1
EXHIBIT 4.3
AMENDMENT NO. 2 TO AND CONSENT AND WAIVER UNDER
CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO AND CONSENT AND WAIVER UNDER CREDIT AGREEMENT
(this "Amendment No. 2") is made the 30th day of June, 2000, by and among JLG
INDUSTRIES, INC., a Pennsylvania corporation ("JLG"), and certain of its
subsidiaries listed on Schedule 1 to the Credit Agreement (as defined below)
(each, together with JLG, individually a "Borrower" and individually and
collectively, the "Borrowers"); the Lenders listed on Schedule 2 to the Credit
Agreement; First Union National Bank, as administrative agent ("Administrative
Agent"); BankOne, Michigan, as syndication agent ("Syndication Agent") and The
Chase Manhattan Bank, as documentation agent ("Documentation Agent").
BACKGROUND
Borrowers, Lenders, Administrative Agent, Syndication Agent and
Documentation Agent entered into a Credit Agreement dated June 18, 1999, as
amended by Amendment No. 1 to Credit Agreement dated December 16, 1999 (as
amended, as so amended hereby and as may be further amended from time to time,
the "Credit Agreement") in order for the Borrowers to, among other things: (i)
acquire 100% of the stock of Gradall Industries, Inc., (ii) refinance certain
existing indebtedness, and (iii) provide for additional working capital.
Borrowers have informed Administrative Agent of their desire to make
borrowings in foreign currencies and to enter into certain sale/leaseback and
securitization of accounts receivable transactions. Borrowers, Lenders,
Administrative Agent, Syndication Agent and Documentation Agent have agreed to
make certain amendments to the Credit Agreement and grant certain consents under
the Credit Agreement, each as set forth herein and subject to the terms and
conditions hereof.
In consideration of the foregoing and the premises and the agreements
hereinafter set forth, and intending to be legally bound hereby, effective as of
the Amendment No. 2 Effective Date, the parties hereto agree as follows:
1. Definitions
1. General Rule. Unless otherwise defined herein, terms used herein
which are defined in the Credit Agreement shall have the respective meanings
assigned to such terms in the Credit Agreement.
2. Additional Definitions. The following definitions are hereby
added to Section 1.1 of the Credit Agreement to read in their entirety as
follows:
1
2
"Alternate Currency" shall have the meaning set forth in
Paragraph 2.9 hereof.
"Alternate Currency Loan" means a Revolving Credit Loan
denominated in an Alternate Currency.
"Alternate Lending Office" means as to each Lender, such
office, branch, affiliate or correspondent of such Lender as such
Lender may from time to time designate by notice to Borrowers and the
Administrative Agent as such Lender's office for making or receiving
payments of Alternate Currency Loans.
"Amendment No. 2" means the Amendment No. 2 to Credit
Agreement by and among Borrowers, Lenders, Administrative Agent,
Syndication Agent and Documentation Agent, dated June 30, 2000.
"Amendment No. 2 Effective Date" means the date on which the
conditions set forth in Paragraph 15 of Amendment No. 2 have been
satisfied.
"Collections" has the meaning set forth on Exhibit E attached
hereto.
"Contractual Currency" shall have the meaning set forth in
Section 2.9(c) hereof.
"Conversion Date" shall have the meaning set forth in Section
2.9(c) hereof.
"Currency Calculation Date" means (a) each date of delivery of
a Notice of Borrowing in accordance with Section 2.3 hereof and (b)
each other date on which the Administrative Agent shall, in its
discretion, calculate the Dollar Equivalent of the Alternate Currency
Loan other than on a Currency Calculation Date as set forth in clause
(a) of this definition.
"Dollar Equivalent" of any amount expressed in an Alternate
Currency means the equivalent amount of Dollars as of the most recent
date on which Administrative Agent in its reasonable judgment
determines to make a foreign exchange calculation, after giving effect
to a conversion of such amount of such Alternate Currency to Dollars at
the buy spot rate quoted for wholesale transactions by Administrative
Agent at approximately 11:00 a.m. Philadelphia time on such Currency
Calculation Date in accordance with its normal practice.
2
3
"Equipment Sale/Leaseback" means a lease arrangement whereby a
Borrower(s) sell certain manufacturing or other equipment to a lessor
and lease back such equipment from the lessor.
"Liquidation Currency" shall have the meaning set forth in
Section 2.9(d) hereof.
"MLA Cost" means, with respect to any Alternate Currency Loan
made by a Lender, the cost imputed to such Lender of compliance with
the Mandatory Liquid Assets requirements of the Bank of England during
the Interest Period applicable to such Alternate Currency Loan,
expressed as a rate per annum and determined in accordance with the
formula set forth on Schedule 3 hereto.
"Purchaser" means a conduit entity that purchases Receivables,
Related Security and Related Assets from a Borrower, Borrowers or a
Securitization Subsidiary in connection with a Securitization.
"Receivable" has the meaning set forth on Exhibit B attached
hereto.
"Received Currency" shall have the meaning set forth in
Section 2.9(c) hereof.
"Redenominate" means the conversion of each Alternate Currency
Loan from one Alternate Currency into Dollars.
"Related Assets" has the meaning set forth on Exhibit D
attached hereto.
"Related Security" has the meaning set forth on Exhibit C
attached hereto.
"Rental Fleet Sale/Leaseback" means a lease arrangement
whereby Borrower(s) sell a pool of rental equipment to a lessor and
lease back such equipment from the lessor.
"Securitization" means a financing arrangement, a component of
which is a liquidity facility under which no Borrower is a borrower or
guarantor, whereby a Borrower or Borrowers sell portions of its/their
accounts receivable to a Securitization Subsidiary, in each case
without recourse, but subject to certain representations, warranties,
covenants and indemnity obligations, which will in turn sell such
receivables to a Purchaser, in each case without recourse, but subject
to certain representations, warranties, covenants and indemnity
obligations.
3
4
"Securitization Subsidiary" means a bankruptcy-remote direct
Subsidiary of JLG formed in connection with a Securitization.
