1
Exhibit 4.6
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RECEIVABLES PURCHASE AGREEMENT
DATED AS OF JUNE 30, 2000
AMONG
FULTON FUNDING CORPORATION,
AS THE SELLER
JLG INDUSTRIES, INC.,
AS THE SERVICER
MARKET STREET FUNDING CORPORATION,
AS THE ISSUER
AND
PNC BANK, NATIONAL ASSOCIATION,
AS THE ADMINISTRATOR
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Receivables Purchase Agreement
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TABLE OF CONTENTS
Page
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 1.1 Purchase Facility . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Making Purchases . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.3 Purchased Interest Computation . . . . . . . . . . . . . . . 2
SECTION 1.4 Settlement Procedures . . . . . . . . . . . . . . . . . . . 3
SECTION 1.5 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 1.6 Payments and Computations, Etc. . . . . . . . . . . . . . . 6
SECTION 1.7 Increased Costs . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 1.8 Requirements of Law . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.9 Inability to Determine Euro-Rate . . . . . . . . . . . . . . 8
ARTICLE II
REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
SECTION 2.1 Representations and Warranties; Covenants . . . . . . . . . 9
SECTION 2.2 Termination Events . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE III
INDEMNIFICATION
SECTION 3.1 Indemnities by the Seller . . . . . . . . . . . . . . . . . 9
SECTION 3.2 Indemnities by the Servicer . . . . . . . . . . . . . . . . 11
ARTICLE IV
ADMINISTRATION AND COLLECTIONS
SECTION 4.1 Appointment of the Servicer . . . . . . . . . . . . . . . . 11
SECTION 4.2 Duties of the Servicer . . . . . . . . . . . . . . . . . . 12
SECTION 4.3 Lock-Box Arrangements . . . . . . . . . . . . . . . . . . . 13
SECTION 4.4 Enforcement Rights . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.5 Responsibilities of the Seller . . . . . . . . . . . . . . . 14
SECTION 4.6 Servicing Fee . . . . . . . . . . . . . . . . . . . . . . . 15
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ARTICLE V
MISCELLANEOUS
SECTION 5.1 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.2 Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.3 Assignability . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.4 Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . 16
SECTION 5.5 No Proceedings; Limitation on Payments . . . . . . . . . . . 17
SECTION 5.6 Confidentiality . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.7 GOVERNING LAW AND JURISDICTION . . . . . . . . . . . . . . . 17
SECTION 5.8 Execution in Counterparts . . . . . . . . . . . . . . . . . 18
SECTION 5.9 Survival of Termination . . . . . . . . . . . . . . . . . . 18
SECTION 5.10 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.11 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.12 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 5.13 Issuer's Liabilities . . . . . . . . . . . . . . . . . . . . 19
SECTION 5.14 Administrative Errors . . . . . . . . . . . . . . . . . . . 19
EXHIBIT I Definitions
EXHIBIT II Conditions of Purchases
EXHIBIT III Representations and Warranties
EXHIBIT IV Covenants
EXHIBIT V Termination Events
SCHEDULE I Credit and Collection Policy
SCHEDULE II Lock-box Banks and Lock-box Accounts
SCHEDULE III Trade Names
SCHEDULE IV Accounting Months
ANNEX A Form of Information Package
ANNEX B Form of Purchase Notice
ANNEX C Form of Paydown Notice
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THIS RECEIVABLES PURCHASE AGREEMENT, dated as of June 30, 2000, among
FULTON FUNDING CORPORATION, a Delaware corporation, as the seller (the
"Seller"), JLG INDUSTRIES, INC., a Pennsylvania corporation ("JLG"), as initial
servicer (in such capacity, together with its successors and permitted assigns
in such capacity, the "Servicer"), MARKET STREET FUNDING CORPORATION, a Delaware
corporation (together with its successors and permitted assigns, the "Issuer"),
and PNC BANK, NATIONAL ASSOCIATION, a national banking association ("PNC"), as
administrator (in such capacity, together with its successors and assigns in
such capacity, the "Administrator").
DEFINITIONS
Unless otherwise indicated herein, capitalized terms used in this
Agreement are defined in Exhibit I to this Agreement. All references herein to
months are to calendar months unless otherwise expressly indicated.
BACKGROUND:
The Seller desires to sell, transfer and assign an undivided variable
percentage interest in a pool of receivables, and the Issuer desires to acquire
such undivided variable percentage interest, as such percentage interest shall
be adjusted from time to time based upon, in part, reinvestment payments that
are made by the Issuer.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties hereto agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 1.1 Purchase Facility. (a) On the terms and conditions
hereinafter set forth, the Issuer hereby agrees to purchase, and make
reinvestments of, undivided percentage ownership interests with regard to the
Purchased Interest from the Seller from time to time from the date hereof to the
Facility Termination Date. Under no circumstances shall the Issuer make any such
purchase or reinvestment if, after giving effect to such purchase or
reinvestment, the aggregate outstanding Capital of the Purchased Interest would
exceed the Purchase Limit.
(b) The Seller may, upon at least 30 days' written notice to the
Administrator, terminate the purchase facility provided in this Section in whole
or, upon at least 30 days' written notice to the Administrator, from time to
time, irrevocably reduce in part the unused portion of the Purchase Limit;
provided that each partial reduction shall be in the amount of at least
$5,000,000, or an integral multiple
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of $1,000,000 in excess thereof, and that, unless terminated in whole, the
Purchase Limit shall in no event be reduced below $20,000,000.
SECTION 1.2 Making Purchases. (a) Each purchase (but not reinvestment) of
undivided percentage ownership interests with regard to the Purchased Interest
hereunder shall be made upon the Seller's irrevocable written notice in the form
of Annex A delivered to the Administrator in accordance with Section 5.2 (which
notice must be received by the Administrator before 11:00 a.m., New York City
time) at least two Business Days before the requested purchase date, which
notice shall specify: (A) the amount requested to be paid to the Seller (such
amount, which shall not be less than $1,000,000 and shall be in integral
multiples of $100,000, being the Capital relating to the undivided percentage
ownership interest then being purchased), (B) the date of such purchase (which
shall be a Business Day), and (C) the pro forma calculation of the Purchased
Interest after giving effect to the increase in Capital.
(b) On the date of each purchase (but not reinvestment) of
undivided percentage ownership interests with regard to the Purchased Interest
hereunder, the Issuer shall, upon satisfaction of the applicable conditions set
forth in Exhibit II, make available to the Seller in same day funds, at PNC
Bank, account number 5604147997, ABA # 031100089, an amount equal to the Capital
relating to the undivided percentage ownership interest then being purchased.
(c) Effective on the date of each purchase pursuant to this
Section and each reinvestment pursuant to Section 1.4, the Seller hereby sells
and assigns to the Issuer an undivided percentage ownership interest in: (i)
each Pool Receivable then existing, (ii) all Related Security with respect to
such Pool Receivables, and (iii) all Collections with respect to, and other
proceeds of, such Pool Receivables and Related Security.
(d) To secure all of the Seller's obligations (monetary or
otherwise) under this Agreement and the other Transaction Documents to which it
is a party, whether now or hereafter existing or arising, due or to become due,
direct or indirect, absolute or contingent, the Seller hereby grants to the
Issuer a security interest in all of the Seller's right, title and interest
(including any undivided interest of the Seller) in, to and under all of the
following, whether now or hereafter owned, existing or arising: (i) all Pool
Receivables, (ii) all Related Security with respect to such Pool Receivables,
(iii) all Collections with respect to such Pool Receivables, (iv) the Lock-Box
Accounts and all amounts on deposit therein, and all certificates and
instruments, if any, from time to time evidencing such Lock-Box Accounts and
amounts on deposit therein, (v) all books and records of each Receivable, and
all Transaction Documents to which the Seller is a party, together with all
rights (but not obligations) of the Seller, (vi) all proceeds of, and all
amounts received or receivable under any or all of, the foregoing (collectively,
the "Pool Assets"). The Issuer shall have, with respect to the Pool Assets, and
in addition to all the other rights and remedies available to the Issuer, all
the rights and remedies of a secured party under any applicable UCC.
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SECTION 1.3 Purchased Interest Computation. The Purchased Interest shall
be initially computed on the date of the initial purchase hereunder. Thereafter,
until the Facility Termination Date, the Purchased Interest shall be
automatically recomputed (or deemed to be recomputed) on each Business Day other
than a Termination Day. The Purchased Interest as computed (or deemed
recomputed) as of the day before the Facility Termination Date shall thereafter
remain constant. The Purchased Interest shall become zero when the Capital
thereof and Discount thereon shall have been paid in full, all the amounts owed
by the Seller and the Servicer hereunder to the Issuer, the Administrator and
any other Indemnified Party or Affected Person are paid in full, and the
Servicer shall have received the accrued Servicing Fee thereon.
SECTION 1.4 Settlement Procedures. (a) The collection of the Pool
Receivables shall be administered by the Servicer in accordance with this
Agreement. The Seller shall provide to the Servicer on a timely basis all
information needed for such administration, including notice of the occurrence
of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool
Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the
Administrator, segregate in a separate account approved by the
Administrator if, at the time of such request, there exists an Unmatured
Termination Event or a Termination Event or if the failure to so
segregate reasonably could be expected to cause a Material Adverse
Effect) for the Issuer, out of the Issuer's Share of such Collections,
first, an amount equal to the Discount accrued through such day for each
Portion of Capital and not previously set aside, second, an amount equal
to the fees set forth in the Fee Letter accrued and unpaid through such
day, and third, to the extent funds are available therefor, an amount
equal to the Issuer's Share of the Servicing Fee accrued through such day
and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination
Day, remit to the Seller, on behalf of the Issuer, the remainder of the
Issuer's Share of such Collections. Such remainder shall be automatically
reinvested in Pool Receivables, and in the Related Security, Collections
and other proceeds with respect thereto; provided, however, that if the
Purchased Interest would exceed 100%, then the Servicer shall not
reinvest, but shall set aside and hold in trust for the Issuer (and
shall, at the request of the Administrator, segregate in a separate
account approved by the Administrator if, at the time of such request,
there exists an Unmatured Termination Event or a Termination Event or if
the failure to so segregate reasonably could be expected to cause a
Material Adverse Effect) a portion of such Collections that, together
with the other Collections set aside pursuant to this paragraph, shall
equal the amount necessary to reduce the Purchased Interest to 100%;
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(iii) if such day is a Termination Day, set aside, segregate and
hold in trust (and shall, at the request of the Administrator, segregate
in a separate account approved by the Administrator) for the Issuer the
entire remainder of the Issuer's Share of the Collections; provided, that
if amounts are set aside and held in trust on any Termination Day of the
type described in clause (a) of the definition of "Termination Day" and,
thereafter, the conditions set forth in Section 2 of Exhibit II are
satisfied or waived by the Administrator, such previously set-aside
amounts shall be reinvested in accordance with clause (ii) on the day of
such subsequent satisfaction or waiver of conditions; and
(iv) release to the Seller (subject to Section 1.4(f)) for its
own account any Collections in excess of: (x) amounts required to be
reinvested in accordance with clause (ii) or the proviso to clause (iii)
plus (y) the amounts that are required to be set aside pursuant to clause
(i), the proviso to clause (ii) and clause (iii) plus (z) the Seller's
Share of the Servicing Fee accrued and unpaid through such day and all
reasonable and appropriate out-of-pocket costs and expenses of the
Servicer for servicing, collecting and administering the Pool
Receivables.
