
such item, provided such transfer is effected in compliance with the
provisions of this Agreement.
"Transferee" shall mean any direct or indirect
transferee of all or any part of any Note purchased by any Purchaser
under this Agreement.
"Voting Stock" shall mean, with respect to any
corporation, any shares of stock of such corporation whose holders are
entitled under ordinary circumstances to vote for the election of
directors of such corporation (irrespective of whether at the time
stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"Wholly-Owned Subsidiary" shall mean any Subsidiary
all of the stock of every class of which is, at the time as of which
any determination is being made, owned by the Company either directly
or through a wholly-owned Subsidiary.
10C. Accounting Principles, Terms and Determinations. All
references in this Agreement to "generally accepted accounting
principles" shall be deemed to refer to generally accepted accounting
principles in effect in the United States at the time of application
thereof. Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all determinations with respect to
accounting matters hereunder shall be made, and all unaudited
financial statements and certificates and reports as to financial
matters required to be furnished hereunder shall be prepared, in
accordance with generally accepted accounting principles applied on a
basis consistent with the most recent audited financial statements
delivered pursuant to clause (ii) of paragraph 5A or, if no such
statements have been so delivered, the most recent audited financial
statements referred to in clause (i) of paragraph 8B. Any reference
herein to any specific citation, section or rule of law, statute or
regulation shall refer to such citation, section or rule as the same
may be may be modified, amended or replaced from time to time.
11. MISCELLANEOUS.
11A. Note Payments. The Company agrees that, so long as any
Purchaser shall hold any Note, it will make payments of principal of,
interest on, and any Yield-Maintenance Amount payable with respect to,
such Note, which comply with the terms of this Agreement, by wire
transfer of immediately available funds for credit (not later than
12:00 noon, New York City local time, on the date due) to (i) the
account or accounts of such Purchaser specified in the Purchaser
Schedule attached hereto in the case of any Series A Note, (ii) the
account or accounts of such Purchaser specified in the Confirmation of
Acceptance with respect to such Note in the case of any Shelf Note or
(iii) such other account or accounts in the United States as such
Purchaser may from time to time designate in writing, notwithstanding
any contrary provision herein or in any Note with respect to the place
of payment. Each Purchaser agrees that, before disposing of any Note,
it will make a notation thereon (or on a schedule attached thereto) of
all principal payments previously made thereon and of the date to
which interest thereon has been paid. The Company agrees to afford
the benefits of this paragraph 11A to any Transferee which shall have
made the same agreement as the Purchasers have made in this paragraph
11A.
11B. Expenses. The Company agrees, whether or not the
transactions contemplated hereby shall be consummated, to pay, and
save Prudential, each Purchaser and any Transferee harmless against
liability for the payment of, all out-of-pocket expenses arising in
connection with such transactions, including (i) all document
production and duplication charges and the fees and expenses of any
special counsel engaged by the Purchasers or any Transferee in
connection with this Agreement, the transactions contemplated hereby
and any subsequent proposed modification of, or proposed consent
under, this Agreement, whether or not such proposed modification shall
be effected or proposed consent granted, and (ii) the costs and
expenses, including reasonable attorneys' fees, incurred by any
Purchaser or any Transferee in enforcing (or determining whether or
how to enforce) any rights under this Agreement or the Notes or in
responding to any subpoena or other legal process or informal
investigative demand issued in connection with this Agreement or the
transactions contemplated hereby or by reason of any Purchaser's or
any Transferee's having acquired any Note, including without
limitation costs and expenses incurred in any bankruptcy case. The
obligations of the Company under this paragraph 11B shall survive the
transfer of any Note or portion thereof or interest therein by any
Purchaser or any Transferee and the payment of any Note.
11C. Consent to Amendments. This Agreement may be amended,
and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, if the Company
shall obtain the written consent to such amendment, action or omission
to act, of the Required Holder(s) of the Notes of each Series except
that, (i) with the written consent of the holders of all Notes of a
particular Series, and if an Event of Default shall have occurred and
be continuing, of the holders of all Notes of all Series, at the time
outstanding (and such written consents), the Notes of such Series may
be amended or the provisions thereof waived to change the maturity
thereof, to change or affect the principal thereof, or to change or
affect the rate or time of payment of interest on or any Yield-
Maintenance Amount payable with respect to the Notes of such Series,
(ii) without the written consent of the holder or holders of all Notes
at the time outstanding, no amendment to or waiver of the provisions
of this Agreement shall change or affect the provisions of paragraph
7A or this paragraph 11C insofar as such provisions relate to
proportions of the principal amount of the Notes of any Series, or the
rights of any individual holder of Notes, required with respect to any
declaration of Notes to be due and payable or with respect to any
consent, amendment, waiver or declaration, (iii) with the written
consent of Prudential (and without the consent of any other holder of
the Notes) the provisions of paragraph 2B may be amended or waived
(except insofar as any such amendment or waiver would affect any
rights or obligations with respect to the purchase and sale of Notes
which shall have become Accepted Notes prior to such amendment or
waiver), and (iv) with the written consent of all of the Purchasers
which shall have become obligated to purchase Accepted Notes of any
Series (and not without the written consent of all such Purchasers),
any of the provisions of paragraphs 2B and 3 may be amended or waived
insofar as such amendment or waiver would affect only rights or
obligations with respect to the purchase and sale of the Accepted
Notes of such Series or the terms and provisions of such Accepted
Notes. Each holder of any Note at the time or thereafter outstanding
shall be bound by any consent authorized by this paragraph 11C,
whether or not such Note shall have been marked to indicate such
consent, but any Notes issued thereafter may bear a notation referring
to any such consent. No course of dealing between the Company and the
holder of any Note nor any delay in exercising any rights hereunder or
under any Note shall operate as a waiver of any rights of any holder
of such Note. As used herein and in the Notes, the term "this
Agreement" and references thereto shall mean this Agreement as it may
from time to time be amended or supplemented.