3. Amended Definitions.
1. The definition of "Debt" found in Section 1.1 of the Credit
Agreement is hereby amended so that the word "and" prior to subsection (h) is
deleted, and the following subsection (i) is inserted prior to the period at the
end of such definition:
", and (i) any amount paid by a Purchaser to a Securitization
Subsidiary in connection with a Securitization"
2. The following definition found in Section 1.1 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"LIBOR" means the rate of interest per annum determined on the
basis of the rate for deposits in Dollars or applicable Alternate
Currency deposits, as the case may be, in minimum amounts of at least
$5,000,000 for a period equal to the applicable Interest Period which
appears for Dollar deposits on the Dow Jones Markets page 3750 at
approximately 11:00 a.m. (London time), and for Alternate Currency
deposits on Dow Jones Markets page 3750 at approximately 11:00 a.m.
(London time), two (2) Business Days prior to the first day of the
applicable Interest Period (rounded upward, if necessary, to the
nearest one-hundredth of one percent (1/100%)). If, for any reason,
such rate does not appear on Dow Jones Markets page 3750, then LIBOR
shall be determined by the Administrative Agent to be the arithmetic
average (rounded upward, if necessary, to the nearest one-hundredth of
one percent (1/100%)) of the rate per annum at which deposits in
Dollars would be offered by first class banks in the London interbank
market to the Administrative Agent at approximately 11:00 a.m. (London
time) two (2) Business Days prior to the first day of the applicable
Interest Period for a period equal to such Interest Period and in an
amount substantially equal to the amount of the applicable Loan.
3. The definition of "LIBOR Rate" found in Section 1.1 of the
Credit Agreement is hereby amended so that the following phrase is added
immediately before the colon at the end of the second line of such definition:
4
5
", and as may be further adjusted for MLA Costs"
2. New Schedule 3. Schedule 3 entitled "Calculation of MLA Costs" is
hereby added to the Credit Agreement as set forth in its entirety as Exhibit A
hereto.
3. New Section 2.9 (Alternate Currency Options). The following new
Section 2.9 is hereby added to the Credit Agreement to read in its entirety as
follows:
2.9 Alternate Currency Options
a. (i) All Revolving Credit Loans shall be made in Dollars or,
at Borrowers' request, in any other freely convertible, transferable
foreign currency available to all Lenders (each an "Alternate
Currency"); provided, however, that the aggregate outstanding amount of
the Revolving Credit Loans made in Alternate Currencies shall not
exceed at any time the Dollar Equivalent of One Hundred Million Dollars
($100,000,000). Each Lender's Commitment Percentage of each Alternate
Currency Loan shall be determined by reference to its Dollar Equivalent
on the date each such Alternate Currency Loan is made. As to any
Alternate Currency Loan, each Lender may elect to fulfill its
commitment to make such Alternate Currency Loan by causing an Alternate
Lending Office to make such Alternate Currency Loan; provided, however,
that no such election shall be made if as a result thereof any Borrower
would be required to pay United States withholding taxes or any
additional amounts.
(ii) Each Alternate Currency Loan shall be a LIBOR Rate
Loan; provided, however, that JLG, on behalf of the Borrowers, shall
give a Notice of Borrowing to the Administrative Agent under Section
2.3(a)(ii) on the fourth (4th) Business Day before each Alternate
Currency Loan.
b. If, after the date of this Agreement, any enactment,
promulgation or adoption of or any change in any applicable law, rule
or regulation, or any change in the interpretation or administration
thereof by a governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or
compliance by Lenders with any guideline, request or directive (whether
or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for Lenders to
make or maintain or fund Loans in the applicable Alternate Currency,
Administrative Agent shall notify Borrowers. Upon
5
6
receipt of such notice, the applicable Alternate Currency Loan shall be
repaid and/or converted to an available Alternate Currency or Dollars
on either: (i) the last day of the then current Interest Period for the
affected Alternate Currency Loan, if Lenders may lawfully continue to
maintain a Loan at such Alternate Currency to such day, or (ii)
immediately, if Lenders may not lawfully continue to so maintain such
Alternate Currency Loan.
c. All payments hereunder shall be made in Dollars or an
Alternate Currency, as the case may be, based on the currency in which
a Loan is made. Such requirement is of the essence hereof. If payment
is not made in the currency due under this Agreement (the "Contractual
Currency") or if any court or tribunal shall render a judgment or order
for the payment of amounts due hereunder or under the Notes and such
judgment is expressed in a currency other than the Contractual
Currency, the Borrowers shall indemnify and hold the Lenders harmless
against any deficiency incurred by the Lenders with respect to the
amount received by the Lenders to the extent the rate of exchange at
which the Contractual Currency is convertible into the currency
actually received or the currency in which the judgment is expressed
(the "Received Currency") is not the reciprocal of the rate of exchange
at which Administrative Agent would be able to purchase the Contractual
Currency with the Received Currency, in each case on the Business Day
following receipt of the Received Currency in accordance with normal
banking procedures. If the court or tribunal has fixed the date on
which the rate of exchange is determined for the conversion of the
judgment currency into the Contractual Currency (the "Conversion Date")
and if there is a change in the rate of exchange prevailing between the
Conversion Date and the date of receipt by the Lenders, then the
Borrowers will, notwithstanding such judgment or order, pay such
additional amount (if any) as may be necessary to ensure that the
amount paid in the Received Currency when converted at the rate of
exchange prevailing on the date of receipt will produce the amount then
due to the Lenders from the Borrowers hereunder in the Contractual
Currency.
d. If any Borrower shall wind up, liquidate, dissolve or
become a debtor in bankruptcy while there remains outstanding: (i) any
amounts owing to the Lenders hereunder or under the Notes, (ii) any
damages owing to the Lenders in respect of a breach of any of
6
7
the terms hereof, or (iii) any judgment or order rendered in respect of
such amounts or damages, the Borrowers shall indemnify and hold the
Lenders harmless against any deficiency with respect to the Contractual
Currency in the amounts received by the Lenders arising or resulting
from any variation as between: (i) the rate of exchange at which the
Contractual Currency is converted into another currency (the
"Liquidation Currency") for purposes of such winding-up, liquidation,
dissolution or bankruptcy with regard to the amount in the Contractual
Currency due or contingently due hereunder or under the Notes or under
any judgment or order to which the relevant obligations hereunder or
under the Notes shall have been merged and (ii) the rate of exchange at
which Administrative Agent could, in accordance with normal banking
procedures, be able to purchase the Contractual Currency with the
Liquidation Currency at the earlier of (A) the date of payment of such
amounts or damages and (B) the final date or dates for the filing of
proofs of a claim in a winding-up, liquidation, dissolution or
bankruptcy. As used in the preceding sentence, the "final date" or
dates for the filing of proofs of a claim in a winding-up, liquidation,
dissolution or bankruptcy shall be the date fixed by the liquidator
under the applicable law as being the last practicable date as of which
the liabilities of the applicable Borrower may be ascertained for such
winding-up, liquidation, dissolution or bankruptcy before payment by
the liquidator or other appropriate person in respect thereof.