(c) The Servicer shall deposit into the Administration Account
(or such other account designated by the Administrator), on each Monthly
Settlement Date, Collections held for the Issuer pursuant to clause (b)(i) or
(f) plus the amount of Collections then held for the Issuer pursuant to clauses
(b)(ii) and (iii) of Section 1.4; provided that if JLG or an Affiliate thereof
is the Servicer, such day is not a Termination Day and the Administrator has not
notified JLG (or such Affiliate) that such right is revoked, JLG (or such
Affiliate) may retain the portion of the Collections set aside pursuant to
clause (b)(i) that represents the Issuer's Share of the Servicing Fee. On the
last day of each Settlement Period, the Administrator will notify the Servicer
by facsimile of the amount of Discount accrued with respect to each Portion of
Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration
Account pursuant to clause (c), the Administrator shall cause such funds to be
distributed as follows:
(i) if such distribution occurs on a day that is not a
Termination Day and the Purchased Interest does not exceed 100%, first to
the Issuer in payment in full of all accrued Discount and fees (other
than Servicing Fees) with respect to each Portion of Capital, and second,
if the Servicer has set aside amounts in respect of the Servicing Fee
pursuant to clause (b)(i) and has not retained such amounts pursuant to
clause (c), to the Servicer (payable in arrears on each Monthly
Settlement Date) in payment in full of the Issuer's Share of accrued
Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day
when the Purchased Interest exceeds 100%, first to the Issuer in payment
in full of all accrued Discount with respect to each Portion of Capital,
second to the Issuer in payment in full of Capital (or, if such day is
not
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a Termination Day, the amount necessary to reduce the Purchased Interest
to 100%), third, to the Servicer in payment in full of all accrued
Servicing Fees, and fourth, if the Capital and accrued Discount with
respect to each Portion of Capital have been reduced to zero, and all
accrued Servicing Fees payable to the Servicer have been paid in full, to
the Issuer, the Administrator and any other Indemnified Party or Affected
Person in payment in full of any other amounts owed thereto by the Seller
hereunder.
After the Capital, Discount, fees payable pursuant to the Fee Letter and
Servicing Fees with respect to the Purchased Interest, and any other amounts
payable by the Seller and the Servicer to the Issuer, the Administrator or any
other Indemnified Party or Affected Person hereunder, have been paid in full,
all additional Collections with respect to the Purchased Interest shall be paid
to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable
is reduced or adjusted 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 Seller
or any Affiliate of the Seller, or any setoff or dispute between the
Seller or any Affiliate of the Seller and an Obligor, the Seller shall be
deemed to have received on such day a Collection of such Pool Receivable
in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in
Section 1(g) or (n) of Exhibit III is not true with respect to any Pool
Receivable, the Seller shall be deemed to have received on such day a
Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise
required by applicable law or the relevant Contract, all Collections
received from an Obligor of any Receivable shall be applied to the
Receivables of such Obligor in the order of the age of such Receivables,
starting with the oldest such Receivable, unless such Obligor designates
in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall
be required for any reason to pay over to an Obligor (or any trustee,
receiver, custodian or similar official in any Insolvency Proceeding) any
amount received by it hereunder, such amount shall be deemed not to have
been so received by the Administrator or the Issuer but rather to have
been retained by the Seller and, accordingly, the Administrator or the
Issuer, as the case may be, shall have a claim against the Seller for
such amount, payable when and to the extent that any distribution from or
on behalf of such Obligor is made in respect thereof.
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(f) If at any time the Seller shall wish to cause the reduction
of Capital or a portion thereof (but not to commence the liquidation, or
reduction to zero, of the entire Capital of the Purchased Interest), the Seller
may do so as follows:
(i) the Seller shall give the Administrator and the Servicer
written notice in the form of Annex B at least two Business Days' prior
to the date of such reduction for any reduction of Capital less than or
equal to $25,000,000 and (B) at least five Business Days' prior to the
date of such reduction for any reduction of Capital greater than
$25,000,000; and
(ii) on the proposed date of such reduction, (A) the Seller shall
remit to the Administration Account cash and instructions to apply such
cash to the reduction of such Capital and Discount to accrue (until such
cash can be used to pay Notes) with respect to such Capital, and to pay
all costs related to such Capital reduction or, at the election of the
Seller, (B) on the proposed date of commencement of such reduction and on
each day thereafter, the Servicer shall cause Collections with respect to
such Portion of Capital not to be reinvested until the amount thereof not
so reinvested shall equal the desired amount of reduction and the
Servicer shall hold such Collections in trust for the Purchasers, for
payment to the Administrator on the last day of the current Settlement
Period relating to such Portion of Capital (as specified by the Seller),
and the applicable Portion of Capital shall be deemed reduced in the
amount to be paid to the Agent only when in fact finally so paid;
provided that the amount of any such reduction shall be not less than $1,000,000
and shall be an integral multiple of $100,000, and the entire Capital of the
Purchased Interest after giving effect to such reduction shall be not less than
$20,000,000 and shall be in an integral multiple of $100,000.
SECTION 1.5 Fees. The Seller shall pay to the Administrator certain fees
in the amounts and on the dates set forth in a letter, dated the date hereof,
among JLG, the Seller and the Administrator (as such letter agreement may be
amended, supplemented or otherwise modified from time to time, the "Fee
Letter").
SECTION 1.6 Payments and Computations, Etc. (a) All amounts to be paid or
deposited by the Seller or the Servicer hereunder shall be made without
reduction for offset or counterclaim and shall be paid or deposited no later
than 1:00 p.m. (New York City time) on the day when due in same day funds to the
Administration Account. All amounts received after noon (New York City time)
will be deemed to have been received on the next Business Day.
(b) The Seller or the Servicer, as the case may be, shall, to the
extent permitted by law, pay interest on any amount not paid or deposited by the
Seller or the Servicer, as the case may be, when due hereunder, at an interest
rate equal to 2.0% per annum above the Base Rate, payable on demand.
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(c) All computations of interest under clause (b) and all
computations of Discount, fees and other amounts hereunder shall be made on the
basis of a year of 360 (or 365 or 366, as applicable, with respect to Discount
or other amounts calculated by reference to the Base Rate) days for the actual
number of days elapsed. Whenever any payment or deposit to be made hereunder
shall be due on a day other than a Business Day, such payment or deposit shall
be made on the next Business Day and such extension of time shall be included in
the computation of such payment or deposit.
SECTION 1.7 Increased Costs. (a) If the Administrator, the Issuer, any
Purchaser, any other Program Support Provider or any of their respective
Affiliates (each an "Affected Person") reasonably determines that the existence
of or compliance with: (i) any law or regulation or any change therein or in the
interpretation or application thereof, in each case adopted, issued or occurring
after the date hereof, or (ii) any request, guideline or directive from any
central bank or other Governmental Authority (whether or not having the force of
law) issued or occurring after the date of this Agreement, affects the amount of
capital required or expected to be maintained by such Affected Person, and such
Affected Person determines that the amount of such capital is increased by or
based upon the existence of any commitment to make purchases of (or otherwise to
maintain the investment in) Pool Receivables related to this Agreement or any
related liquidity facility, credit enhancement facility and other commitments of
the same type, then, upon demand by such Affected Person (with a copy to the
Administrator), the Seller shall promptly pay to the Administrator, for the
account of such Affected Person, from time to time as specified by such Affected
Person, additional amounts sufficient to compensate such Affected Person in the
light of such circumstances, to the extent that such Affected Person reasonably
determines such increase in capital to be allocable to the existence of any of
such commitments. A certificate as to such amounts submitted to the Seller and
the Administrator by such Affected Person shall be conclusive and binding for
all purposes, absent manifest error.
(b) If, due to either: (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) compliance with any guideline or
request from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be any increase in the cost to any
Affected Person of agreeing to purchase or purchasing, or maintaining the
ownership of, the Purchased Interest in respect of which Discount is computed by
reference to the Euro-Rate, then, upon demand by such Affected Person, the
Seller shall promptly pay to such Affected Person, from time to time as
specified by such Affected Person, additional amounts sufficient to compensate
such Affected Person for such increased costs. A certificate as to such amounts
submitted to the Seller and the Administrator by such Affected Person shall be
conclusive and binding for all purposes, absent manifest error.
(c) If such increased costs affect the related Affected Person's
portfolio of financing transactions, such Affected Person shall use reasonable
averaging and attribution methods to allocate such increased costs to the
transactions contemplated by this Agreement.
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SECTION 1.8 Requirements of Law. If any Affected Person reasonably
determines that the existence of or compliance with: (a) any law or regulation
or any change therein or in the interpretation or application thereof, in each
case adopted, issued or occurring after the date hereof, or (b) any request,
guideline or directive from any central bank or other Governmental Authority
(whether or not having the force of law) issued or occurring after the date of
this Agreement:
(i) does or shall subject such Affected Person to any tax of any
kind whatsoever with respect to this Agreement, any increase in the
Purchased Interest or in the amount of Capital relating thereto, or does
or shall change the basis of taxation of payments to such Affected Person
on account of Collections, Discount or any other amounts payable
hereunder (excluding taxes imposed on the overall pre-tax net income of
such Affected Person, and franchise taxes imposed on such Affected
Person, by the jurisdiction under the laws of which such Affected Person
is organized or a political subdivision thereof),
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities in or for the account of,
purchases, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Affected Person that
are not otherwise included in the determination of the Euro-Rate or the
Base Rate hereunder, or
(iii) does or shall impose on such Affected Person any other
expense or liability,
and the result of any of the foregoing is: (A) to increase the cost to such
Affected Person of acting as Administrator, or of agreeing to purchase or
purchasing or maintaining the ownership of undivided percentage ownership
interests with regard to the Purchased Interest (or interests therein) or any
Portion of Capital, or (B) to reduce any amount receivable hereunder (whether
directly or indirectly), then, in any such case, upon demand by such Affected
Person, the Seller shall promptly pay to such Affected Person additional amounts
necessary to compensate such Affected Person for such additional cost or reduced
amount receivable. All such amounts shall be payable as incurred. A certificate
from such Affected Person to the Seller and the Administrator certifying, in
reasonably specific detail, the basis for, calculation of, and amount of such
additional costs or reduced amount receivable shall be conclusive and binding
for all purposes, absent manifest error; provided, however, that no Affected
Person shall be required to disclose any confidential or tax planning
information in any such certificate.
SECTION 1.9 Inability to Determine Euro-Rate. (a) If the Administrator
determines before the first day of any Settlement Period (which determination
shall be final and conclusive) that, by reason of circumstances affecting the
interbank eurodollar market generally, deposits in dollars (in the relevant
amounts for such Settlement Period) are not being offered to banks in the
interbank eurodollar market for such Settlement Period, or adequate means do not
exist for ascertaining the Euro-Rate for such Settlement Period, then the
Administrator shall give notice thereof to the Seller. Thereafter, until the
Administrator
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notifies the Seller that the circumstances giving rise to such suspension no
longer exist, (a) no Portion of Capital shall be funded at the Alternate Rate
determined by reference to the Euro-Rate and (b) the Discount for any
outstanding Portions of Capital then funded at the Alternate Rate determined by
reference to the Euro-Rate shall, on the last day of the then current Settlement
Period, be converted to the Alternate Rate determined by reference to the Base
Rate.