11D. Form, Registration, Transfer and Exchange of Notes;
Lost Notes. The Notes are issuable as registered notes without
coupons in denominations of at least $1,000,000, except as may be
necessary to reflect any principal amount not evenly divisible by
$1,000,000. The Company shall keep at its principal office a register
in which the Company shall provide for the registration of Notes and
of transfers of Notes. Upon surrender for registration of transfer of
any Note at the principal office of the Company, the Company shall, at
its expense, execute and deliver one or more new Notes of like tenor
and of a like aggregate principal amount, registered in the name of
such transferee or transferees. At the option of the holder of any
Note, such Note may be exchanged for other Notes of like tenor and of
any authorized denominations, of a like aggregate principal amount,
upon surrender of the Note to be exchanged at the principal office of
the Company. Whenever any Notes are so surrendered for exchange, the
Company shall, at its expense, execute and deliver the Notes which the
holder making the exchange is entitled to receive. Each prepayment of
principal payable on each prepayment date upon each new Note issued
upon any such transfer or exchange shall be in the same proportion to
the unpaid principal amount of such new Note as the prepayment of
principal payable on such date on the Note surrendered for
registration of transfer or exchange bore to the unpaid principal
amount of such Note. No reference need be made in any such new Note
to any prepayment or prepayments of principal previously due and paid
upon the Note surrendered for registration of transfer or exchange.
Every Note surrendered for registration of transfer or exchange shall
be duly endorsed, or be accompanied by a written instrument of
transfer duly executed, by the holder of such Note or such holder's
attorney duly authorized in writing. Any Note or Notes issued in
exchange for any Note or upon transfer thereof shall carry the rights
to unpaid interest and interest to accrue which were carried by the
Note so exchanged or transferred, so that neither gain nor loss of
interest shall result from any such transfer or exchange. Upon
receipt of written notice from the holder of any Note of the loss,
theft, destruction or mutilation of such Note and, in the case of any
such loss, theft or destruction, upon receipt of such holder's
unsecured indemnity agreement, or in the case of any such mutilation
upon surrender and cancellation of such Note, the Company will make
and deliver a new Note, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Note.
11E. Persons Deemed Owners; Participations. Prior to due
presentment for registration of transfer, the Company may treat the
Person in whose name any Note is registered as the owner and holder of
such Note for the purpose of receiving payment of principal of and
interest on, and any Yield-Maintenance Amount payable with respect to,
such Note and for all other purposes whatsoever, whether or not such
Note shall be overdue, and the Company shall not be affected by notice
to the contrary. Subject to the preceding sentence, the holder of any
Note may from time to time grant participations in all or any part of
such Note to any Person on such terms and conditions as may be
determined by such holder in its sole and absolute discretion,
provided that all such terms and conditions are in accordance with the
terms of this Agreement.
11F. Survival of Representations and Warranties; Entire
Agreement. All representations and warranties contained herein or
made in writing by or on behalf of the Company in connection herewith
shall survive the execution and delivery of this Agreement and the
Notes, the transfer by any Purchaser of any Note or portion thereof or
interest therein and the payment of any Note in accordance with the
terms of this Agreement, and may be relied upon by any Transferee,
regardless of any investigation made at any time by or on behalf of
any Purchaser or any Transferee. Subject to the preceding sentence,
this Agreement and the Notes embody the entire agreement and
understanding between the parties hereto with respect to the subject
matter hereof and supersede all prior agreements and understandings
relating to such subject matter.
11G. Successors and Assigns. All covenants and other
agreements in this Agreement contained by or on behalf of any of the
parties hereto shall bind and inure to the benefit of the respective
successors and permitted assigns of the parties hereto (including,
without limitation, any Transferee) whether so expressed or not.
11H. Independence of Covenants. All covenants hereunder
shall be given independent effect so that if a particular action or
condition is prohibited by any one of such covenants, the fact that it
would be permitted by an exception to, or otherwise be in compliance
within the limitations of, another covenant shall not avoid (i) the
occurrence of a Default or Event of Default if such action is taken or
such condition exists or (ii) in any way prejudice an attempt by the
holder of any Note to prohibit through equitable action or otherwise
the taking of any action by the Company or any Subsidiary which would
result in a Default or Event of Default.
11I. Notices. All written communications provided for
hereunder (other than communications provided for under paragraph 2)
shall be sent by first class mail or nationwide overnight delivery
service (with charges prepaid) and (i) if to any Purchaser, addressed
as specified for such communications in the Purchaser Schedule
attached hereto (in the case of the Series A Notes) or the Purchaser
Schedule attached to the applicable Confirmation of Acceptance (in the
case of any Shelf Notes) or at such other address as any such
Purchaser shall have specified to the Company in writing, (ii) if to
any other holder of any Note, addressed to it at such address as it
shall have specified in writing to the Company or, if any such holder
shall not have so specified an address, then addressed to such holder
in care of the last holder of such Note which shall have so specified
an address to the Company and (iii) if to the Company, addressed to it
at The Manitowoc Company, Inc., 500 South 16th Street, Manitowoc,
Wisconsin 54221-0066, Attention: Treasurer. Any communication
pursuant to paragraph 2 shall be made by the method specified for such
communication in paragraph 2, and shall be effective to create any
rights or obligations under this Agreement only if, in the case of a
telephone communication, an Authorized Officer of the party conveying
the information and of the party receiving the information are parties
to the telephone call, and in the case of a telecopier communication,
the communication is signed by an Authorized Officer of the party
conveying the information, addressed to the attention of an Authorized
Officer of the party receiving the information, and in fact received
at the telecopier terminal the number of which is listed for the party
receiving the communication in the Information Schedule or at such
other telecopier terminal as the party receiving the information shall
have specified in writing to the party sending such information.