e. The Borrowers agree to indemnify the Lenders against any
loss or expense which the Lenders may sustain or incur in liquidating
or employing deposits from third parties acquired to effect, fund or
maintain any Alternate Currency Loan or any part thereof as a
consequence of (i) the Borrowers' failure to make a payment on other
than the due date of such Alternate Currency Loan, or (ii) the
Borrowers' failure to borrow under, convert to or renew under the
applicable Alternate Currency on a binding effective date of such
borrowing, conversion or renewal. Administrative Agent's determination
of an amount payable under this paragraph (e) shall, in the absence of
error, be conclusive and shall be payable on demand.
f. Administrative Agent may from time to time in its
discretion calculate the Dollar Equivalent of
7
8
an Alternate Currency Loan. In the event that the aggregate Dollar
Equivalent of the outstanding principal amount of the Alternate
Currency Loans at any time exceeds One Hundred Million Dollars
($100,000,000), the Administrative Agent shall promptly give notice of
such fact to Borrowers and Lenders, and Borrowers shall be required to
make a payment to Administrative Agent to reduce the outstanding
principal amount of the outstanding Alternate Currency Loans so that
the Dollar Equivalent thereof equals not more than One Hundred Million
Dollars ($100,000,000). Such payment shall be made within three (3)
Business Days following the date of receipt of such notice given by
Administrative Agent.
4. New Section 2.10 (European Economic and Monetary Union). A new
Section 2.10 is hereby added to the Credit Agreement to read in its entirety as
follows:
2.10. European Economic and Monetary Union.
(a) Definitions. In this Section 2.10 and in each other
provision of this Agreement to which reference is made to this Section
expressly or implicitly, the following terms have the meanings given to
them in this Section 2.10:
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union;
"EMU Legislation" means legislative measures of the European
Council for the introduction of change over to or operation of a single
or unified European currency, as amended from time to time;
"euro" means the single currency to which participating member
states are converting;
"euro unit" means the currency unit of the euro;
"national currency unit" means the unit of currency (other
than a euro unit) of a participating member state;
"participating member state" means each state so described in
any EMU Legislation; and
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single European Act 1986 and the Maastricht
Treaty (which was signed at Maastricht on February 7, 1992, and came
8
9
into force on November 1, 1993), as amended from time to time.
(b) Effectiveness of Provisions. The provisions of subsections
(c) to (k) below (inclusive) shall be effective upon the execution of
this Agreement, provided, that if and to the extent that any such
provision relates to any state (or the currency of such state) that is
not a participating member state upon the execution of this Agreement,
such provision shall become effective in relation to such state (and
the currency of such state) at and from the date on which such state
becomes a participating member state.
(c) Redenomination and Alternate Currencies. Each obligation
of any party under this Agreement which has been denominated in the
national currency unit of a non-member state which becomes a
participating member state after the date of any Alternate Currency
Loan made in the national currency unit of such state shall be
Redenominated into the euro unit at the exchange rate set in accordance
with EMU Legislation, provided, that if and to the extent that any EMU
Legislation provides that an amount denominated either in the euro or
in the national currency unit of a participating member state and
payable within that participating member state by crediting an account
of a creditor can be paid by a debtor either in the euro unit or in the
national currency unit, each party to this Agreement shall be entitled
to pay or repay any such amount either in the euro unit or in such
national currency unit; provided, however, any amount paid in a
national currency unit shall be paid at the fixed exchange rate in
order to yield the required amount in euros.
(d) Loans. Any Loan in the currency of a participating member
state shall be made in the euro unit, provided that any loan may, if so
requested by Borrowers, be made in the national currency unit (based
upon fixed exchange rate) of any participating member state so long as
such national currency unit continues to be available as legal tender,
is freely convertible and is not subject to exchange controls.
(e) Business Days. With respect to any amount denominated or
to be denominated in the euro or a national currency unit, any
reference to a "Business Day" shall be construed as a reference to a
day (other than a Saturday or Sunday) on which banks are
9
10
generally open for business in New York City and prime banks in London
generally provide quotations for deposits denominated in the euro and
such national currency unit.
(f) Payment to the Lenders. Sections of this Agreement which
provide for payment or repayment in a national currency unit shall be
construed so that, in relation to the payment of any amount of euro
units or national currency units, such amount shall be made available
to the Lenders, in immediately available, freely transferable, cleared
funds to such account with each bank (in such principal financial
center) as each Lender may from time to time nominate for this purpose
in accordance with this Agreement.
(g) Payments by the Lenders Generally. With respect to the
payment of any amount denominated in the euro or in a national currency
unit, the Lenders shall not be liable to the Borrowers in any way
whatsoever for any delay, or the consequences of any delay, in the
crediting to any account of any amount required by this Agreement to be
paid by a Lender if such Lender has made reasonable efforts to effect
all relevant steps to achieve, on the date required by this Agreement,
the payment of such amount in immediately available, freely
transferable, cleared funds (in the euro unit or, as the case may be,
in a national currency unit) to the account with the bank in the
principal financial center in the participating member state which the
Borrowers shall have specified for such purpose. In this paragraph,
"all relevant steps" means all such steps as may be prescribed from
time to time by the regulations or operating procedures of such
clearing or settlement system as such Lender may from time to time
select for the purpose of clearing or settling payment of the euro.