(b) If, on or before the first day of any Settlement Period, the
Administrator shall have been notified by any Purchaser that, such Purchaser has
determined (which determination shall be final and conclusive) that, 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 such Purchaser 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 such Purchaser to fund or maintain any Portion of Capital at the
Alternate Rate and based upon the Euro-Rate, the Administrator shall notify the
Seller thereof. Upon receipt of such notice, until the Administrator notifies
the Seller that the circumstances giving rise to such determination no longer
apply, (a) no Portion of Capital shall be funded at the Alternate Rate
determined by reference to the Euro-Rate and (b) the Discount for any
outstanding Portions of Capital then funded at the Alternate Rate determined by
reference to the Euro- Rate shall be converted to the Alternate Rate determined
by reference to the Base Rate either (i) on the last day of the then current
Settlement Period if such Purchaser may lawfully continue to maintain such
Portion of Capital at the Alternate Rate determined by reference to the
Euro-Rate to such day, or (ii) immediately, if such Purchaser may not lawfully
continue to maintain such Portion of Capital at the Alternate Rate determined by
reference to the Euro-Rate to such day.
ARTICLE II
REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
SECTION 2.1 Representations and Warranties; Covenants. Each of the
Seller, JLG and the Servicer hereby makes the representations and warranties,
and hereby agrees to perform and observe the covenants, applicable to it set
forth in Exhibits III and IV respectively.
SECTION 2.2 Termination Events. If any of the Termination Events set
forth in Exhibit V shall occur, the Administrator may, by notice to the Seller,
declare the Facility Termination Date to have occurred (in which case the
Facility Termination Date shall be deemed to have occurred); provided that
automatically upon the occurrence of any event (without any requirement for the
passage of time or the giving of notice) described in paragraph (f) of Exhibit
V, the Facility Termination Date shall occur. Upon any such declaration,
occurrence or deemed occurrence of the Facility Termination Date, the Issuer and
the Administrator shall have, in addition to the rights and remedies that they
may have under this
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13
Agreement, all other rights and remedies provided after default under the New
York UCC and under other applicable law, which rights and remedies shall be
cumulative.
ARTICLE III
INDEMNIFICATION
SECTION 3.1 Indemnities by the Seller. Without limiting any other rights
that the Administrator, the Issuer, any Program Support Provider or any of their
respective Affiliates, employees, officers, directors, agents, counsel,
successors, transferees or assigns (each, an "Indemnified Party") may have
hereunder or under applicable law, the Seller hereby agrees to indemnify each
Indemnified Party from and against any and all claims, damages, expenses, costs,
losses and liabilities (including Attorney Costs) (all of the foregoing being
collectively referred to as "Indemnified Amounts") arising out of or resulting
from this Agreement (whether directly or indirectly), the use of proceeds of
purchases or reinvestments, the ownership of the Purchased Interest, or any
interest therein, or in respect of any Receivable, Related Security or Contract,
excluding, however: (a) Indemnified Amounts to the extent resulting from gross
negligence or willful misconduct on the part of such Indemnified Party or its
officers, directors, agents or counsel, (b) recourse (except as otherwise
specifically provided in this Agreement) for Receivables, or (c) any overall net
income taxes or franchise taxes imposed on such Indemnified Party by the
jurisdiction under the laws of which such Indemnified Party is organized or any
political subdivision thereof. Without limiting or being limited by the
foregoing, and subject to the exclusions set forth in the preceding sentence,
the Seller shall pay on demand (which demand shall be accompanied by
documentation of the Indemnified Amounts, in reasonable detail) to each
Indemnified Party any and all amounts necessary to indemnify such Indemnified
Party from and against any and all Indemnified Amounts relating to or resulting
from any of the following:
(a) the failure of any Receivable included in the calculation of
the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible
Receivable, the failure of any information contained in an Information Package
to be true and correct, or the failure of any other information provided to the
Issuer or the Administrator with respect to Receivables or this Agreement to be
true and correct,
(b) the failure of any representation, warranty or statement made
or deemed made by the Seller (or any of its officers) under or in connection
with this Agreement to have been true and correct as of the date made or deemed
made in all respects when made,
(c) the failure by the Seller to comply with any applicable law,
rule or regulation with respect to any Pool Receivable or the related Contract,
or the failure of any Pool Receivable or the related Contract to conform to any
such applicable law, rule or regulation,
(d) the failure to vest in the Issuer a valid and enforceable:
(A) perfected undivided percentage ownership interest, to the extent of the
Purchased Interest, in the Receivables in, or purporting
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14
to be in, the Receivables Pool and the other Pool Assets, or (B) first priority
perfected security interest in the Pool Assets, in each case, free and clear of
any Adverse Claim,
(e) the failure to have filed, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of any
applicable jurisdiction or other applicable laws with respect to any Receivables
in, or purporting to be in, the Receivables Pool and the other Pool Assets,
whether at the time of any purchase or reinvestment or at any subsequent time,
(f) any dispute, claim, offset or defense (other than discharge
in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable
in, or purporting to be in, the Receivables Pool (including a defense based on
such Receivable or the related Contract not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its terms),
or any other claim resulting from the sale of the goods or services related to
such Receivable or the furnishing or failure to furnish such goods or services
or relating to collection activities with respect to such Receivable (if such
collection activities were performed by the Seller or any of its Affiliates
acting as Servicer or by any agent or independent contractor retained by the
Seller or any of its Affiliates),
(g) any failure of the Seller (or any of its Affiliates acting as
the Servicer) to perform its duties or obligations in accordance with the
provisions hereof or under the Contracts,
(h) any products liability or other claim, investigation,
litigation or proceeding arising out of or in connection with merchandise,
insurance or services that are the subject of any Contract,
(i) the commingling of Collections at any time with other funds,
(j) the use of proceeds of purchases or reinvestments, or
(k) any reduction in Capital as a result of the distribution of
Collections pursuant to Section 1.4(d), if all or a portion of such
distributions shall thereafter be rescinded or otherwise must be returned for
any reason.
SECTION 3.2 Indemnities by the Servicer. Without limiting any other
rights that the Administrator, the Issuer or any other Indemnified Party may
have hereunder or under applicable law, the Servicer hereby agrees to indemnify
each Indemnified Party from and against any and all Indemnified Amounts arising
out of or resulting from (whether directly or indirectly): (a) the failure of
any information contained in an Information Package to be true and correct, or
the failure of any other information provided to the Issuer or the Administrator
by, or on behalf of, the Servicer to be true and correct, (b) the failure of any
representation, warranty or statement made or deemed made by the Servicer (or
any of its officers) under or in connection with this Agreement to have been
true and correct as of the date made or deemed made in all respects when made,
(c) the failure by the Servicer to comply with any applicable law, rule or
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15
regulation with respect to any Pool Receivable or the related Contract, (d) any
dispute, claim, offset or defense of the Obligor to the payment of any
Receivable in, or purporting to be in, the Receivables Pool resulting from or
related to the collection activities with respect to such Receivable, or (e) any
failure of the Servicer to perform its duties or obligations in accordance with
the provisions hereof.
ARTICLE IV
ADMINISTRATION AND COLLECTIONS
SECTION 4.1 Appointment of the Servicer. (a) The servicing, administering
and collection of the Pool Receivables shall be conducted by the Person so
designated from time to time as the Servicer in accordance with this Section.
Until the Administrator gives notice to JLG (in accordance with this Section) of
the designation of a new Servicer, JLG is hereby designated as, and hereby
agrees to perform the duties and obligations of, the Servicer pursuant to the
terms hereof. Upon the occurrence of a Termination Event (but not prior
thereto), the Administrator may designate as Servicer any Person (including
itself) to succeed JLG or any successor Servicer, on the condition in each case
that any such Person so designated shall agree to perform the duties and
obligations of the Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Servicer as set forth in
clause (a), JLG agrees that it will terminate its activities as Servicer
hereunder in a manner that the Administrator determines will facilitate the
transition of the performance of such activities to the new Servicer, and JLG
shall cooperate with and assist such new Servicer. Such cooperation shall
include access to and transfer of related records and use by the new Servicer of
all licenses, hardware or software necessary or desirable to collect the Pool
Receivables and the Related Security.
(c) JLG acknowledges that, in making their decision to execute
and deliver this Agreement, the Administrator and the Issuer have relied on JLG'
agreement to act as Servicer hereunder. Accordingly, JLG agrees that it will not
voluntarily resign as Servicer.
(d) The Servicer may delegate its duties and obligations
hereunder to any subservicer (each a "Sub-Servicer"); provided, that, in each
such delegation: (i) such Sub-Servicer shall agree in writing to perform the
duties and obligations of the Servicer pursuant to the terms hereof, (ii) the
Servicer shall remain primarily liable for the performance of the duties and
obligations so delegated, (iii) the Seller, the Administrator and the Issuer
shall have the right to look solely to the Servicer for performance, and (iv)
the terms of any agreement with any Sub-Servicer shall provide that the
Administrator may terminate such agreement upon the termination of the Servicer
hereunder by giving notice of its desire to terminate such agreement to the
Servicer (and the Servicer shall provide appropriate notice to each such
Sub-Servicer); provided, however, that if any such delegation is to any Person
other than an Originator, the Administrator shall have consented in writing in
advance to such delegation (such consent not to be unreasonably withheld or
delayed).
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16
SECTION 4.2 Duties of the Servicer. (a) The Servicer shall take or cause
to be taken all such action as may be necessary or advisable to administer and
collect each Pool Receivable from time to time, all in accordance with this
Agreement and all applicable laws, rules and regulations, with reasonable care
and diligence, and in accordance with the Credit and Collection Policies. The
Servicer shall set aside, for the accounts of the Seller and the Issuer, the
amount of the Collections to which each is entitled in accordance with Article
I. The Servicer may, in accordance with the applicable Credit and Collection
Policies, extend the maturity of any Pool Receivable (but not beyond 30 days)
and extend the maturity or adjust the Outstanding Balance of any Defaulted
Receivable as the Servicer may determine to be appropriate to maximize
Collections thereof; provided, however, that: (i) such extension or adjustment
shall not alter the status of such Pool Receivable as a Delinquent Receivable or
a Defaulted Receivable or limit the rights of the Issuer or the Administrator
under this Agreement and (ii) if a Termination Event has occurred and JLG or an
Affiliate thereof is serving as the Servicer, JLG or such Affiliate may make
such extension or adjustment only upon the prior approval of the Administrator.
The Seller shall deliver to the Servicer and the Servicer shall hold for the
benefit of the Seller and the Administrator (individually and for the benefit of
the Issuer), in accordance with their respective interests, all records and
documents (including computer tapes or disks) with respect to each Pool
Receivable. Notwithstanding anything to the contrary contained herein, the
Administrator may direct the Servicer (whether the Servicer is JLG or any other
Person) to commence or settle any legal action to enforce collection of any Pool
Receivable or to foreclose upon or repossess any Related Security, provided that
no such direction may be given unless a Termination Event or an Unmatured
Termination Event has occurred and is continuing.
(b) The Servicer shall, as soon as practicable following actual
receipt of collected funds, turn over to the Seller the collections of any
indebtedness that is not a Pool Receivable, less, if JLG or an Affiliate thereof
is not the Servicer, all reasonable and appropriate out-of-pocket costs and
expenses of such Servicer of servicing, collecting and administering such
collections. The Servicer, if other than JLG or an Affiliate thereof, shall, as
soon as practicable upon demand, deliver to the Seller all records in its
possession that evidence or relate to any indebtedness that is not a Pool
Receivable, and copies of records in its possession that evidence or relate to
any indebtedness that is a Pool Receivable.