11J. Payments Due on Non-Business Days. Anything in this
Agreement or the Notes to the contrary notwithstanding, any payment of
principal of or interest on, or Yield-Maintenance Amount payable with
respect to, any Note that is due on a date other than a Business Day
shall be made on the next succeeding Business Day. If the date for
any payment is extended to the next succeeding Business Day by reason
of the preceding sentence, the period of such extension shall not be
included in the computation of the interest payable on such Business
Day.
11K. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
11L. Descriptive Headings. The descriptive headings of the
several paragraphs of this Agreement are inserted for convenience only
and do not constitute a part of this Agreement.
11M. Satisfaction Requirement. If any agreement,
certificate or other writing, or any action taken or to be taken, is
by the terms of this Agreement required to be satisfactory to any
Purchaser, to any holder of Notes or to the Required Holder(s), unless
the context otherwise requires the determination of such satisfaction
shall be made by such Purchaser, such holder or the Required
Holder(s), as the case may be, in the reasonable commercial judgment
(exercised in good faith) of the Person or Persons making such
determination.
11N. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE
GOVERNED BY, THE INTERNAL LAW OF THE STATE OF ILLINOIS.
11O. Severalty of Obligations. The sales of Notes to the
Purchasers are to be several sales, and the obligations of Prudential
and the Purchasers under this Agreement are several obligations. No
failure by Prudential or any Purchaser to perform its obligations
under this Agreement shall relieve any other Purchaser or the Company
of any of its obligations hereunder, and neither Prudential nor any
Purchaser shall be responsible for the obligations of, or any action
taken or omitted by, any other such Person hereunder.
11P. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of
which together shall constitute one instrument.
11Q. Confidentiality Provisions. Each Purchaser (and each
Transferee by its acceptance of an interest in any Note) agrees, so
long as no Event of Default is continuing under paragraphs 7A(i),
(ii), (viii), (ix) or (x), that it will use its reasonable best
efforts to hold in confidence and not disclose any Confidential
Information without the prior written consent of the Company which
consent shall not be unreasonably denied; provided, however, that
nothing contained herein shall prevent the holder of any Note from
delivering copies of any financial statements and other documents
delivered to such holder, and disclosing any other information
disclosed to such holder, by the Company or any Subsidiary in
connection with or pursuant to this Agreement to (i) such holder's
directors, officers, employees, agents and professional consultants,
(ii) any other holder of any Note, (iii) any Institutional Investor
which is not a Competitor to which such holder offers to sell such
Note or any part thereof, (iv) any Institutional Investor which is not
a Competitor to which such holder sells or offers to sell a
participation in all or any part of such Note, (v) any Institutional
Investor which is not a Competitor from which such holder offers to
purchase any security of the Company, (vi) any federal or state
regulatory authority having jurisdiction over such holder, (vii) the
National Association of Insurance Commissioners or any similar
organization or (viii) any other Person which is not a Competitor to
which such delivery or disclosure may be reasonably necessary or
appropriate (a) in compliance with any law, rule, regulation or order
applicable to such holder, (b) in response to any subpoena or other
legal process or investigative demand, (c) in connection with any
litigation in connection with this Agreement to which such holder is a
party or (d) in order to protect such holder's investment and enforce
the rights of such holder under this Agreement; and provided further
that after notice to the Company the holders of the Notes shall be
free to correct any false or misleading information which may become
public concerning their relationship to the Company or any of its
Subsidiaries. Each Purchaser and each Transferee may in good faith
conclusively rely on a certificate of a proposed purchaser of the
Note(s) addressed and delivered to the Company and such Purchaser or
Transferee to the effect that such proposed purchaser of the Note(s)
is not a Competitor, provided that the Company has not, by written
notice to such Purchaser or Transferee delivered within five Business
Days after the Company's receipt of such certificate, objected to such
reliance on the grounds that the Company in good faith reasonably
believes such proposed purchaser of the Note(s) is a Competitor.
11R. Binding Agreement. When this Agreement is executed and
delivered by the Company and Prudential, it shall become a binding
agreement between the Company and Prudential. This Agreement shall
also inure to and each such Purchaser shall be bound by this Agreement
to the extent provided in such Confirmation of Acceptance.
11S. Company Disclosure Documents. Purchaser(s) acknowledge
receipt of a copy of the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, including Exhibits thereto, as
filed with the Securities and Exchange Commission.
11T. Termination of Subsidiary Guarantee Agreement; Pari
Passu Nature of Notes. So long as no Default or Event of Default
shall be continuing hereunder, the holders of the Notes agree to
terminate the Subsidiary Guarantee Agreement upon the termination of
the guarantees made by the Company's Subsidiaries of the Debt under
the Credit Agreement. In the event that the Company shall enter into
a new revolving credit agreement or enter into an amendment to the
Credit Agreement which extends the term thereof, increases the amounts
available thereunder or changes the rate at which interest is payable
thereunder, then (i) the Company shall cause the financial
institutions parties to such new revolving credit agreement or amended
Credit Agreement to enter into an Intercreditor Agreement or (ii) the
Company shall not permit its Subsidiaries to Guarantee the Debt
outstanding under such new revolving credit agreement or amended
Credit Agreement.
Very truly yours,
THE MANITOWOC COMPANY, INC.
By: /s/ Philip D. Keener
---------------------
Treasurer
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ Scott von Fischer
-----------------------
Senior Vice President
SUBSIDIARY GUARANTEE AGREEMENT
(The Manitowoc Company, Inc.)