(h) Basis of Accrual. If the basis of accrual of interest or
fees expressed in this Agreement with respect to the currency of any
state that becomes a participating member state shall, in a Lender's
reasonable judgment, be inconsistent with any convention or practice in
the London Interbank Market for the basis of accrual of interest or
fees in respect of the euro, or if interest rate quotes for a national
currency are no longer provided, such convention or practice shall
replace such expressed basis effective as of and from the date on which
such state becomes a participating member state; provided, that if any
Alternate Currency Loan in the currency of
10
11
such state is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such Loan, at the end of
the then current Interest Period.
(i) Rounding and Other Consequential Changes. Without
prejudice and in addition to any method of conversion or rounding
prescribed by any EMU Legislation and without prejudice to the
respective liabilities for indebtedness of the Borrowers to the Lenders
and of the Lenders to the Borrowers under or pursuant to this
Agreement,
(i) each reference in this Agreement to a minimum amount
(or an integral multiple thereof) in a national currency unit to be
paid to or by a Lender shall be replaced by a reference to such
reasonably comparable and convenient amount (or an integral multiple
thereof) in the euro unit as such Lender may from time to time
specify; and
(ii) except as expressly provided in this Agreement,
each provision of this Agreement, including, without limitation, the
right to combine currencies to effect a setoff, shall be subject to
such reasonable changes of interpretation as Lenders may from time
to time specify to be necessary or appropriate to reflect the
introduction of or changeover to the euro in participating member
states.
(j) Exchange Indemnification and Increased Costs. The
Borrowers shall from time to time, upon demand from the Lenders, pay to
the Lenders the amount of any loss or cost or increased cost incurred
by, or of any reduction in any amount payable to or in the effective
return of its capital to, or of interest or other return, including
principal foregone by any Lender or its holding company as a result of
the introduction of, changeover to or operation of the euro in any
participating member state or Borrowers' election to borrow in a
national currency and repay in the euro or to borrow in the euro and
repay in a national currency other than any such cost or reduction or
amount foregone reflected in the associated interest rate.
11
12
(k) Further Assurances. Borrowers agree, at the request of the
Administrative Agent or a Lender, at the time of or at any time
following the implementation of any EMU Legislation, to enter into an
agreement amending this Agreement in order to reflect the
implementation of the EMU Legislation and to place the parties hereto
in the position they would have been in had such EMU Legislation not
been implemented.
5. Amended Section 4.1(d) (Interest). Section 4.1(d) of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
(d) Default Rate. Subject to Section 11.3, at the discretion
of the Administrative Agent and Required Lenders, upon the occurrence
and during the continuance of an Event of Default: (i) the Borrowers
shall no longer have the option to request LIBOR Rate Loans, (ii) all
outstanding LIBOR Rate Loans (including without limitation all
Alternate Currency Loans) shall bear interest at a rate per annum two
percent (2%) in excess of the rate then applicable to LIBOR Rate Loans,
as applicable, until the end of the applicable Interest Period, and
thereafter at a rate equal to two percent (2%) in excess of the rate
then applicable to Base Rate Loans, (iii) all outstanding Base Rate
Loans shall bear interest at a rate per annum equal to two percent (2%)
in excess of the rate then applicable to Base Rate Loans. Interest
shall continue to accrue on the Notes after the filing by or against
the Borrowers of any petition seeking any relief in bankruptcy or under
any act or law pertaining to insolvency or debtor relief, whether
state, federal or foreign, and (iv) on the last day of the applicable
Interest Period, all outstanding Alternate Currency Loans shall be
Redenominated into Dollars.
6. Amended Section 4.4 (Manner of Payment). Section 4.4 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
Section 4.4. Manner of Payment.
(a) Except for Alternate Currency Loans, each payment by the
Borrowers on account of the principal of or interest on the Loans or of
any fee, commission or other amounts (including the Reimbursement
Obligation) payable to the Lenders under this Agreement or any Note
shall be made not later than 1:00 p.m. (Philadelphia time) on the date
12
13
specified for payment under this Agreement to the Administrative Agent
at the Administrative Agent's Office for the account of the Lenders
(other than as set forth below) pro rata in accordance with their
respective Commitment Percentages (except as specified below), in
Dollars, in immediately available funds and shall be made without any
set-off, counterclaim or deduction whatsoever.
(b) Alternate Currency Loans shall be paid at the
Administrative Agent's Alternate Lending Office no later than 11:00
a.m. (London time) and otherwise as set forth above.
(c) Any payment received on such date after the time set for
payment, as applicable, shall be deemed to have been made on the next
succeeding Business Day. Upon receipt by the Administrative Agent of
each such payment, the Administrative Agent shall distribute to each
Lender at its address for notices set forth herein its pro rata share
of such payment in accordance with such Lender's Commitment Percentage
(except as specified below) and shall wire advice of the amount of such
credit to each Lender. Each payment to the Administrative Agent of the
Issuing Lender's fees, Lenders' facility fee or L/C Participants'
commissions shall be made in like manner, but for the account of the
Issuing Lender or the L/C Participants, as the case may be. Each
payment to the Administrative Agent of Administrative Agent's fees or
expenses shall be made for the account of the Administrative Agent and
any amount payable to any Lender under Sections 4.8, 4.9, 4.10, 4.11 or
13.2 shall be paid to the Administrative Agent for the account of the
applicable Lender. Subject to Section 4.1(b)(ii) if any payment under
this Agreement or any Note shall be specified to be made upon a day
which is not a Business Day, it shall be made on the next succeeding
day which is a Business Day and such extension of time shall in such
case be included in computing any interest if payable along with such
payment.
7. Amended Section 10.1(e) (Limitations on Debt). Section 10.1(e) of
the Credit Agreement is hereby amended so that the reference to "Five Million
Dollars ($5,000,000)" is replaced by "Ten Million Dollars ($10,000,000)".
8. Amended Section 10.3(f) (Limitations on Liens). Section 10.3(f) of
the Credit Agreement is hereby amended and restated in its entirety as set forth
below:
13
14
(f) Liens securing Debt permitted under Section 10.1(h);
provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of the related asset, (ii) such
Liens do not at any time encumber any property other than the property
financed by such Debt, (iii) the amount of Debt secured thereby is not
increased, and (iv) the principal amount of Debt secured by any such
Lien shall at no time exceed one hundred percent (100%) of the original
purchase price of such property at the time it was acquired.