(c) The Servicer's obligations hereunder shall terminate on the
later of: (i) the Facility Termination Date and (ii) the date on which all
amounts required to be paid to the Issuer, the Administrator and any other
Indemnified Party or Affected Person hereunder shall have been paid in full.
After such termination, if JLG or an Affiliate thereof was not the Servicer on
the date of such termination, the Servicer shall promptly deliver to the Seller
all books, records and related materials that the Seller previously provided to
the Servicer, or that have been obtained by the Servicer, in connection with
this Agreement.
SECTION 4.3 Lock-Box Arrangements. Within 60 days of the initial purchase
hereunder, the Seller shall enter into Lock-Box Agreements with all of the
Lock-Box Banks and deliver original
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17
counterparts thereof to the Administrator. Upon the occurrence of a Termination
Event, the Administrator may at any time thereafter give notice to each Lock-Box
Bank that the Administrator is exercising its rights under the Lock-Box
Agreements to do any or all of the following: (a) to have the exclusive
ownership and control of the Lock-Box Accounts transferred to the Administrator
and to exercise exclusive dominion and control over the funds deposited therein,
(b) to have the proceeds that are sent to the respective Lock-Box Accounts
redirected pursuant to the Administrator's instructions rather than deposited in
the applicable Lock-Box Account, and (c) to take any or all other actions
permitted under the applicable Lock-Box Agreement. The Seller hereby agrees that
if the Administrator at any time takes any action set forth in the preceding
sentence, the Administrator shall have exclusive control of the proceeds
(including Collections) of all Pool Receivables and the Seller hereby further
agrees to take any other action that the Administrator may reasonably request to
transfer such control. Any proceeds of Pool Receivables received by the Seller
or the Servicer thereafter shall be sent immediately to the Administrator. The
parties hereto hereby acknowledge that if at any time the Administrator takes
control of any Lock-Box Account, the Administrator shall not have any rights to
the funds therein in excess of the unpaid amounts due to the Administrator, the
Issuer or any other Person hereunder, and the Administrator shall promptly
distribute or cause to be distributed such funds in accordance with Section
4.2(b) and Article I (in each case as if such funds were held by the Servicer
thereunder). The Seller hereby agrees to take all actions necessary to ensure
that all Lock-Box Accounts are in its name no later than 90 days following the
Closing Date.
SECTION 4.4 Enforcement Rights. (a) At any time following the occurrence
of a Termination Event:
(i) the Administrator may direct the Obligors that payment of all
amounts payable under any Pool Receivable is to be made directly to the
Administrator or its designee,
(ii) the Administrator may instruct the Seller or the Servicer to
give notice of the Issuer's interest in Pool Receivables to each Obligor,
which notice shall direct that payments be made directly to the
Administrator or its designee, and the Seller or the Servicer, as the
case may be, shall give such notice at the expense of the Seller or the
Servicer, as the case may be; provided that if the Seller or the
Servicer, as the case may be, fails to so notify each Obligor, the
Administrator (at the Seller's or the Servicer's, as the case may be,
expense) may so notify the Obligors, and
(iii) the Administrator may request the Servicer to, and upon
such request the Servicer shall: (A) assemble all of the records
necessary or desirable to collect the Pool Receivables and the Related
Security, and transfer or license to a successor Servicer the use of all
software necessary or desirable to collect the Pool Receivables and the
Related Security, and make the same available to the Administrator or its
designee at a place selected by the Administrator, and (B) segregate all
cash, checks and other instruments received by it from time to time
constituting Collections in a manner acceptable to the Administrator and,
promptly upon receipt, remit all such
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18
cash, checks and instruments, duly endorsed or with duly executed
instruments of transfer, to the Administrator or its designee.
(b) The Seller hereby authorizes the Administrator, and
irrevocably appoints the Administrator as its attorney-in-fact with full power
of substitution and with full authority in the place and stead of the Seller,
which appointment is coupled with an interest, to take any and all steps in the
name of the Seller and on behalf of the Seller necessary or desirable, in the
determination of the Administrator, to collect any and all amounts or portions
thereof due under any and all Pool Assets, including endorsing the name of the
Seller on checks and other instruments representing Collections and enforcing
such Pool Assets. The Administrator hereby agrees that it shall not exercise
such power or authority unless a Termination Event or an Unmatured Termination
Event has occurred and is continuing. Notwithstanding anything to the contrary
contained in this subsection, none of the powers conferred upon such
attorney-in- fact pursuant to the preceding sentence shall subject such
attorney-in-fact to any liability if any action taken by it shall prove to be
inadequate or invalid, nor shall they confer any obligations upon such
attorney-in-fact in any manner whatsoever.
SECTION 4.5 Responsibilities of the Seller. (a) Anything herein to the
contrary notwithstanding, the Seller shall: (i) perform all of its obligations,
if any, under the Contracts related to the Pool Receivables to the same extent
as if interests in such Pool Receivables had not been transferred hereunder, and
the exercise by the Administrator or the Issuer of their respective rights
hereunder shall not relieve the Seller from such obligations, and (ii) pay when
due any taxes, including any sales taxes payable in connection with the Pool
Receivables and their creation and satisfaction. The Administrator and the
Issuer shall not have any obligation or liability with respect to any Pool
Asset, nor shall either of them be obligated to perform any of the obligations
of the Seller, JLG or an Originator thereunder.
(b) JLG hereby irrevocably agrees that if at any time it shall
cease to be the Servicer hereunder, it shall act (if the then-current Servicer
so requests) as the data-processing agent of the Servicer and, in such capacity,
JLG shall conduct the data-processing functions of the administration of the
Receivables and the Collections thereon in substantially the same way that JLG
conducted such data- processing functions while it acted as the Servicer.
SECTION 4.6 Servicing Fee. (a) Subject to clause (b), the Servicer shall
be paid a fee equal to 0.50% per annum (the "Servicing Fee Rate") of the daily
average aggregate Outstanding Balance of the Pool Receivables. The Issuer's
Share of such fee shall be paid through the distributions contemplated by
Section 1.4(d), and the Seller's Share of such fee shall be paid by the Seller
on each Monthly Settlement Date.
(b) If the Servicer ceases to be JLG or an Affiliate thereof, the
servicing fee shall be the greater of: (i) the amount calculated pursuant to
clause (a), and (ii) an alternative amount specified by the
15 Receivables Purchase Agreement
19
successor Servicer not to exceed 110% of the aggregate reasonable costs and
expenses incurred by such successor Servicer in connection with the performance
of its obligations as Servicer.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or any other Transaction Document, or consent to any departure by
the Seller or the Servicer therefrom, shall be effective unless in a writing
signed by the Administrator, and, in the case of any amendment, by the other
parties thereto; and then such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given. No
failure on the part of the Issuer or the Administrator to exercise, and no delay
in exercising any right hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right.
SECTION 5.2 Notices, Etc. All notices and other communications hereunder
shall, unless otherwise stated herein, be in writing (which shall include
facsimile communication) and be sent or delivered to each party hereto at its
address set forth under its name on the signature pages hereof or at such other
address as shall be designated by such party in a written notice to the other
parties hereto. Notices and communications by facsimile shall be effective when
sent (and shall be followed by hard copy sent by first class mail), and notices
and communications sent by other means shall be effective when received.
SECTION 5.3 Assignability. (a) This Agreement and the Issuer's rights and
obligations herein (including ownership of the Purchased Interest or an interest
therein) shall be assignable, in whole or in part, by the Issuer and its
successors and assigns with the prior written consent of the Seller; provided,
however, that such consent shall not be unreasonably withheld; and provided
further, that no such consent shall be required if the assignment is made to
PNC, any Affiliate of PNC (other than a director or officer of PNC), any
Purchaser or other Program Support Provider or any Person that is: (i) in the
business of issuing Notes and (ii) controlled or administered by PNC or any
Affiliate of PNC (other than a director or officer of PNC). Each assignor may,
in connection with the assignment, disclose to the applicable assignee (that
shall have agreed to be bound by Section 5.6) any information relating to the
Servicer, the Seller or the Pool Receivables furnished to such assignor by or on
behalf of the Servicer, the Seller, the Issuer or the Administrator. The
Administrator shall give prior written notice of any assignment of the Issuer's
rights and obligations (including ownership of the Purchased Interest to any
Person other than a Program Support Provider).
(b) The Issuer may at any time grant to one or more banks or
other institutions (each a "Purchaser") party to the Liquidity Agreement, or to
any other Program Support Provider, participating interests in the Purchased
Interest. In the event of any such grant by the Issuer of a participating
interest to a Purchaser or other Program Support Provider, the Issuer shall
remain responsible for the performance
16 Receivables Purchase Agreement
20
of its obligations hereunder. The Seller agrees that each Purchaser or other
Program Support Provider shall be entitled to the benefits of Sections 1.7 and
1.8.
(c) This Agreement and the rights and obligations of the
Administrator hereunder shall be assignable, in whole or in part, by the
Administrator and its successors and assigns; provided, that unless: (i) such
assignment is to an Affiliate of PNC, (ii) it becomes unlawful for PNC to serve
as the Administrator or (iii) a Termination Event exists, the Seller has
consented to such assignment, which consent shall not be unreasonably withheld
or delayed.
(d) Except as provided in Section 4.1(d), none of the Seller, JLG
or the Servicer may assign its rights or delegate its obligations hereunder or
any interest herein without the prior written consent of the Administrator,
which consent shall not be unreasonably withheld.
(e) Without limiting any other rights that may be available under
applicable law, the rights of the Issuer may be enforced through it or by its
agents.
SECTION 5.4 Costs, Expenses and Taxes. (a) In addition to the rights of
indemnification granted under Section 3.1, the Seller agrees to pay on demand
(which demand shall be accompanied by documentation thereof in reasonable
detail) all reasonable costs and expenses in connection with the preparation,
execution, delivery and administration (including periodic internal audits by
the Administrator of Pool Receivables) of this Agreement, the other Transaction
Documents and the other documents and agreements to be delivered hereunder (and
all reasonable costs and expenses in connection with any amendment, waiver or
modification of any thereof), including: (i) Attorney Costs for the
Administrator, the Issuer and their respective Affiliates and agents with
respect thereto and with respect to advising the Administrator, the Issuer and
their respective Affiliates and agents as to their rights and remedies under
this Agreement and the other Transaction Documents, and (ii) all reasonable
costs and expenses (including Attorney Costs), if any, of the Administrator, the
Issuer and their respective Affiliates and successors and permitted assigns in
connection with the enforcement of this Agreement and the other Transaction
Documents; provided, however, that the Seller shall not be responsible for such
preparation, execution, delivery and administration costs and expenses
(including the Attorney Costs) of the parties who become "Purchasers" under the
Liquidity Agreement if the Purchase Limit does not exceed $65,000,000.
(b) In addition, the Seller shall pay on demand any and all stamp
and other taxes and fees payable in connection with the execution, delivery,
filing and recording of this Agreement or the other documents or agreements to
be delivered hereunder, and agrees to save each Indemnified Party harmless from
and against any liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes and fees.
SECTION 5.5 No Proceedings; Limitation on Payments. Each of the Seller,
JLG, the Servicer, the Administrator, each assignee of the Purchased Interest or
any interest therein, and each Person that
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21
enters into a commitment to purchase the Purchased Interest or interests
therein, hereby covenants and agrees that it will not institute against, or join
any other Person in instituting against, the Issuer any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, for one year
and one day after the latest maturing Note issued by the Issuer is paid in full.