This Subsidiary Guarantee Agreement (this "Guarantee"),
dated as of April 2, 1998, is made by MANITOWOC MEC, INC., a Nevada
corporation, MANITEX, INC., a Texas corporation, FEMCO MACHINE
COMPANY, INC., a Nevada corporation, WEST-MANITOWOC, INC., a Wisconsin
corporation, NORTH CENTRAL CRANE & EXCAVATOR SALES CORP., a Nevada
corporation, MANITOWOC RE-MANUFACTURING COMPANY, INC., a Wisconsin
corporation, KOLPAK MANUFACTURING COMPANY, a Tennessee corporation,
MANITOWOC EQUIPMENT WORKS, INC., a Nevada corporation, MANITOWOC
MARINE GROUP, INC., a Nevada corporation, MANITOWOC ICE, INC., a
Wisconsin corporation, KMT REFRIGERATION, INC., a Wisconsin
corporation, MANITOWOC CRANES, INC., a Wisconsin corporation, SERVEND
INTERNATIONAL, INC., a Nevada corporation, MANITOWOC CP, INC., a
Nevada corporation, MANITOWOC CRANE GROUP, INC., a Nevada corporation,
MANITOWOC FP, INC., a Nevada corporation, and MANITOWOC-FOODSERVICE
GROUP, INC., a Nevada corporation and each additional guarantor which
becomes a party hereto in accordance with paragraph 4N hereof (each
such corporation is referred to herein, individually, as a "Guarantor"
and, collectively, as the "Guarantors"), in favor of each Holder.
RECITALS:
WHEREAS, the Guarantors are, directly or indirectly, Wholly-
Owned Subsidiaries of The Manitowoc Company, Inc., a Wisconsin
corporation (the "Company");
WHEREAS, the Company and The Prudential Insurance Company of
America ("Prudential") propose to enter into a Note Purchase and
Private Shelf Agreement dated as of the date hereof (as such agreement
is amended, restated, supplemented or otherwise modified from time to
time, the "Note Agreement"), under which, subject to the terms and
conditions of the Note Agreement, Prudential will purchase $50,000,000
aggregate principal amount of the Company's 6.54% Series A Notes due
April 2, 2010, and may hereafter from time to time purchase up to an
additional $25,000,000 of Shelf Notes thereunder (collectively,
together with any notes issued in substitution or exchange therefor,
the "Notes");
WHEREAS, as a condition precedent to its willingness to
purchase the Notes thereunder, Prudential has requested, among other
things, that the Guarantors execute this Guarantee for the benefit of
the Holders;
WHEREAS, all parties agree and acknowledge that the
indebtedness and obligations contemplated by the Note Agreement are
being incurred for and will inure, in part, to the benefit of the
Guarantors; and
WHEREAS, in order to enter into the above contemplated
financing arrangements with the Company, Prudential has required that
this Guarantee be executed.
NOW THEREFORE, for value received, to satisfy one of the
conditions precedent to the purchase of the Notes, to induce
Prudential to purchase the Notes, to induce any other Holder to accept
the transfer, of all or any part of any Note, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Guarantors agree as follows:
1. DEFINITIONS.
1A. Terms Defined in this Guarantee. As used in this Guarantee,
the following terms shall have the following meanings:
"Guaranteed Obligations" shall mean all of the indebtedness,
obligations and liabilities existing on the date hereof or arising
from time to time hereafter, whether direct or indirect, joint or
several, actual, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by contract,
operation of law or otherwise, of the Company to the Holders under or
in respect of the Note Agreement or the Notes, including, without
limitation, the principal of and interest (including, without
limitation, interest accruing before, during or after any bankruptcy,
insolvency reorganization, arrangement, readjustment of debt,
liquidation or dissolution proceeding, and, if interest ceases to
accrue by operation of law by reason of any such proceeding, interest
which otherwise would have accrued in the absence of such proceeding)
and Yield Maintenance Amount, if any, on the Notes.
"Holders" and "Holder" shall mean Prudential and any other
holder of a Note who acquires such Note in compliance with the
transfer restrictions set forth in the Note Agreement.
1B. Other Definitions. Capitalized terms that are used in this
Guarantee and not defined in this Guarantee shall have the meaning
ascribed to them in the Note Agreement.
1C. Legal Principles, Terms and Determinations. Any reference
herein to any specific citation, section or rule of law, statute or
regulation shall refer to such new, replacement or analogous citation,
section or rule should such citation, section or rule be modified,
amended or replaced from time to time.
2. THE GUARANTEE.
2A. Guarantee of Payment and Performance of Obligations. Each
Guarantor, jointly and severally, hereby absolutely, unconditionally
and irrevocably guarantees the full and prompt payment in United
States currency when due (whether at maturity, a stated prepayment
date or earlier by reason of acceleration or otherwise) and at all
times thereafter, and the due and punctual performance, of all
Guaranteed Obligations. Each Guarantor hereby agrees to pay and to
indemnify and save each Holder harmless from and against any damage,
loss, cost or expense (including reasonable attorneys' fees) which
such Holder may incur or be subject to as a consequence, direct or
indirect, of endeavoring to enforce this Guarantee or to collect all
or any part of the Guaranteed Obligations from, or in pursuing any
action against, the Company, any Guarantor or any other guarantor or
enforcing any rights of any Holder in the security for the Guaranteed
Obligations or the liabilities of any Guarantor hereunder, and any
taxes (exclusive of income taxes), fees or penalties which may be paid
or payable in connection therewith. This is a continuing guaranty of
payment and performance and not of collection. Notwithstanding any
provision of this Guarantee, all covenants, obligations, waivers and
agreements of the Guarantors under this Guarantee shall be joint and
several.
Upon an Event of Default, any Holder may, at its sole
election and without notice, proceed directly and at once against any
Guarantor to seek and enforce performance of, and to collect and
recover, the Guaranteed Obligations, or any portion thereof to the
extent due and payable under the terms of the Note Agreement (and
notwithstanding any stay with respect to the Company or any other
guarantor imposed by applicable law), without first proceeding against
the Company, any other Guarantor or any other Person or any other
security for the Guaranteed Obligations or for the liability of any
such other Person or any Guarantor hereunder. Upon an Event of Default
the Holders shall have the exclusive right to determine the
application of payments and credits, if any, from any Guarantor, the
Company or from any other Person on account of the Guaranteed
Obligations or otherwise. This Guarantee and all covenants and
agreements of each Guarantor contained herein shall continue in full
force and effect and shall not be discharged until such a time as all
of the Guaranteed Obligations shall be paid or otherwise paid in full
and no Holder shall have any commitment under the Note Agreement.