9. Amended Section 10.6(d) (Limitations on Sales of Assets). Section
10.6(d) of the Credit Agreement is hereby amended and restated in its entirety
as set forth below:
(d) either: (i) the sale or discount without recourse of
accounts receivable which arose in the ordinary course of business or
(ii) the sale of Receivables, Related Security and Related Assets in
connection with Securitizations, in each case as defined in and to the
extent permitted by any consent or waiver by the Required Lenders
relating thereto; provided, however, that the aggregate face amount of
outstanding accounts receivable sold or discounted under clause (i)
above, plus Debt outstanding in connection with Securitizations
permitted under clause (ii) above, shall not exceed in the aggregate at
any time One Hundred Million Dollars ($100,000,000); provided further,
however, that for purposes of clause (i) above (but not clause (ii)),
"outstanding" means those sold or discounted accounts receivable which
are by their terms not due;
10. Additional Section 11.1(q) (Sale/Leaseback or Securitization
Cross-Default). The following new Section 11.1(q) is hereby added to the Credit
Agreement to read in its entirety as follows:
(q) Sale/Leaseback or Securitization Cross-Default. Any
Borrower or any Subsidiary shall (i) default in the payment of any Debt
in connection with an Equipment Sale/Leaseback, Rental Fleet
Sale/Leaseback or Securitization transaction beyond the period of grace
if any, provided in the instrument or agreement under which such Debt
was created or (ii) default in the observance or performance of any
other agreement or condition relating to any Debt in connection with an
Equipment Sale/Leaseback, Rental Fleet Sale/Leaseback or Securitization
transaction or contained in any instrument or agreement evidencing,
securing or relating thereto or any other event shall
14
15
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Debt
(or a trustee or agent on behalf of such holder or holders) to cause,
with the giving of notice if required, any such Debt to become due
prior to its stated maturity (any applicable grace period having
expired).
11. Consents and Waivers in connection with Sale/Leaseback
Transactions. Borrowers have entered into and/or have informed Administrative
Agent of their intent to enter into two types of sale/leaseback transactions.
The first type is a lease arrangement whereby the Borrowers sell certain
manufacturing and other equipment of the Borrowers to a lessor and lease back
such equipment (an "Equipment Sale/Leaseback); the second type is a lease
arrangement where the Borrowers will sell a pool of rental equipment to a lessor
and lease back such equipment (a "Rental Fleet Sale/Leaseback"). The following
consents and waivers are intended to permit Equipment Sale/Leaseback and Rental
Fleet Sale/Leaseback transactions as and to the extent, and subject to the
conditions, set forth below:
1. Section 10.1 (Limitations on Debt). Section 10.1 of the Credit
Agreement prohibits the Borrowers from incurring additional Debt except to the
extent set forth in the exceptions described therein. Equipment Sale/Leaseback
and Rental Fleet Sale/Leaseback transactions violate or may violate Section 10.1
of the Credit Agreement. Lenders hereby consent to the Borrowers' incurrence of
Debt in connection with Equipment Sale/Leaseback and Rental Fleet Sale/Leaseback
transactions; provided, however, that: (i) in connection with an Equipment
Sale/Leaseback, the transaction is limited to the equipment placed in service
not more than six months prior to the effective date of such Equipment
Sale/Leaseback; (ii) the amount of Debt outstanding in connection with Equipment
Sale/Leaseback transactions (including without limitation the January 28, 2000
transaction between JLG and SunTrust Leasing Corporation for the sale and
leaseback of the Torrid Powder Finishing System located at JLG's paint facility
at Shippensburg, Pennsylvania) shall be applied to reduce the 20% of Net Worth
basket set forth in Section 10.1(h) of the Credit Agreement; and (iii) the
amount of Debt outstanding in connection with Rental Fleet Sale/Leaseback
transactions, either singly or in the aggregate, shall not exceed 15% of Net
Worth of JLG and its Subsidiaries on a consolidated basis (as set forth on the
most recently delivered financial statements by Borrowers to the Lenders), and
such amount of Debt : (A) shall be equivalent to the sale price to the lessor of
such equipment sold, less any lease amortization, in accordance with GAAP and
(B) shall not be applied to reduce the 20% of Net Worth basket set forth in
Section 10.1(h) of the Credit Agreement.
2. Section 10.3 (Limitations on Liens). Section 10.3 of the Credit
Agreement prohibits Borrowers from incurring Liens on any of their assets except
to the extent set forth in the exceptions described therein. Equipment
Sale/Leaseback and Rental Fleet Sale/Leaseback transactions violate or may
violate Section 10.3 of the Credit Agreement because the lessor would have an
effective lien on :(i) the Borrowers' assets transferred to the lessor as part
of the Equipment Sale/Leaseback or Rental Fleet Sale/Leaseback transaction, and
(ii) in connection with a Rental Fleet Sale/Leaseback transaction, the lessor
would also have a lien on
15
16
the Borrowers' accounts, proceeds of accounts, lease agreements and lease
payments related to such assets (collectively, the "Transferred Assets").
Lenders hereby consent to Borrowers' incurrence of Liens on their Transferred
Assets in connection with either Equipment Sale/Leaseback or Rental Fleet
Sale/Leaseback transactions.
3. Section 10.6 (Limitations on Sale of Assets). Section 10.6 of the
Credit Agreement prohibits Borrowers and their Subsidiaries from conveying,
selling, leasing, transferring or otherwise disposing of any of their property
business or assets except to the extent set forth in the exceptions described
therein, and therefore prohibits Borrowers from transferring ownership of their
assets to a lessor under either an Equipment Sale/Leaseback or the Rental Fleet
Sale/Leaseback. Lenders hereby consent to Borrowers' sale of Transferred Assets
to a lessor in connection with Equipment Sale/Leaseback and Rental Fleet
Sale/Leaseback transactions otherwise permitted herein.
4. Section 10.11 (Restrictive Agreements). Section 10.11 of the
Credit Agreement prohibits the Borrowers and their Subsidiaries from entering
into any agreement evidencing indebtedness which contains any negative pledge on
assets or covenants more restrictive than those in the Credit Agreement. The
Borrowers' execution of the documentation in connection with Equipment
Sale/Leaseback or Rental Fleet Sale/Leaseback transactions may, due to the
inclusion of a negative pledge relating to the Transferred Assets, subject to
the applicable transaction, violate Section 10.11 of the Credit Agreement.