The provision of this Section 5.5 shall survive any termination of this
Agreement.
SECTION 5.6 Confidentiality. Unless otherwise required by applicable law
or the terms of any material credit agreement to which the Seller is a party,
each of the Seller and the Servicer agrees to maintain the confidentiality of
this Agreement and the other Transaction Documents (and all drafts thereof) in
communications with third parties and otherwise; provided, that this Agreement
may be disclosed to: (a) third parties to the extent such disclosure is made
pursuant to a written agreement of confidentiality in form and substance
reasonably satisfactory to the Administrator, and (b) the Seller's legal counsel
and auditors if they agree to hold it confidential. Unless otherwise required by
applicable law, each of the Administrator and the Issuer agrees to maintain the
confidentiality of non-public financial information regarding JLG and its
Subsidiaries and Affiliates; provided, that such information may be disclosed
to: (i) third parties to the extent such disclosure is made pursuant to a
written agreement of confidentiality in form and substance reasonably
satisfactory to JLG, (ii) legal counsel and auditors of the Issuer or the
Administrator if they agree to hold it confidential, (iii) the rating agencies
rating the Notes to the extent such information relates to the Receivables Pool
or the transactions contemplated by this Agreement, or if not so related, upon
obtaining the prior consent of JLG (such consent not to be unreasonably
withheld), (iv) any Program Support Provider or potential Program Support
Provider (if they agree to hold it confidential) to the extent such information
relates to the Receivables Pool or the transactions contemplated by this
Agreement, or if not so related, upon obtaining the prior consent of JLG (such
consent not to be unreasonably withheld), (v) any placement agent placing the
Notes and (vi) any regulatory authorities having jurisdiction over PNC, the
Issuer, any Program Support Provider or any Purchaser.
SECTION 5.7 GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF A SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT
OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK; AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF THE PARTIES HERETO CONSENTS, FOR
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22
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES
HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
SERVICE MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
SECTION 5.8 Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which, when so executed, shall be deemed to
be an original, and all of which, when taken together, shall constitute one and
the same agreement.
SECTION 5.9 Survival of Termination. The provisions of Sections 1.7, 1.8,
3.1, 3.2, 5.4, 5.5, 5.6, 5.7, 5.10 and 5.13 shall survive any termination of
this Agreement.
SECTION 5.10 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH OF THE PARTIES HERETO
AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO
FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
THAT SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
SECTION 5.11 Entire Agreement. This Agreement and the other Transaction
Documents embody the entire agreement and understanding between the parties
hereto, and supersede all prior or contemporaneous agreements and understandings
of such Persons, verbal or written, relating to the subject matter hereof and
thereof, except for any prior arrangements made with respect to the payment by
the Issuer of (or any indemnification for) any fees, costs or expenses payable
to or incurred (or to be incurred) by or on behalf of the Seller, the Servicer
and the Administrator.
19 Receivables Purchase Agreement
23
SECTION 5.12 Headings. The captions and headings of this Agreement and
any Exhibit, Schedule or Annex hereto are for convenience of reference only and
shall not affect the interpretation hereof or thereof.
SECTION 5.13 Issuer's Liabilities. The obligations of the Issuer under
the Transaction Documents are solely the corporate obligations of the Issuer. No
recourse shall be had for any obligation or claim arising out of or based upon
any Transaction Document against any stockholder, employee, officer, director or
incorporator of the Issuer; provided, however, that this Section shall not
relieve any such Person of any liability it might otherwise have for its own
gross negligence or willful misconduct.
SECTION 5.14 Administrative Errors. The parties hereto acknowledge that
administrative errors or mistakes may be made by the Servicer or any Originator
in the performance of its duties hereunder or under the Sale Agreement or other
Transaction Documents. Notwithstanding any other provision of any Transaction
Document, no such administrative error or mistake shall constitute any
Termination Event or Unmatured Termination Event if such error or mistake shall
not have a Material Adverse Effect and shall be corrected on or prior to the
later of (i) 2 Business Days after Servicer has notice thereof, or (ii) the next
Monthly Settlement Date after Servicer has notice thereof.
[Remainder of Page Intentionally Left Blank]
20 Receivables Purchase Agreement
24
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
FULTON FUNDING CORPORATION, as the
Seller
By:
-----------------------------------
Name:
Title:
Address: One JLG Drive
McConnellsburg, PA 17233
Attention: Thomas D. Singer
Telephone: (717) 485-5161
Facsimile: (717) 485-6462
JLG INDUSTRIES, INC., as the Servicer
By:
-----------------------------------
Name:
Title:
Address: One JLG Drive
McConnellsburg, PA 17233
Attention: Thomas D. Singer
Telephone: (717) 485-5161
Facsimile: (717) 485-6462
S-1 Receivables Purchase Agreement
25
MARKET STREET FUNDING
CORPORATION, as the Issuer
By:
-----------------------------------
Name:
Title:
Address: c/o AMACAR Group, LLC
6525 Morrison Boulevard, Suite 318
Charlotte, North Carolina 28211
Attention: Douglas K. Johnson
Telephone: (704) 365-0569
Facsimile: (704) 365-1362
With a copy to:
PNC Bank, National Association
Address: One PNC Plaza
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Attention: John Smathers
Telephone: (412) 762-6440
Facsimile: (412) 762-9184
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By:
-----------------------------------
Name:
Title:
Address: One PNC Plaza
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Attention: John Smathers
Telephone: (412) 762-6440
Facsimile: (412) 762-9184
S-2 Receivables Purchase Agreement
26
Exhibit I
DEFINITIONS
As used in the Agreement (including its Exhibits, Schedules and Annexes),
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined).
Unless otherwise indicated, all Section, Annex, Exhibit and Schedule references
in this Exhibit are to Sections of and Annexes, Exhibits and Schedules to the
Agreement.
"Accounting Month" means an accounting month of JLG as set forth in
Schedule IV to the Agreement.
"Administration Account" means the account (account number 1002422076) of
the Administrator maintained at the office of PNC at One PNC Plaza, 249 Fifth
Avenue, Pittsburgh, Pennsylvania 15222- 2707, or such other account as may be so
designated in writing by the Administrator to the Servicer.
"Administrator" has the meaning set forth in the preamble to the
Agreement.
"Adverse Claim" means a lien, security interest or other charge or
encumbrance, or any other type of preferential arrangement; it being understood
that any thereof in favor of, or assigned to, the Issuer or the Administrator
(for the benefit of the Issuer) shall not constitute an Adverse Claim.
"Affected Person" has the meaning set forth in Section 1.7 of the
Agreement.
"Affiliate" means, as to any Person: (a) any Person that, directly or
indirectly, is in control of, is controlled by or is under common control with
such Person, or (b) who is a director or officer: (i) of such Person or (ii) of
any Person described in clause (a), except that, with respect to the Issuer,
Affiliate shall mean the holder(s) of its capital stock. For purposes of this
definition, control of a Person shall mean the power, direct or indirect: (x) to
vote 25% or more of the securities having ordinary voting power for the election
of directors or managers of such Person, or (y) to direct or cause the direction
of the management and policies of such Person, in either case whether by
ownership of securities, contract, proxy or otherwise.
"Agreement" has the meaning set forth in the preamble to the Agreement.
"Alternate Rate" for any Settlement Period for any Portion of Capital of
the Purchased Interest means an interest rate per annum equal to: (a) 1.25% per
annum above the Euro-Rate for such Settlement Period, or, in the sole discretion
of the Administrator, (b) the Base Rate for such Settlement Period; provided,
however, that the "Alternate Rate" for any day while a Termination Event exists
shall be an interest rate equal to 2.00% per annum above the Base Rate in effect
on such day.
Exhibit I-1
Receivables Purchase Agreement
27
"Attorney Costs" means and includes all reasonable fees and disbursements
of any law firm or other external counsel.
"Bankruptcy Code" means the United States Bankruptcy Reform Act of 1978
(11 U.S.C. Section 101, et seq.), as amended from time to time.
"Base Rate" means, for any day, a fluctuating interest rate per annum as
shall be in effect from time to time, which rate shall be at all times equal to
the higher of:
(a) the rate of interest in effect for such day as publicly
announced from time to time by PNC in Pittsburgh, Pennsylvania as its "prime
rate." Such "prime rate" is set by PNC based upon various factors, including
PNC's costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be priced at,
above or below such announced rate, and
(b) 0.50% per annum above the latest Federal Funds Rate.
"BBA" means the British Bankers' Association.
"Benefit Plan" means any employee benefit pension plan as defined in
Section 3(2) of ERISA in respect of which the Seller, any Originator, JLG or any
ERISA Affiliate is, or at any time during the immediately preceding six years
was, an "employer" as defined in Section 3(5) of ERISA.
"Business Day" means any day (other than a Saturday or Sunday) on which:
(a) banks are not authorized or required to close in New York City, New York or
Pittsburgh, Pennsylvania, and (b) if this definition of "Business Day" is
utilized in connection with the Euro-Rate, dealings are carried out in the
London interbank market.
"Capital" means the amount paid to the Seller in respect of the Purchased
Interest by the Issuer pursuant to the Agreement, as the same may be reduced
from time to time by Collections distributed and applied on account of such
Capital pursuant to Section 1.4(d) of the Agreement; provided, that if such
Capital shall have been reduced by any distribution, and thereafter all or a
portion of such distribution is rescinded or must otherwise be returned for any
reason, such Capital shall be increased by the amount of such rescinded or
returned distribution as though it had not been made.
"Change in Control" means that JLG ceases to own, directly or indirectly,
100% of the capital stock of the Seller free and clear of all Adverse Claims.
"Closing Date" means June 30, 2000.
Exhibit I-2
Receivables Purchase Agreement
28
"Collections" means, with respect to any Pool Receivable: (a) all funds
that are received by an Originator, JLG, Seller or the Servicer 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 or any other Person directly or indirectly liable for the
payment of such Pool Receivable and available to be applied thereon), (b) all
Collections deemed to have been received pursuant to Section 1.4(e) of the
Agreement and (c) all other proceeds of such Pool Receivable.
"Company Note" has the meaning set forth in Section 3.1 of the Purchase
and Sale Agreement.
"Concentration Percentage" means: (a) for any Group A Obligor, 24%, (b)
for any Group B Obligor, 24%, (c) for any Group C Obligor, 12% and (d) for any
Group D Obligor, 6%.
"Concentration Reserve" means, at any time: (a) the aggregate Capital at
such time multiplied by (b)(i) the Concentration Reserve Percentage, divided by
(ii) 100%, minus the Concentration Reserve Percentage.
"Concentration Reserve Percentage" means, at any time, the largest of:
(a) the sum of four largest Group D Obligor Percentages, (b) the sum of the two
largest Group C Obligor Percentages, (c) the largest Group B Obligor Percentage
or (d) the largest Group A Obligor Percentage.
"Contract" means, with respect to any Receivable, any and all contracts,
instruments, agreements, leases, invoices, notes or other writings pursuant to
which such Receivable arises or that evidence such Receivable or under which an
Obligor becomes or is obligated to make payment in respect of such Receivable.
"Contributed Value", with respect to any Receivable contributed by JLG
pursuant to Section 1.6 of the Sale Agreement, the Outstanding Balance of such
Receivable.