Notwithstanding any provision to the contrary contained
herein, the obligations of each Guarantor hereunder shall be limited
to an aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance under Section
548 of the U.S. Bankruptcy Code or any comparable provisions of any
applicable state law.
2B. Obligations Unconditional. The obligations of each
Guarantor under this Guarantee shall be continuing, absolute and
unconditional, irrespective of (i) the invalidity or unenforceability
of the Note Agreement or any Note or any provision thereof; (ii) the
absence of any attempt by any Holder to collect the Guaranteed
Obligations or any portion thereof from the Company or any other
guarantor of all or any portion of the Guaranteed Obligations or any
other Person or other action to enforce the same; (iii) any action
taken by any Holder that is authorized by this Guarantee; (iv) any
failure by any Holder to acquire, perfect or maintain any security
interest or lien in, or take any steps to preserve its rights to any
security for the Guaranteed Obligations or any portion thereof or for
the liability of any Guarantor hereunder or the liability of any other
guarantor of any or all of the Guaranteed Obligations; (v) any defense
arising by reason of any disability or other defense (other than a
defense of payment, unless the payment on which such defense is based
was or is subsequently invalidated, declared to be fraudulent or
preferential, otherwise avoided and/or required to be repaid to the
Company, any Guarantor or any other guarantor, as the case may be, or
the estate of any such party, a trustee, receiver or any other Person
under any bankruptcy law, state or federal law, common law or
equitable cause, in which case there shall be no defense of payment
with respect to such payment) of the Company or any other Person
liable on the Guaranteed Obligations or any portion thereof; (vi) a
Holder's election, in any proceeding instituted under Chapter 11 of
Title 11 of the Federal Bankruptcy Code (11 U.S.C. S101 et seq.) (the
"Bankruptcy Code"), of the application of Section 1111(b)(2) of the
Bankruptcy Code; (vii) any borrowing or grant of a security interest
to any Holder by the Company, as debtor-in-possession, or extension of
credit, under Section 364 of the Bankruptcy Code; (viii) the
disallowance or avoidance of all or any portion of any Holder's
claim(s) for repayment of the Guaranteed Obligations under the
Bankruptcy Code or any similar state law or the avoidance, invalidity
or unenforceability of any Lien securing the Guaranteed Obligations or
the liability of any Guarantor hereunder or of any other guarantor of
all or any part of the Guaranteed Obligations; (ix) any amendment to,
waiver or modification of, or consent, extension, indulgence or other
action or inaction under or in respect of the Notes or the Note
Agreement; (x) any change in any provision of any applicable law or
regulation; (xi) any order, judgment, writ, award or decree of any
court, arbitrator or governmental authority, domestic or foreign,
binding on or affecting any Guarantor, the Company or any other
Transaction Party or any of their assets; (xii) the charter or by-laws
of any Guarantor or the Company; (xiii) any mortgage, indenture,
lease, contract, or other agreement (including without limitation any
agreement with stockholders), instrument or undertaking to which any
Guarantor or the Company is a party or which purports to be binding on
or affect such Person or any of its assets; (xiv) any bankruptcy,
insolvency, readjustment, composition, liquidation or similar
proceeding with respect to the Company, any other Guarantor or any
other guarantor of all or any portion of any Guaranteed Obligations or
such Person's property and any failure by any Holder to file or
enforce a claim against the Company or such other Person in any such
proceeding; (xv) any failure on the part of the Company for any reason
to comply with or perform any of the terms of any other agreement with
any Guarantor; or (xvi) any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
2C. Obligations Unimpaired. The occurrence from time to time
without notice of any of the following shall not discharge or
otherwise affect the obligations of any Guarantor hereunder (which
shall remain absolute and unconditional notwithstanding any such
action or omission to act): (i) the renewal, extension, acceleration
or other change in the time for payment of, or other terms relating
to, the Guaranteed Obligations or any portion thereof, or other
modification, amendment or change in the terms of the Note Agreement
or any Note; (ii) the acceptance of partial payments on the Guaranteed
Obligations; (iii) the taking and holding of security for the
Guaranteed Obligations or any portion thereof or any other liabilities
of the Company, the obligations of any Guarantor under this Guarantee
and the obligations under any other guarantees and sureties of all or
any of the Guaranteed Obligations, and the exchange, enforcement,
waiver, release, sale, transfer, assignment, abandonment, failure to
perfect, subordination or other dealings with respect to any such
security; (iv) the application of any such security and the direction
of the order or manner of sale thereof as such Holder may determine in
its sole discretion; (v) the settlement, release, compromise,
collection or other liquidation of the Guaranteed Obligations or any
portion thereof and any security therefor or guarantee thereof in any
manner; (vi) the extension of additional loans, credit and financial
accommodations to the Company or any other Transaction Party and the
creation of additional Guaranteed Obligations; (vii) the waiver of
strict compliance with the terms of the Note Agreement or any Note and
other forbearance from asserting such Holder's rights and remedies
thereunder; (viii) the taking and holding of additional guarantees or
sureties and enforcement or forbearance from enforcement of any
guarantee or surety of any other guarantor or surety of the Guaranteed
Obligations, any portion thereof or the release or other action or
inaction with respect to any such guarantor or surety; (ix) the
assignment of this Guarantee in part or in whole in connection with
any assignment of the Guaranteed Obligations or any portion thereof;
(x) the exercise or refusal to exercise any rights against the
Company, any Guarantor or any other Person; and (xi) the application
of any sums, by whomsoever paid or however realized, to the payment of
the Guaranteed Obligations as any Holder in its sole discretion may
determine.