Lenders hereby consent to any Borrower's grant of a negative pledge on
Transferred Assets to a lessor in connection with Equipment Sale/Leaseback or
Rental Fleet Sale/Leaseback transactions.
12. Consents and Waivers in connection with Securitization
Transactions. Borrowers have informed Administrative Agent of their desire to
enter into Securitization transactions. In each Securitization, one or more of
the Borrowers will sell portions of its/their Receivables, Related Security and
Related Assets to Securitization Subsidiaries, which will in turn sell such
receivables to a Purchaser. A liquidity facility, under which no Borrower is a
borrower or guarantor, will be a component of each such Securitization. JLG will
provide Administrative Agent with: (i) one week's prior written notice of any
Securitization and (ii) within one week after the closing of any Securitization,
an opinion of counsel to Borrowers stating that such transaction has closed and
that the documentation for such Securitization does not breach the terms of the
Credit Agreement. The transaction evidenced by: (i) the Purchase and Sale
Agreement dated as of June 30, 2000 between JLG, The Gradall Company, The
Gradall Orville Company and a Securitization Subsidiary, (ii) the Receivables
Purchase Agreement dated as of June 30, 2000 among a Securitization Subsidiary,
as the Seller, JLG, as the Servicer, Market Street Funding Corporation, as the
Issuer and PNC Bank, National Association, as the Administrator and (iii) the
liquidity facility in connection therewith (collectively, the "PNC
Securitization"), which documents (other than the liquidity facility, as to
which Borrowers represent and warrant herein that they are not a party) have
been reviewed by counsel to Administrative Agent, constitutes a Securitization
hereunder. The following consents and
16
17
waivers are intended to permit the PNC Securitization referred to above and
subsequent Securitizations as and to the extent, and subject to the conditions,
set forth below:
1. Securitization Subsidiary. Section 8.12 of the Credit Agreement
(Additional Subsidiaries) requires that any new Subsidiary of a Borrower must,
inter alia, be joined as a Borrower under the Credit Agreement. Lenders hereby
waive the requirement that a Securitization Subsidiary join the Credit Agreement
as a Borrower. In addition, Lenders hereby waive a Securitization Subsidiary's
compliance with the negative covenants found in Article 10 of the Credit
Agreement, other than in Section 10.1 of the Credit Agreement.
2. Section 10.1 (Limitations on Debt). Section 10.1 of the Credit
Agreement prohibits Borrowers from incurring additional Debt except to the
extent set forth in the exceptions described therein. A Securitization may
contravene Section 10.1 of the Credit Agreement, because in connection with the
sale of Receivables, Related Security and Related Assets to a Purchaser, a
Securitization Subsidiary may incur Debt to a Purchaser for payments of the
accounts receivable from such accounts. Lenders hereby consent to Debt not
exceeding One Hundred Million Dollars ($100,000,000) outstanding at any time
related to: (i) Securitizations and (ii) other sales or discounts without
recourse of accounts receivable permitted by Section 10.6(d) of the Credit
Agreement, either singly or in the aggregate (provided, however, that with
respect to sales or discounts without recourse of accounts receivable referenced
in clause (ii) above, "outstanding" means those sold or discounted accounts
receivable which are by their terms not due).
3. Section 10.3 (Limitations on Liens). Section 10.3 of the Credit
Agreement prohibits Borrowers from incurring Liens on any of their assets except
to the extent set forth in the exceptions described therein. A Securitization
may contravene Section 10.3 of the Credit Agreement because in connection with
the sale of the Receivables, Related Security and Related Assets, a Purchaser
will file UCC-1 financing statements against the Borrower that sells such
Receivables, Related Security and Related Assets. Lenders hereby consent to
Purchasers filing UCC-1 financing statements against Borrowers in connection
with a Securitization, so long as such UCC-1s cover only those Receivables,
Related Security and Related Assets sold to a Purchaser in connection with such
Securitization.
4. Section 10.6 (Limitations on Sale of Assets). Section 10.6 of the
Credit Agreement prohibits Borrowers and their Subsidiaries from conveying,
selling, leasing, transferring or otherwise disposing of any of their property
business or assets except to the extent set forth in the exceptions described
therein, and therefore prohibits Borrowers from selling their accounts
receivable to a Securitization Subsidiary in connection with a Securitization.
Lenders hereby consent to Borrowers' sale of its/their Receivables, Related
Security and Related Assets to a Securitization Subsidiary in connection with a
Securitization.
5. Section 10.11 (Restrictive Agreements). Section 10.11 prohibits
the Borrowers and their Subsidiaries from entering into any agreement evidencing
indebtedness
17
18
which contains any negative pledge on assets or covenants more restrictive than
those in the Credit Agreement. The Borrowers' execution of the documentation in
connection with a Securitization may, due to the inclusion of a negative pledge
relating to the Receivables, Related Security, Related Assets and Collections,
subject to the applicable transaction, violate Section 10.11 of the Credit
Agreement. Lenders hereby consent to Borrowers' grant of a negative pledge to a
Purchaser on the Receivables, Related Security, Related Assets and Collections
sold to such Purchaser in connection with a Securitization.
13. Representations and Warranties. Borrowers hereby represent and
warrant to Lenders as follows:
1. Representations. The representations and warranties set forth in
Article VI of the Credit Agreement are true and correct in all material respects
as of the Amendment No. 2 Effective Date, except for any representation or
warranty made as of an earlier date, which representation and warranty shall
remain true and correct as of such earlier date; there is no Event of Default or
Default under the Credit Agreement, as amended hereby; and since July 31, 1999
there has been no material adverse change in the properties, business,
operations, prospects or condition (financial or otherwise) of JLG or its
Subsidiaries on a Consolidated basis that could reasonably be expected to have a
Material Adverse Effect.