"CP Rate" for any Settlement Period for any Portion of Capital means a
rate calculated by the Administrator equal to: (a) the rate (or if more than one
rate, the weighted average of the rates) at which Notes of the Issuer on each
day during such period have been outstanding; provided, that if such rate(s) is
a discount rate(s), then the CP Rate shall be the rate (or if more than one
rate, the weighted average of the rates) resulting from converting such discount
rate(s) to an interest-bearing equivalent rate plus (b) the commissions and
charges charged by such placement agent or commercial paper dealer with respect
to such Notes, expressed as a percentage of the face amount of such Notes and
converted to an interest- bearing equivalent rate per annum. Notwithstanding the
foregoing, the "CP Rate" for any day while a Termination Event exists shall be
an interest rate equal to 2% above the Base Rate in effect on such day.
Exhibit I-3
Receivables Purchase Agreement
29
"Credit and Collection Policy" means, as the context may require, those
receivables credit and collection policies and practices of the Originators in
effect on the date of the Agreement and described in Schedule I to the
Agreement, as modified in compliance with the Agreement.
"Cut-off Date" has the meaning set forth in the Sale Agreement.
"Days' Sales Outstanding" means, for any Accounting Month, an amount
computed as of the last day of such Accounting Month equal to: (a) the average
of the Outstanding Balance of all Pool Receivables as of the last day of each of
the three most recent Accounting Months ended on the last day of such Accounting
Month divided by (b)(i) the aggregate new Receivables generated by the
Originators during the three Accounting Months ended on or before the last day
of such Accounting Month divided by (ii) 90.
"Debt" means: (a) indebtedness for borrowed money, (b) obligations
evidenced by bonds, debentures, notes or other similar instruments, (c)
obligations to pay the deferred purchase price of property or services, (d)
obligations as lessee under leases that shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases, and (e) obligations under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (a) through (d).
"Default Ratio" means the ratio (expressed as a percentage and rounded to
the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of the
last day of each Accounting Month by dividing: (a) the aggregate Outstanding
Balance of all Pool Receivables that became Defaulted Receivables during such
Accounting Month, by (b) the aggregate new Receivables generated by the
Originators during the month that is four Accounting Months before such month.
"Defaulted Receivable" means a Receivable:
(a) as to which any payment, or part thereof, remains unpaid for
more than 90 days from the original due date for such payment, or
(b) without duplication (i) as to which an Event of Bankruptcy
shall have occurred with respect to the Obligor thereof or any other Person
obligated thereon or owning any Related Security with respect thereto, or (ii)
that has been written off the Seller's books as uncollectible.
"Delinquency Ratio" means the ratio (expressed as a percentage and
rounded to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed
as of the last day of each Accounting Month by dividing: (a) the aggregate
Outstanding Balance of all Pool Receivables that were Delinquent Receivables on
such day by (b) the aggregate Outstanding Balance of all Pool Receivables on
such day.
Exhibit I-4
Receivables Purchase Agreement
30
"Delinquent Receivable" means a Receivable as to which any payment, or
part thereof, remains unpaid for more than 60 days from the original due date
for such payment.
"Dilution Ratio" means the ratio (expressed as a percentage and rounded
to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward), computed as
of the last day of each Accounting Month by dividing: (a) the aggregate amount
of payments made or owed by the Seller pursuant to Section 1.4(e)(i) of the
Agreement during such Accounting Month by (b) the aggregate new Receivables
generated by the Originators during the Accounting Month that is one month prior
to such Accounting Month.
"Dilution Reserve" means, on any day, an amount equal to: (a) the Capital
at the close of business of the Servicer on such date multiplied by (b) (i) the
Dilution Reserve Percentage on such date, divided by (ii) 100% minus the
Dilution Reserve Percentage on such date.
"Dilution Reserve Percentage" means on any date, the greater of:
(a) 6%; or
(b) [(SF x ED) x ((DS - ED) + DS/ED)] x DHR;
where:
SF (Stress Factor) = 2.0
ED (Expected Dilution) = the average Dilution Ratio for the
most recent 12 consecutive
Accounting Months;
DS (Dilution Spike) = the highest Dilution Ratio for
any month during the most recent
12 consecutive Accounting Months;
DHR (Dilution Horizon Ratio) = the aggregate new Receivables
generated during the two most
recent Accounting Months divided
by the aggregate Outstanding
Balance of all Eligible
Receivables as of such date..
"Discount" means:
(a) for the Portion of Capital for any Settlement Period to the
extent the Issuer will be funding such Portion of Capital during such Settlement
Period through the issuance of Notes:
Exhibit I-5
Receivables Purchase Agreement
31
CPR x C x ED/360
(b) for the Portion of Capital for any Settlement Period to the
extent the Issuer will not be funding such Portion of Capital during such
Settlement Period through the issuance of Notes:
AR x C x ED/Year + TF
where:
AR = the Alternate Rate for the Portion of Capital for such
Settlement Period,
C = the Portion of Capital during such Settlement Period,
CPR = the CP Rate for the Portion of Capital for such
Settlement Period,
ED = the actual number of days during such Settlement
Period,
Year = if such Portion of Capital is funded based upon: (i)
the Euro-Rate, 360 days, and (ii) the Base Rate, 365
or 366 days, as applicable, and
TF = the Termination Fee, if any, for the Portion of Capital
for such Settlement Period;
provided, that no provision of the Agreement shall require the payment or permit
the collection of Discount in excess of the maximum permitted by applicable law;
and provided further, that Discount for the Portion of Capital shall not be
considered paid by any distribution to the extent that at any time all or a
portion of such distribution is rescinded or must otherwise be returned for any
reason.
"Eligible Obligor" means any Obligor that is (i) a United States or
Canadian resident, (ii) not a government or a governmental subdivision,
affiliate or agency, (iii) not Sunbelt Rentals, Inc., and (iv) not an Affiliate
of JLG.
"Eligible Receivable" means, at any time, a Pool Receivable:
(a) the Obligor of which is an Eligible Obligor;
(b) that is denominated and payable only in U.S. dollars in the
United States;
(c) that does not have a stated maturity which is more than 30
days after the original invoice date of such Receivable; provided that a
Receivable with a stated maturity beyond 30 days but
Exhibit I-6
Receivables Purchase Agreement
32
less than 180 days will be deemed to satisfy this clause (c) if the aggregate
Outstanding Balance of such Receivable, when added to the Outstanding Balance of
all other Receivables with stated maturities of beyond 30 days but less than 180
days, do not exceed 35 % of the Outstanding Balance of all Eligible Receivables
(determined without giving effect to this proviso); provided, further, that,
notwithstanding anything provided in the first proviso, any Receivable with a
stated maturity beyond 30 days but less than 180 days will be deemed to be an
Eligible Receivable if and when the remaining term to the stated maturity of
such Receivable is 30 days or less.
(d) that arises under a duly authorized Contract for the sale and
delivery of goods or services in the ordinary course of the respective
Originator's business;
(e) that arises under a duly authorized Contract that is in full
force and effect and that is a legal, valid and binding obligation of the
related Obligor, enforceable against such Obligor in accordance with its terms;
(f) that conforms in all material respects with all applicable
laws, rulings and regulations in effect;
(g) that is not the subject of any asserted dispute, offset, hold
back defense, Adverse Claim or other claim, or to consent of the Obligor in
respect of any assignment of such Receivable;
(h) that satisfies all material requirements of the applicable
Credit and Collection Policy;
(i) that has not been modified, waived or restructured since its
creation, except as permitted pursuant to Section 4.2 of the Agreement;
(j) in which the Seller owns good and marketable title, free and
clear of any Adverse Claims, and that is freely assignable by the Seller
(including without any consent of the related Obligor);
(k) for which the Issuer shall have a valid and enforceable
undivided percentage ownership or security interest, to the extent of the
Purchased Interest, and a valid and enforceable first priority perfected
security interest therein and in the Related Security and Collections with
respect thereto, in each case free and clear of any Adverse Claim;
(l) that constitutes an account as defined in the UCC, and that
is not evidenced by instruments or chattel paper;
(m) that is neither a Defaulted Receivable nor a Delinquent
Receivable;
Exhibit I-7
Receivables Purchase Agreement
33
(n) for which neither the Originator thereof, the Seller nor the
Servicer has established any offset arrangements with the related Obligor;
(o) for which Defaulted Receivables of the related Obligor do not
exceed 25% of the Outstanding Balance of all such Obligor's Receivables; and
(p) that represents amounts earned and payable by the Obligor
that are not subject to the performance of additional services by the Originator
thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute of similar import, together
with the regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
"ERISA Affiliate" means: (a) any corporation that is a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the
Internal Revenue Code) as the Seller, the Originators or JLG, (b) a trade or
business (whether or not incorporated) under common control (within the meaning
of Section 414(c) of the Internal Revenue Code) with the Seller, the Originators
or JLG, or (c) a member of the same affiliated service group (within the meaning
of Section 414(m) of the Internal Revenue Code) as the Seller, the Originators,
any corporation described in clause (a) or any trade or business described in
clause (b).
"Euro-Rate" means with respect to any Settlement Period the interest rate
per annum determined by the Administrator by dividing (the resulting quotient
rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the
rate of interest determined by the Administrator in accordance with its usual
procedures (which determination shall be conclusive absent manifest error) to be
the average of the London interbank market offered rates for U.S. dollars quoted
by the British Bankers' Association ("BBA") as set forth on Dow Jones Markets
Service (formerly known as Telerate) (or appropriate successor or, if British
Bankers' Association or its successor ceases to provide display page 3750 (or
such other display page on the Dow Jones Markets Service system as may replace
display page 3750) at or about 11:00 a.m. (London time) on the Business Day
which is two (2) Business Days prior to the fist day of such Settlement Period
for an amount comparable to the Portion of Capital to be funded at the Alternate
Rate and based upon the Euro-Rate during such Settlement Period by (ii) a number
equal to 1.00 minus the Euro-Rate Reserve Percentage. The Euro-Rate may also be
expressed by the following formula:
Average of London interbank offered rates quoted
by BBA as shown on Dow Jones Markets Service
display page 3750 or appropriate successor
Euro-Rate =
------------------------------------------------
1.00 - Euro-Rate Reserve Percentage
Exhibit I-8
Receivables Purchase Agreement
34
where "Euro-Rate Reserve Percentage" means, the maximum effective percentage in
effect on such day as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the reserve requirements
(including without limitation, supplemental, marginal, and emergency reserve
requirements) with respect to eurocurrency funding (currently referred to as
"Eurocurrency Liabilities"). The Euro-Rate shall be adjusted with respect to any
Portion of Capital funded at the Alternate Rate and based upon the Euro-Rate
that is outstanding on the effective date of any change in the Euro-Rate Reserve
Percentage as of such effective date. The Administrator shall give prompt notice
to the Seller of the Euro- Rate as determined or adjusted in accordance herewith
(which determination shall be conclusive absent manifest error).
"Event of Bankruptcy" means (a) any case, action or proceeding before any
court or other governmental authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors or (b) any general assignment for the benefit of creditors of a Person
composition, marshaling of assets for creditors of a Person, or other similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; in each of cases (a) and (b) undertaken under U.S. Federal, state
or foreign law, including the U.S. Bankruptcy Code.