2D. Waivers of Guarantor. Each Guarantor waives for the benefit
of each Holder:
(i) any right to require any Holder, as a condition of
payment or performance by such Guarantor or otherwise to (a)
proceed against the Company, any other Guarantor or other
guarantor of the Guaranteed Obligations or any other Person, (b)
proceed against or exhaust any security given to or held by any
Holder in connection with the Guaranteed Obligations or any other
guarantee, or (c) pursue any other remedy available to any Holder
whatsoever;
(ii) any defense arising by reason of (a) the incapacity,
lack of authority or any disability or other defense of the
Company, including, without limitation, any defense based on or
arising out of the lack of validity or the unenforceability of
the Guaranteed Obligations or any agreement or instrument
relating thereto, (b) the cessation of the liability of the
Company from any cause other than indefeasible payment in full of
the Guaranteed Obligations or (c) any act or omission of any
Holder or any other Person which directly or indirectly, by
operation of law or otherwise, results in or aids the discharge
or release of the Company or any security given to or held by any
Holder in connection with the Guaranteed Obligations or any other
guarantee;
(iii) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that
of the principal;
(iv) (a) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of
this Guarantee and any legal or equitable discharge of such
Guarantor's or any other Guarantor's obligations hereunder;
provided, however, this provision is not intended to permit the
Holders to be paid twice for the same obligation, (b) any rights
to set-offs and counterclaims, and (c) promptness, diligence and
any requirement that any Holder protect, maintain, secure,
perfect or insure any Lien or any property subject thereto;
(v) notices (a) of nonperformance or dishonor, (b) of
acceptance of this Guarantee by such Guarantor or any other
Guarantor, (c) of default in respect of the Guaranteed
Obligations or any other guarantee, (d) of the existence,
creation or incurrence of new or additional indebtedness, arising
either from additional financing extended to the Company or
otherwise, (e) that the principal amount, or any portion thereof,
and/or any interest or Yield Maintenance Amount on any document
or instrument evidencing all or any part of the Guaranteed
Obligations is due, (f) of any and all proceedings to collect
from the Company, any Guarantor or any other guarantor of all or
any part of the Guaranteed Obligations, or from anyone else, (g)
of surrender or other handling of any security or collateral
given to any Holder to secure payment of the Guaranteed
Obligations or any guarantee therefor, (h) of renewal, extension
or modification of any of the Guaranteed Obligations, (i) of
assignment, sale or other transfer of any Note to a Transferee,
or (j) of any of the matters referred to in paragraph 2B and any
right to consent to any thereof;
(vi) presentment, demand for payment or performance and
protest and notice of protest with respect to the Guaranteed
Obligations or any guarantee with respect thereto; and
(vii) any defenses or benefits that may be derived from
or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms of
this Guarantee.
Each Guarantor agrees that no Holder shall be under any
obligation to marshall any assets in favor of any Guarantor or against
or in payment of any or all of the Guaranteed Obligations.
No Guarantor will exercise any rights which it may have
acquired by way of subrogation under this Guarantee, by any payment
made hereunder or otherwise, or accept any payment on account of such
subrogation rights, or any rights of reimbursement or indemnity or any
rights or recourse to any security for the Guaranteed Obligations or
this Guarantee unless at the time of a Guarantor's exercise of any
such right there shall have been performed and indefeasibly paid in
full all of the Guaranteed Obligations and no Holder shall have any
commitment under the Note Agreement.
2E. Revival. Each Guarantor agrees that, if any payment made by
the Company or any other Person is applied to the Guaranteed
Obligations and is at any time annulled, set aside, rescinded,
invalidated, declared to be fraudulent or preferential or otherwise
required to be refunded or repaid, or the proceeds of any security are
required to be returned by any Holder to the Company, its estate,
trustee, receiver or any other Person, including, without limitation,
any Guarantor, under any bankruptcy law, state or federal law, common
law or equitable cause, then, to the extent of such payment or
repayment, each Guarantor's liability hereunder (and any lien,
security interest or other collateral securing such liabi1ity) shall
be and remain in full force and effect, as fully as if such payment
had never been made, or, if prior thereto this Guarantee shall have
been canceled or surrendered (and if any lien, security interest or
other collateral securing such Guarantor's liability hereunder shall
have been released or terminated by virtue of such cancellation or
surrender), this Guarantee (and such lien, security interest or other
collateral) shall be reinstated and returned in full force and effect,
and such prior cancellation or surrender shall not diminish, release,
discharge, impair or otherwise affect the obligations of any Guarantor
in respect of the amount of such payment (or any lien, security
interest or other collateral securing such obligation).
2F. Obligation to Keep Informed. Each Guarantor shall be
responsible for keeping itself informed of the financial condition of
the Company and any other Persons primarily or secondarily liable on
the Guaranteed Obligations or any portion thereof, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations or any portion thereof, and each Guarantor agrees that no
Holder shall have a duty to advise such Guarantor of information known
to such Holder regarding such condition or any such circumstance. If
any Holder, in its discretion, undertakes at any time or from time to
time to provide any such information to any Guarantor, such Holder
shall not be under any obligation (i) to undertake any investigation,
whether or not a part of its regular business routine, (ii) to
disclose any information which such Holder wishes to maintain
confidential, or (iii) to make any other or future disclosures of such
information or any other information to such or any other Guarantor.
2G. Bankruptcy. If any Event of Default specified in clauses
(viii), (ix) or (x) of paragraph 7A of the Note Agreement shall occur
and be continuing, any and all obligations of each Guarantor hereunder
shall forthwith automatically become due and payable without notice.
3. REPRESENTATIONS AND WARRANTIES. Each Guarantor represents
and warrants as of the date hereof and as of any date these
representations and warranties are repeated as follows:
3A. Organization, Power and Authority.