2. Power and Authority. Each Borrower has the power and authority
under the laws of its state of incorporation or formation and under its
respective articles or certificates of incorporation and bylaws or articles of
organization and operating agreement to enter into and perform this Amendment
No. 2 and the other documents and agreements required hereunder (collectively,
the "Amendment Documents"); all necessary actions (corporate or otherwise) for
the execution and performance by each Borrower of the Amendment Documents have
been taken; and each of the Amendment Documents and the Credit Agreement, as
amended, constitute the valid and binding obligations of Borrowers, enforceable
in accordance with its respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar state
or federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of equitable
remedies.
3. No Violations of Law or Agreements. The execution and performance
of the Amendment Documents by Borrowers will not: (i) violate any provisions of
any law or regulation, federal, state or local, or the articles or certificates
of incorporation or bylaws or articles of organization or operating agreement of
any Borrower or (ii) result in any breach or violation of, or constitute a
default or require the obtaining of any consent under, any material agreement or
instrument by which any Borrower or its property may be bound.
4. Liquidity Facility. No Borrower is a borrower under or a
guarantor for the liquidity facility to be established in connection with the
PNC Securitization transaction described in Paragraph 12 above.
18
19
14. Amendment Fee. Borrowers hereby covenant and agree to pay to each
Lender who has executed this Amendment No. 2 a fee of five basis points on such
Lender's Commitment Percentage under the Credit Agreement.
15. Conditions to Effectiveness of Amendment. This Amendment No. 2
shall be effective upon the date of Administrative Agent's receipt of the
following documents, each in form and substance reasonably satisfactory to
Administrative Agent:
1. Amendment No. 2. This Amendment No. 2 duly executed by Borrowers,
Required Lenders and Administrative Agent; provided, however, that Paragraphs 2,
3, 4, 5, 6 and the other provisions hereof relating to Alternate Currency Loans
shall be effective only upon execution of this Amendment No. 2 by Borrowers, all
Lenders and Administrative Agent.
2. Working Capital Facility. An amendment to the documentation of
the Working Capital Facility, in form and substance acceptable to Administrative
Agent.
3. Overdraft Facility. An amendment to the documentation evidencing
the Overdraft Facility, in form and substance acceptable to Administrative
Agent.
4. Amendment Fee. Payment to Administrative Agent, for the benefit
of each Lender, of the fees set forth in Paragraph 14 hereof.
5. Opinion of Counsel. An opinion of counsel to Borrowers, in form
and substance satisfactory to Administrative Agent.
6. Good Standing Certificates. A good standing certificate from the
secretary of state of the state of formation of each Borrower as of a recent
date.
7. Secretary Certificate. A certificate of the secretary of each
Borrower certifying that the resolutions authorizing such Borrower's execution
of this Amendment No. 2 are in full force and effect.
8. Other Documents. Such additional documents as Lenders may
reasonably request.
16. Affirmations. Borrowers hereby: (i) affirm all the provisions of
the Credit Agreement, as amended by this Amendment No. 2, and (ii) agree that
the terms and conditions of the Credit Agreement shall continue in full force
and effect as supplemented and amended hereby.
17. Miscellaneous.
19
20
1. Borrowers agree to pay or reimburse Administrative Agent for all
reasonable fees and expenses (including without limitation reasonable fees and
expenses of counsel) incurred by Administrative Agent in connection with the
preparation, execution and delivery of this Amendment No. 2.
2. This Amendment No. 2 shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to
conflicts of law or choice of law principles.
3. This Amendment No. 2 may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
20
21
4. Except as expressly set forth herein, the execution, delivery and
performance of this Amendment No. 2 shall not operate as a waiver of any right,
power or remedy of Administrative Agent or Lenders under the Credit Agreement
and the agreements and documents executed in connection therewith or constitute
a waiver of any provision thereof.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2
the day and year first above written.
Attest: JLG INDUSTRIES, INC.
- ------
By: _____________________________ By: _____________________________
Name: Thomas D. Singer Name: Charles H. Diller, Jr.
Title: Assistant Secretary Title: Executive Vice President
and Chief Financial Officer
Attest: FULTON INTERNATIONAL, INC.
- ------
By: _____________________________ By: _____________________________
Name: Thomas D. Singer Name: Charles H. Diller, Jr.
Title: Secretary Title: President
Attest: JLG EQUIPMENT SERVICES, INC.
- ------
By: _____________________________ By: _____________________________
Name: Thomas D. Singer Name: Charles H. Diller, Jr.
Title: Assistant Secretary Title: Secretary and Treasurer
Attest: JLG MANUFACTURING, LLC
- ------
By: JLG INDUSTRIES, INC., Authorized Member
By: _____________________________ By: _____________________________
Name: Thomas D. Singer Name: Charles H. Diller, Jr.
Title: Assistant Secretary Title: Executive Vice President
and Chief Financial Officer
21
22
[EXECUTIONS CONTINUED]
Attest: GRADALL INDUSTRIES, INC.
- ------
By: _____________________________ By: _____________________________
Name: Thomas D. Singer Name: Charles H. Diller, Jr.
Title: Assistant Secretary Title: Vice President
Attest: THE GRADALL COMPANY
- ------
By: _____________________________ By: _____________________________
Name: Thomas D. Singer Name: Charles H. Diller, Jr.
Title: Assistant Secretary Title: Vice President
Attest: THE GRADALL ORRVILLE COMPANY
- -------
By: _____________________________ By: _____________________________
Name: Thomas D. Singer Name: Charles H. Diller, Jr.
Title: Assistant Secretary Title: Vice President
LENDERS
FIRST UNION NATIONAL BANK,
individually and in its capacity as
Administrative Agent hereunder
By: _________________________
Name:
Title:
BANK ONE, MICHIGAN,
individually and in its capacity as
Syndication Agent hereunder
By: _________________________
Name:
Title:
22
23
[EXECUTIONS CONTINUED]
THE CHASE MANHATTAN BANK,
individually and in its capacity as
Documentation Agent hereunder
By: _________________________
Name:
Title:
BANCO ESPIRITO SANTO, S.A.,
NASSAU BRANCH
By: _________________________
Name:
Title:
ALLFIRST BANK, f/k/a The First National
Bank of Maryland
By: _________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By: _________________________
Name:
Title:
HARRIS TRUST AND SAVINGS BANK
By: _________________________
Name:
Title:
23
24
[EXECUTIONS CONTINUED]
NATIONAL CITY BANK OF PENNSYLVANIA
By: _________________________
Name:
Title:
COMERICA BANK
By: _________________________
Name:
Title:
MELLON BANK, N.A.