"Excess Concentration" means the sum of the amounts by which the
Outstanding Balance of Eligible Receivables of each Obligor then in the
Receivables Pool exceeds an amount equal to: (a) the Concentration Percentage
for such Obligor multiplied by (b) the Outstanding Balance of all Eligible
Receivables then in the Receivables Pool.
"Excess Canadian Concentration" means the amount, if any, by which the
Outstanding Balance of all Receivables owed by Canadian Obligors exceeds the
lower of: (i) 20% of the aggregate Outstanding Balance of all Eligible
Receivable and (ii) $12,000,000.
"Facility Termination Date" means the earliest to occur of: (a) the
Scheduled Maturity Date, (b) the date determined pursuant to Section 2.2 of the
Agreement, (c) the date the Purchase Limit reduces to zero pursuant to Section
1.1(b) of the Agreement, (d) the date that the commitments of the Purchasers
terminate under the Liquidity Agreement, and (e) the Seller shall fail to cause
the amendment or modification of any Transaction Document or related opinion as
required by Moody's or Standard and Poor's, and such failure shall continue for
30 days after such amendment is initial requested..
"Federal Funds Rate" means, for any day, the per annum rate set forth in
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)." If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
Quotations") for such day under the caption "Federal Funds
Exhibit I-9
Receivables Purchase Agreement
35
Effective Rate." If on any relevant day the appropriate rate is not yet
published in either H.15(519) or the Composite 3:30 p.m. Quotations, the rate
for such day will be the arithmetic mean as determined by the Administrator of
the rates for the last transaction in overnight Federal funds arranged before
9:00 a.m. (New York time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Administrator.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any entity succeeding to any of its principal functions.
"Fee Letter" has the meaning set forth in Section 1.5 of the Agreement.
"Fiscal Quarter", with respect to each of the Seller and JLG, means any
period of three consecutive calendar months in any Fiscal Year, ending on
October 31, January 31, April 31 and July 31, respectively.
"Fiscal Year", with respect to each of the Seller and JLG, means any
period of twelve consecutive calendar months ending on July 31.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any body or entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including any court, and any Person owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Group A Obligor" means any Obligor with a short-term rating of at least
"A-1" by Standard & Poor's and "P-1" by Moody's; or if such Obligor does not
have a short-term rating, a rating of "A+" or better by Standard & Poor's and
"A1"or better by Moody's on its long-term senior unsecured and uncredit-enhanced
debt securities.
"Group A Obligor Percentage" means, at any time, for each Group A
Obligor, the percentage equivalent of: (a) the aggregate Outstanding Balance of
the Eligible Receivables of such Group A Obligor less any Excess Concentrations
of such Obligor, divided by (b) the aggregate Outstanding Balance of all
Eligible Receivables at such time.
"Group B Obligor" means an Obligor, not a Group A Obligor, with a
short-term rating of at least "A-2" by Standard & Poor's and "P-2" by Moody's,
or if such Obligor does not have a short-term rating, a rating of "BBB+" to "A"
by Standard & Poor's and "Baa1" to "A2" by Moody's on its long-term senior
unsecured and uncredit-enhanced debt securities.
"Group B Obligor Percentage" means, at any time, for each Group B
Obligor, the percentage equivalent of: (a) the aggregate Outstanding Balance of
the Eligible Receivables of such Group B Obligor
Exhibit I-10
Receivables Purchase Agreement
36
less any Excess Concentrations of such Obligor, divided by (b) the aggregate
Outstanding Balance of all Eligible Receivables at such time.
"Group C Obligor" means an Obligor, not a Group A Obligor or a Group B
Obligor, with a short- term rating of at least "A-3" by Standard & Poor's or
"P-3" by Moody's, or if such Obligor does not have a short-term rating, "BBB-"
to "BBB" by Standard & Poor's and "Baa3" to "Baa2" by Moody's on its long-term
senior unsecured and uncredit-enhanced debt securities.
"Group C Obligor Percentage" means, at any time, for each Group C
Obligor, the percentage equivalent of: (a) the aggregate Outstanding Balance of
the Eligible Receivables of such Group C Obligor less any Excess Concentrations
of such Obligor, divided by (b) the aggregate Outstanding Balance of all
Eligible Receivables at such time.
"Group D Obligor" means any Obligor that is not a Group A Obligor, Group
B Obligor or Group C Obligor.
"Group D Obligor Percentage" means, at any time, for each Group D
Obligor: (a) the aggregate Outstanding Balance of the Eligible Receivables of
such Group D Obligor less any Excess Concentrations of such Obligor, divided by
(b) the aggregate Outstanding Balance of all Eligible Receivables at such time.
"Indemnified Amounts" has the meaning set forth in Section 3.1 of the
Agreement.
"Indemnified Party" has the meaning set forth in Section 3.1 of the
Agreement.
"Independent Director" has the meaning set forth in paragraph 3(c) of
Annex D to the Agreement.
"Information Package" means a report, in substantially the form of Annex
A to the Agreement, furnished to the Administrator pursuant to the Agreement.
"Insolvency Proceeding" means: (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshaling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors, in each case undertaken under U.S. Federal, state or foreign law,
including the Bankruptcy Code.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor statute of similar import, together
with the regulations thereunder, in each case as in effect from time to time.
References to sections of the Internal Revenue Code also refer to any successor
sections.
Exhibit I-11
Receivables Purchase Agreement
37
"Issuer" has the meaning set forth in the preamble to the Agreement.
"Issuer's Share" of any amount means such amount multiplied by the
Purchased Interest at the time of determination.
"JLG" means JLG Industries, Inc., a Pennsylvania corporation.
"LIBOR" means the rate of interest per annum determined by the
Administrator to be the arithmetic mean (rounded upward to the nearest 1/16th of
1%) of the rates of interest per annum notified to the Administrator by each
Reference Bank as the rate of interest at which dollar deposits in the
approximate amount of the Portion of Capital to be funded at the Euro-Rate
during such Settlement Period would be offered by major banks in the London
interbank market to such Reference Bank at its request at or about 11:00 a.m.
(London time) on the second Business Day before the commencement of such
Settlement Period.
"Liquidity Agent" means PNC in its capacity as the Liquidity Agent
pursuant to the Liquidity Agreement.
"Liquidity Agreement" means the Liquidity Asset Purchase Agreement, dated
as of even date herewith, between the purchasers from time to time party
thereto, the Issuer and PNC, as Administrator and Liquidity Agent, as the same
may be further amended, supplemented or otherwise modified from time to time.
"Lock-Box Account" means an account maintained at a bank or other
financial institution for the purpose of receiving Collections.
"Lock-Box Agreement" means an agreement, in form and substance
satisfactory to the Administrator, among the Seller, the Servicer, the Purchaser
and a Lock-Box Bank.
"Lock-Box Bank" means any of the banks or other financial institutions
holding one or more Lock- Box Accounts.
"Loss Reserve" means, on any date, an amount equal to: (a) the Capital at
the close of business of the Servicer on such date multiplied by (b)(i) the Loss
Reserve Percentage on such date divided by (ii) the result of 100% minus the
Loss Reserve Percentage on such date.
"Loss Reserve Percentage" means, on any date, the greater of:
(a) 18%; and
Exhibit I-12
Receivables Purchase Agreement
38
(b) [(LR x LHR x SF) x PTP] + [(LR x LHX x SF) x PTPX];
where:
LR (Loss Ratio) = the highest average of the Default Ratios
for any three consecutive Accounting Months
during the twelve most recent Accounting
Months;
LHR (Loss Horizon) = the aggregate new Receivables generated
during the four most recent Accounting
Months divided by the aggregate Outstanding
Balance of Eligible Receivables as of such
date;
LHX (Loss Horizon Extended Term) = the aggregate new Receivables
generated during the nine
most recent Accounting Months
divided by the aggregate
Outstanding Balance of
Eligible Receivables as of
such date; and
PTP (Payment Term Percentage) = the aggregate Outstanding
Balance of Eligible
Receivables with stated
maturity 30 days or less from
the respective original
invoice date, divided by the
aggregate Outstanding Balance
of all Eligible Receivables.
PTPX (Payment Terms
Percentage Extended) = the aggregate Outstanding Balance
of Eligible Receivables with the
stated maturity beyond 30 days from
the respective original invoice
date, divided by the aggregate
Outstanding Balance of all Eligible
Receivables
SF (Stress Factor) = 2.0.
"Material Adverse Effect" means any event or circumstance the occurrence
or existence of which will have a material adverse effect on:
(a) the assets, operations, business or financial condition of
the Seller, the Originators (on a consolidated basis) or the Servicer,
Exhibit I-13
Receivables Purchase Agreement
39
(b) the ability of the Seller, any Originator or the Servicer to
perform its obligations under the Agreement or any other Transaction Document to
which it is a party,
(c) the validity or enforceability of any other Transaction
Document, or the validity, enforceability or collectibility of a material
portion of the Pool Receivables, or
(d) the status, perfection, enforceability or priority of the
Issuer's or the Seller's interest in a material portion of the Pool Assets.
"Monthly Settlement Date" means the Fifteenth day of each calendar month
(or the next succeeding Business Day if such day is not a Business Day),
beginning July 15, 2000.
"Moody's" means Moody's Investors Service, Inc.
"Net Receivables Pool Balance" means, at any time: (a) the Outstanding
Balance of Eligible Receivables then in the Receivables Pool minus (b) the
Excess Concentration minus (c) the Excess Canadian Concentration.
"Notes" means short-term promissory notes issued, or to be issued, by the
Issuer to fund its investments in accounts receivable or other financial assets.
"Obligor" means, with respect to any Receivable, the Person obligated to
make payments pursuant to the Contract relating to such Receivable.
"Obligor Percentage" means any of the Group A Obligor Percentage, the
Group B Obligor Percentage, the Group C Obligor Percentage or the Group D
Obligor Percentage.
"Originator" has the meaning set forth in the Sale Agreement.
"Originator Assignment Certificate" means each assignment, in
substantially the form of Exhibit C to the Sale Agreement, evidencing Seller's
ownership of the Receivables generated by the respective Originator, as the same
may be amended, supplemented, amended and restated, or otherwise modified from
time to time in accordance with the Sale Agreement.
"Outstanding Balance" of any Receivable at any time means the then
outstanding principal balance thereof.
"Payment Date" has the meaning set forth in Section 2.2 of the Sale
Agreement.
Exhibit I-14
Receivables Purchase Agreement
40
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"PNC" has the meaning set forth in the preamble to the Agreement.
"Pool Assets" has the meaning set forth in Section 1.2(d) of the
Agreement.
"Pool Receivable" means a Receivable in the Receivables Pool.
"Portion of Capital" means any separate portion of Capital being funded
or maintained by the Issuer (or its successors or permitted assigns) by
reference to a particular interest rate basis. In addition, at any time when the
Capital of the Purchased Interest is not divided into two or more such portions,
"Portion of Capital" means 100% of the Capital.
"Program Support Agreement" means and includes the Liquidity Agreement
and any other agreement entered into by any Program Support Provider providing
for: (a) the issuance of one or more letters of credit for the account of the
Issuer, (b) the issuance of one or more surety bonds for which the Issuer is
obligated to reimburse the applicable Program Support Provider for any drawings
thereunder, (c) the sale by the Issuer to any Program Support Provider of the
Purchased Interest (or portions thereof) and/or (d) the making of loans and/or
other extensions of credit to the Issuer in connection with the Issuer's
Receivables-securitization program contemplated in the Agreement, together with
any letter of credit, surety bond or other instrument issued thereunder (but
excluding any discretionary advance facility provided by the Administrator).