3A(1). Organization. Such Guarantor is a corporation duly
organized and existing in good standing under the laws of the State
set forth opposite its name on Schedule 3A(1) and is qualified to do
business and in good standing in every jurisdiction where the
ownership of its property or the nature of the business conducted by
it makes such qualification necessary other than jurisdictions in
which the failure to be so qualified could not be reasonably expected
to have a material adverse effect on such Guarantor.
3A(2). Power and Authority. Such Guarantor and each Subsidiary
of such Guarantor has all requisite power to conduct its business as
currently conducted and as currently proposed to be conducted. Such
Guarantor has all requisite power to execute, deliver and perform its
obligations under this Guarantee. The execution, delivery and
performance by the Guarantor of this Guarantee has been duly
authorized by all requisite action of the Guarantor and this Guarantee
has been duly executed and delivered by Authorized Officers of such
Guarantor and are valid obligations of such Guarantor, legally binding
upon and enforceable against such Guarantor in accordance with their
terms, except as such enforceability may be limited by (i) bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
3B. Conflicting Agreements and Other Matters. Neither the
execution nor delivery of this Guarantee, nor the offering, issuance
and sale of the Notes by the Company, nor fulfillment of nor
compliance with the terms and provisions hereof by such Guarantor or
any of its Subsidiaries will conflict with, or result in a breach of
the terms, conditions or provisions of, or constitute a default under,
or result in any violation of, or result in the creation of any Lien
upon any of the properties or assets of such Guarantor or any of its
Subsidiaries pursuant to, the charter or by-laws of such Guarantor or
any of its Subsidiaries, any award of any arbitrator or any loan
agreement, mortgage, deed of trust, indenture or other material
agreement (including any agreement with stockholders of such Guarantor
or Persons with direct or indirect ownership interests in stockholders
of such Guarantor), instrument, order, judgment, decree, statute, law,
rule or regulation to which such Guarantor or any of its Subsidiaries
is subject. Neither such Guarantor nor any of its Subsidiaries is a
party to, or otherwise subject to any provision contained in, any
instrument evidencing any Debt of such Guarantor or such Subsidiary,
any agreement relating thereto or any other contract or agreement
(including its charter) which limits the amount of, or otherwise
imposes restrictions on the incurring of, obligations of such
Guarantor of the type to be evidenced by this Guarantee except for the
Credit Agreement and as set forth in the agreements listed on Schedule
3B hereto.
3C. Governmental Consent. Neither the nature of such Guarantor
or of any Subsidiary of such Guarantor nor any of their respective
businesses or properties, nor any relationship between such Guarantor
or any Subsidiary of such Guarantor and any other Person, nor any
circumstance in connection with the execution, delivery and
performance of this Guarantee, the offering, issuance, sale or
delivery of the Notes or the use of the proceeds of the Notes is such
as to require any authorization, consent, approval or other action by
or notice to or filing with any court or administrative or
governmental body (including, without limitation, notifications
required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
but excluding routine filings after the date of closing with the
Securities and Exchange Commission and/or state Blue Sky authorities)
in connection with the execution and delivery of this Guarantee, the
offering, issuance, sale or delivery of the Notes or fulfillment of or
compliance with the terms and provisions hereof or of the Notes.
3D. No Default. Each Guarantor covenants and agrees that it
shall perform and observe, and comply with, all of the covenants
applicable to such Guarantor in the Note Agreement and it will not
take any action which would result in a Default or Event of Default
under the Note Agreement.
4. MISCELLANEOUS
4A. Successors, Assigns and Participants. This Guarantee shall
be binding upon each Guarantor and its successors and assigns and
shall inure to the benefit of and be binding upon each Holder and its
successors, transferees and assigns; all references herein to a
Guarantor shall be deemed to include its successors and assigns, and
all references herein to a Holder shall be deemed to include its
successors and assigns. This Guarantee shall be enforceable by the
Holders and any of a Holder's successors, assigns, and any such
successors and assigns shall have the same rights and benefits with
respect to each Guarantor under this Guarantee as the Holder
hereunder.
4B. Consent to Amendments. This Guarantee may be amended, and a
Guarantor may take any action herein prohibited, or omit to perform
any act herein required to be performed by it, if such Guarantor shall
obtain the written consent to such amendment, action or omission to
act of the Required Holder(s), except that, without the written
consent of all of the Holders, (i) no amendment to or waiver of the
provisions of this Guarantee shall change or affect the provisions of
this paragraph 4B insofar as such provisions relate to proportions of
the principal amount of the Notes, or the rights of any individual
Holder, required with respect to any consent, (ii) no Guarantor will
be released from this Guarantee except as otherwise provided in
paragraph 11T of the Note Agreement, and (iii) no amendment, consent
or waiver with respect to paragraph 2A or the definition of
"Guaranteed Obligations" (except to add additional obligations of the
Guarantors) shall be effective. Each Holder at the time or thereafter
outstanding shall be bound by any consent authorized by this paragraph
4B, whether or not the Note held by such Holder shall have been marked
to indicate such consent, but any Notes issued thereafter may bear a
notation referring to any such consent. No course of dealing between
any Guarantor and any Holder nor any delay in exercising any rights
hereunder or under any Note shall operate as a waiver of any rights of
any Holder. As used herein, the term "this Guarantee" and references
thereto shall mean this Guarantee as it may from time to time be
amended or supplemented.
4C. Survival of Representations and Warranties; Entire
Agreement. All representations and warranties contained herein shall
survive the execution and delivery of this Guarantee, the transfer by
the Purchaser of any Note or portion thereof or interest therein and
the payment of any Note, and may be relied upon by any Transferee,
regardless of any investigation made at any time by or on behalf of
the Purchaser or any Transferee. This Guarantee, the Notes and the
Note Agreement embody the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof and
supersede all prior agreements and understandings relating to the
subject matter hereof.