By: _________________________
Name:
Title:
SUNTRUST BANK, ATLANTA
By: _________________________
Name:
Title:
WACHOVIA BANK, N.A.
By: _________________________
Name:
Title:
24
25
[EXECUTIONS CONTINUED]
BANK HAPOALIM B.M.
By: _________________________
Name:
Title:
BANKBOSTON, N.A.
By: _________________________
Name:
Title:
FLEET NATIONAL BANK
By: _________________________
Name:
Title:
THE BANK OF NEW YORK
By: _________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: _________________________
Name:
Title:
25
26
[EXECUTIONS CONTINUED]
CREDIT LYONNAIS NEW YORK BRANCH
By: _________________________
Name:
Title:
ERSTE BANK
By: _________________________
Name:
Title:
MICHIGAN NATIONAL BANK
By: _________________________
Name:
Title:
26
27
EXHIBIT A
SCHEDULE 3
CALCULATION OF MLA COSTS
(a) The MLA Cost for any Alternate Currency Loan made by any Lender is
calculated in accordance with the following formula:
BY + L(Y-X) + S(Y-Z) % per annum = MLA Cost
-------------------------------------------
100 - (B+S)
where on the day of application of the formula:
B is the percentage of such Lender's eligible liabilities which
the Bank of England requires such Lender to hold on a
non-interest-bearing deposit account in accordance with its
cash ratio requirements;
Y is the interest rate applicable to such Alternate Currency
Loan;
L is the percentage of eligible liabilities which the Bank of
England requires such Lender to maintain as secured money with
members of the London Discount Market Association and/or as
secured call money with certain money brokers and gilt-edged
primary market makers;
X is the rate at which secured Pounds Sterling deposits in the
relevant amount may be placed by such Lender with members of
the London Discount Market Association and/or as secured call
money with certain money brokers and gilt-edged primary market
makers at or about 11:00 a.m. on that day for the relevant
period;
S is the percentage of such Lender's eligible liabilities which
the Bank of England requires such Lender to place as a special
deposit; and
Z is the interest rate per annum allowed by the Bank of England
on special deposits.
(b) For the purposes of this Schedule 3:
(i) "eligible liabilities" and "special deposits" have the
meanings given to them at the time of application of the
formula by the Bank of England.
27
28
EXHIBIT B
RECEIVABLE
Receivable means any indebtedness and other obligations owed to a
Securitization Subsidiary or any Borrower by, or any right of a Securitization
Subsidiary or any Borrower to payment from or on behalf of, a person obligated
to make payments pursuant to the Contract (as defined in Exhibit C) relating to
such Receivable (the "Obligor"), whether constituting an account, chattel paper,
instrument or general intangible, arising from the sale of goods or rendering of
services by a Borrower, and includes the obligation to pay any finance charges,
fees and other charges with respect thereto. Indebtedness and any other
obligations arising from any one transaction, including indebtedness and other
obligations represented by an individual invoice or agreement, shall constitute
a Receivable separate from a Receivable consisting of the indebtedness and other
obligations arising from any other transaction.
28
29
EXHIBIT C
RELATED SECURITY
Related Security means, with respect to any Receivable:
(a) all of a Securitization Subsidiary's and the respective
Borrower's interest in any goods (including returned goods), and
documentation of title evidencing the shipment or storage of any goods
(including returned goods), relating to any sale giving rise to such
Receivable.
(b) all instruments and chattel paper that may evidence such
Receivable,
(c) all other security interests or liens and property subject
thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the contract related to such Receivable
or otherwise, together with all UCC financing statements or similar
filings relating thereto, and
(d) all of the Securitization Subsidiary's and the respective
Borrower's rights, interests and claims under any and all contracts,
instruments, agreements, leases, invoices, notes or other writings
pursuant to which a Receivable arises or that evidence such Receivable
or under which an Obligor (as defined in Exhibit B) becomes or is
obligated to make payment in respect of such Receivable (the
"Contracts") and all guaranties, indemnities, insurance and other
agreements (including the related Contract) or arrangements of whatever
character from time to time supporting or securing payment of such
Receivable or otherwise relating to such Receivable, whether pursuant
to the Contract related to such Receivable or otherwise.
29
30
EXHIBIT D
RELATED ASSETS
"Related Assets" means, with respect to any Receivable:
(a) all monies due or to become due to a Borrower with respect
to any Receivable or Related Security;
(b) all books and records of a Borrower related to any
Receivable or Related Security; and
(c) all collections and other proceeds and products of any of
the foregoing or any Receivable or Related Security (as defined in the
applicable UCC), including, without limitation, (i) all funds received
by any Borrower or Securitization Subsidiary from or on behalf of the
Obligors (as defined in Exhibit B), in payment of any amounts owed
(including, without limitation, invoice price, finance charges,
interest and all other charges) in respect of Receivables; (ii) all
amounts (including any insurance proceeds) to be applied by a Borrower
or Securitization Subsidiary to any amount owed in respect of any
Receivable, and (iii) all net proceeds of sale or other disposition of
repossessed goods or other collateral or property of the Obligors or
any other parties directly or indirectly liable for payment of such
Receivables, in respect of Receivables, all net proceeds.
30
31
EXHIBIT E
COLLECTIONS
"Collections" means, with respect to any Receivable: (a) all funds that
are received by a Borrower or a Securitization Subsidiary in payment of any
amounts owed in respect of such Receivable (including purchase price, finance
charges, interest and all other charges), or applied to amounts owed in respect
of such Receivable (including insurance payments and net proceeds of the sale or
other disposition of repossessed goods or other collateral or property of the
related Obligor (as defined in Exhibit B) or any other person directly or
indirectly liable for the payment of such Receivable and available to be applied
thereon), (b) all Collections deemed to have been received as a result of any
defective, rejected, returned, repossessed or foreclosed goods or services, or
any revision, cancellation, allowance, discount or other adjustment made by the
Securitization Subsidiary or any affiliate of a Securitization Subsidiary and an
Obligor, and (c) all other proceeds of such Receivable.
31