4D. Notices. All written communications provided for hereunder
shall be sent by first c1ass mail or telegraphic notice or nationwide
overnight delivery service (with charges prepaid) or by hand delivery
or telecopy and (i) if to the Purchaser, addressed as specified for
such communications in the Purchaser Schedule attached to the Note
Agreement, or at such other address as the Purchaser shall have
specified to the Guarantors in writing, (ii) if to any other Holder,
addressed to such other Holder at such address as such other Holder
shall have specified to the Guarantors in writing or, if any such
other Holder shall not have so specified an address to the Guarantors,
then addressed to such other Holder in care of the last Holder of such
Note which shall have so specified an address to the Guarantors, and
(iii) if to the Guarantors, addressed to each of them at the
particular address shown for each Guarantor on Schedule 4D attached
hereto, or at such other address as Guarantor shall have specified for
it to the Holders in writing.
4E. Descriptive Headings. The descriptive headings of the
several paragraphs of this Guarantee are inserted for convenience only
and do not constitute a part of this Guarantee.
4F. Satisfaction Requirement. If any agreement, certificate or
other writing, or any action taken or to be taken, is by the terms of
this Guarantee required to be satisfactory to any Holder or to the
Required Holder(s), the determination of such satisfaction shall be
made by the Holder or the Required Holder(s), as the case may be, in
the reasonable commercial judgment (exercised in good faith) of the
Person or Persons making such determination.
4G. Governing Law. THIS GUARANTEE SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE
GOVERNED BY, THE INTERNAL LAW OF THE STATE OF ILLINOIS.
4H. Counterparts. This Guarantee may be executed simultaneously
in two or more counterparts, each of which shall be an original and
constitute one and the same agreement. It shall not be necessary in
making proof of this Guarantee to produce or account for more than one
such counterpart.
4I. Independence of Covenants. All covenants hereunder shall be
given independent effect so that if a particular action or condition
is prohibited by any one of such covenants, the fact that it would be
permitted by an exception to, or otherwise be in compliance within the
limitations of, another covenant shall not avoid the occurrence of a
Default or an Event of Default if such action is taken or such
condition exists.
4J. Binding Guarantee; Termination. When this Guarantee is
executed and delivered by a Guarantor and acknowledged and accepted by
the Purchaser, it shall become a binding agreement by such Guarantor
in favor of the Holders. Subject to paragraph 2E hereof and paragraph
11T of the Note Agreement, each Guarantor's obligations under this
Guarantee shall terminate upon the indefeasible payment and
performance in full of all of the Guaranteed Obligations.
4K. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
4L. Indemnity. Each Guarantor agrees to defend, protect,
indemnify, and hold harmless the Purchaser and each of its affiliates,
officers, directors, employees and agents (collectively, the
"Indemnitees") from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs,
expenses and disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and expenses of
counsel for such Indemnitees in connection with any investigative or
judicial proceeding) imposed on, incurred by or asserted against such
indemnitees in any manner related to or arising from a breach of
Guarantor's obligations under this Guarantee (collectively, the
"Indemnified Matters"); provided, however that no Guarantor shall have
any obligation to an Indemnitee hereunder with respect to Indemnified
Matters arising after the date hereof which are caused by or result
from the gross negligence or willful misconduct of that Indemnitee, as
determined by a final judgment of a court of competent jurisdiction.
To the extent that the undertaking to indemnify and hold harmless set
forth in this paragraph is unenforceable because it is violative of
any law or public policy, each Guarantor shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law,
to the payment and satisfaction of all Indemnified Matters incurred by
the Indemnitees.
4M. Counsel's Opinion. Each Guarantor hereby directs the counsel
referred to in paragraph 3A(iii) of the Note Agreement to deliver the
opinions referred to in such paragraph, and agrees that the original
issuance and sale of any Notes, will constitute a reconfirmation of
such direction.
4N. Additional Guarantors. Upon its execution of a joinder
hereto in the form of Exhibit A attached hereto, delivery of the same
to, and the written acceptance thereof by, the Required Holder(s) any
Subsidiary of the Company which is not a Guarantor hereunder shall
become a Guarantor hereunder for all purposes of this Guarantee with
the same effect and to the same extent as if such corporation were an
original signatory hereto.
IN WITNESS WHEREOF, each Guarantor has caused this Guarantee
to be duly executed as of the date first above written.
MANITOWOC MEC, INC.,
a Nevada corporation
MANITEX, INC.,
a Texas corporation
FEMCO MACHINE COMPANY, INC.,
a Nevada corporation
WEST-MANITOWOC, INC.,
a Wisconsin corporation
NORTH CENTRAL CRANE & EXCAVATOR SALES CORP.,
a Nevada corporation
MANITOWOC RE-MANUFACTURING COMPANY, INC.,
a Wisconsin corporation
KOLPAK MANUFACTURING COMPANY,
a Tennessee corporation
MANITOWOC EQUIPMENT WORKS,INC.,
a Nevada corporation
MANITOWOC MARINE GROUP, INC.,
a Nevada corporation
MANITOWOC ICE, INC.,
a Wisconsin corporation
KMT REFRIGERATION, INC.,
a Wisconsin corporation
MANITOWOC CRANES, INC.,
a Wisconsin corporation
SERVEND INTERNATIONAL, INC.,
a Nevada corporation
By: /s/ Philip D. Keener
----------------------
Treasurer
MANITOWOC CP, INC.,
a Nevada corporation
MANITOWOC CRANE GROUP, INC.,
a Nevada corporation
MANITOWOC FP, INC.,
a Nevada corporation
MANITOWOC-FOODSERVICE
GROUP, INC.,
a Nevada corporation
By: s/ Philip D. Keener
----------------------
Authorized Officer
Acknowledged and agreed to as of this 2nd day of April 1998:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ Scott von Fischer
-------------------------
Senior Vice President
SCHEDULE 3A(1)
(See attached)
SCHEDULE 3B
Restrictions on Incurrence of Indebtedness
None.