"Program Support Provider" means and includes any Purchaser and any other
Person (other than any customer of the Issuer) now or hereafter extending credit
or having a commitment to extend credit to or for the account of, or to make
purchases from, the Issuer pursuant to any Program Support Agreement.
"Purchase and Sale Indemnified Amounts" has the meaning set forth in
Section 9.1 of the Sale Agreement.
"Purchase and Sale Indemnified Party" has the meaning set forth in
Section 9.1 of the Sale Agreement.
"Purchase and Sale Termination Date" has the meaning set forth in Section
1.4 of the Sale Agreement.
"Purchase and Sale Termination Event" has the meaning set forth in
Section 8.1 of the Sale Agreement.
Exhibit I-15
Receivables Purchase Agreement
41
"Purchase Facility" has the meaning set forth in Section 1.1 of the Sale
Agreement.
"Purchase Limit" means $65,000,000, as such amount may be reduced
pursuant to Section 1.1(b) of the Agreement.
"Purchase Price" has the meaning set forth in Section 2.2 of the Sale
Agreement.
"Purchase Report" has the meaning set forth in Section 2.1 of the Sale
Agreement.
"Purchased Interest" means, at any time, the undivided percentage
ownership interest in: (a) each and every Pool Receivable now existing or
hereafter arising, (b) all Related Security with respect to such Pool
Receivables and (c) all Collections with respect to, and other proceeds of, such
Pool Receivables and Related Security. Such undivided percentage interest shall
be computed as:
Capital + Total Reserves
----------------------------
Net Receivables Pool Balance
The Purchased Interest shall be determined from time to time pursuant to Section
1.3 of the Agreement.
"Purchaser" has the meaning set forth in Section 5.3(b) of the Agreement.
"Receivable" means any indebtedness and other obligations owed to the
Seller or any Originator by, or any right of the Seller or any Originator to
payment from or on behalf of, an Eligible Obligor, whether constituting an
account, chattel paper, instrument or general intangible, arising from the sale
of goods by an Originator to an Eligible Obligor, and includes the obligation to
pay any finance charges, fees and other charges with respect thereto.
Indebtedness and 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.
Notwithstanding anything provided above, any indebtedness and other obligation
owed to any Originator will not constitute a "Receivable" hereunder if such
indebtedness or obligation has a stated maturity beyond 180 days and is
evidenced by an instrument.
"Receivables Pool" means, at any time, all of the then outstanding
Receivables purchased or disposed of by the Seller pursuant to the Sale
Agreement prior to the Facility Termination Date.
"Reference Bank" means PNC.
"Related Rights" has the meaning set forth in Section 1.1 of the Sale
Agreement.
Exhibit I-16
Receivables Purchase Agreement
42
"Related Security" means, with respect to any Receivable:
(a) all of the Seller's and the respective Originator'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 Seller's and the respective Originator's rights,
interests and claims under 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.
"Sale Agreement" means the Purchase and Sale Agreement, dated as of even
date herewith, between the Seller and the Originators as such agreement may be
amended, amended and restated, supplemented or otherwise modified from time to
time.
"Scheduled Maturity Date" means June 27, 2003.
"Seller" has the meaning set forth in the preamble to the Agreement.
"Seller's Share" of any amount means the greater of: (a) $0 and (b) such
amount minus the Issuer's Share.
"Servicer" has the meaning set forth in the preamble to the Agreement.
"Servicing Fee" shall mean the fee referred to in Section 4.6 of the
Agreement.
"Settlement Period" means: (a) before the Facility Termination Date: (i)
initially the period commencing on the date of the initial purchase pursuant to
Section 1.2 of the Agreement (or in the case of any fees payable hereunder,
commencing on the Closing Date) and ending on (but not including) the next
Monthly Settlement Date, and (ii) thereafter, each period commencing on such
Monthly Settlement Date and ending on (but not including) the next Monthly
Settlement Date, and (b) on and after the Facility Termination Date: such period
(including a period of one day) as shall be selected from time to time by the
Exhibit I-17
Receivables Purchase Agreement
43
Administrator or, in the absence of any such selection, each period of 30 days
from the last day of the preceding Settlement Period.
"Solvent" means, with respect to any Person at any time, a condition
under which:
(a) the fair value and present fair saleable value of such
Person's total assets is, on the date of determination, greater than such
Person's total liabilities (including contingent and unliquidated liabilities)
at such time;
(b) the fair value and present fair saleable value of such
Person's assets is greater than the amount that will be required to pay such
Person's probable liability on its existing debts as they become absolute and
matured ("debts," for this purpose, includes all legal liabilities, whether
matured or unmatured, liquidated or unliquidated, absolute, fixed, or
contingent);
(c) such Person is and shall continue to be able to pay all of
its liabilities as such liabilities mature; and
(d) such Person does not have unreasonably small capital with
which to engage in its current and in its anticipated business.
For purposes of this definition:
(i) the amount of a Person's contingent or unliquidated
liabilities at any time shall be that amount which, in light of all the facts
and circumstances then existing, represents the amount which can reasonably be
expected to become an actual or matured liability;
(ii) the "fair value" of an asset shall be the amount which may
be realized within a reasonable time either through collection or sale of such
asset at its regular market value;
(iii) the "regular market value" of an asset shall be the amount
which a capable and diligent business person could obtain for such asset from an
interested buyer who is willing to Purchase such asset under ordinary selling
conditions; and
(iv) the "present fair saleable value" of an asset means the
amount which can be obtained if such asset is sold with reasonable promptness in
an arm's-length transaction in an existing and not theoretical market.
"Standard & Poor's" means Standard & Poor's, a division of The
McGraw-Hill Companies, Inc.
Exhibit I-18
Receivables Purchase Agreement
44
"Subsidiary" means, as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock of each class or
other interests having ordinary voting power (other than stock or other
interests having such power only by reason of the happening of a contingency) to
elect a majority of the Board of Directors or other managers of such entity are
at the time owned, or management of which is otherwise controlled: (a) by such
Person, (b) by one or more Subsidiaries of such Person or (c) by such Person and
one or more Subsidiaries of such Person.
"Termination Day" means: (a) each day on which the conditions set forth
in Section 2 of Exhibit II to the Agreement are not satisfied or (b) each day
that occurs on or after the Facility Termination Date.
"Termination Event" has the meaning specified in Exhibit V to the
Agreement.
"Termination Fee" means, for any Settlement Period during which a
Termination Day occurs, the amount, if any, by which: (a) the additional
Discount (calculated without taking into account any Termination Fee or any
shortened duration of such Settlement Period pursuant to the definition thereof)
that would have accrued during such Settlement Period on the reductions of
Capital relating to such Settlement Period had such reductions not been made,
exceeds (b) the income, if any, received by the Issuer from investing the
proceeds of such reductions of Capital, as determined by the Administrator,
which determination shall be binding and conclusive for all purposes, absent
manifest error.
"Total Reserves" means, at any time the sum of : (a) the Yield Reserve,
plus (b) the greater of (i) the sum of (A) the Loss Reserve plus (B) the
Dilution Reserve, and (ii) the Concentration Reserve.
"Transaction Documents" means the Agreement, the Lock-Box Agreements, the
Fee Letter, the Sale Agreement and all other certificates, instruments, UCC
financing statements, reports, notices, agreements and documents executed or
delivered under or in connection with the Agreement, in each case as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with the Agreement.
"UCC" means the Uniform Commercial Code as from time to time in effect in
the applicable jurisdiction.
"Unmatured Purchase and Sale Termination Event" means any event which,
with the giving of notice or lapse of time, or both, would become a Purchase and
Sale Termination Event.
"Unmatured Termination Event" means an event that, with the giving of
notice or lapse of time, or both, would constitute a Termination Event.
Exhibit I-19
Receivables Purchase Agreement
45
"Yield Reserve" means, on any date, an amount equal to: (a) the Capital
at the close of business of the Servicer on such date multiplied by (b)(i) the
Yield Reserve Percentage on such date divided by (ii) 100% minus the Yield
Reserve Percentage on such date.
"Yield Reserve Percentage" means, at any time:
(BR + SFR) x 1.5 x TR
------------
12
where:
BR = the Base Rate in effect at such time,
SFR = the Servicing Fee Rate; and
TR = the aggregate Outstanding Balance of Eligible
Receivables as of such time, divided by the average new
Receivables made during the most recent three
Accounting Months.
Other Terms. All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles. All
terms used in Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in such Article 9.
Unless the context otherwise requires, "or" means "and/or," and "including" (and
with correlative meaning "include" and "includes") means including without
limiting the generality of any description preceding such term.
Exhibit I-20
Receivables Purchase Agreement
46
Exhibit II
CONDITIONS OF PURCHASES
1. Conditions Precedent to Initial Purchase. The Initial Purchase under
this Agreement is subject to the following conditions precedent that the
Administrator shall have received on or before the date of such purchase, each
in form and substance (including the date thereof) satisfactory to the
Administrator:
(a) A counterpart of the Agreement and the other Transaction
Documents executed by the parties thereto.
(b) Certified copies of: (i) the resolutions of the Board of
Directors of each of the Seller, the Originators and JLG authorizing the
execution, delivery and performance by the Seller, the Originators and JLG, as
the case may be, of the Agreement and the other Transaction Documents to which
it is a party; (ii) all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to the Agreement and the other
Transaction Documents and (iii) the certificate of incorporation and by-laws of
the Seller and of JLG.
(c) A certificate of the Secretary or Assistant Secretary of the
Seller, the Originators and JLG certifying the names and true signatures of its
officers who are authorized to sign the Agreement and the other Transaction
Documents. Until the Administrator receives a subsequent incumbency certificate
from the Seller, an Originator or JLG, as the case may be, the Administrator
shall be entitled to rely on the last such certificate delivered to it by the
Seller, such Originator or JLG, as the case may be.
(d) Acknowledgment copies, or time stamped receipt copies, of
proper financing statements, duly filed on or before the date of such initial
purchase under the UCC of all jurisdictions that the Administrator may deem
necessary or desirable in order to perfect the interests of the Seller, JLG and
the Issuer contemplated by the Agreement and the Sale Agreement.
(e) Acknowledgment copies, or time-stamped receipt copies, of
proper financing statements, if any, necessary to release all security interests
and other rights of any Person in the Receivables, Contracts or Related Security
previously granted by the Originators, JLG or the Seller.
(f) Completed UCC search reports, dated on or shortly before the
date of the initial purchase hereunder, listing the financing statements filed
in all applicable jurisdictions referred to in subsection (e) above that name
the appropriate Originator or the Seller as debtor, together with copies of such
other financing statements, and similar search reports with respect to judgment
liens, federal tax liens
Exhibit II-1
Receivables Purchase Agreement
47
and liens of the Pension Benefit Guaranty Corporation in such jurisdictions, as
the Administrator may request, showing no Adverse Claims on any Pool Assets.
(g) Favorable opinions, in form and substance reasonably
satisfactory to the Administrator, of: (i) Covington & Burling, counsel for the
Seller, the Originators, and the Servicer, and (ii) Thomas D. Singer, General
Counsel and Assistant Secretary of JLG.
(h) Satisfactory results of a review and audit (performed by
representatives of the Administrator) of the Servicer's collection, operating
and reporting systems, the Credit and Collection Policy of the Originators,
historical receivables data and accounts, including satisfactory results of a
review of the Servicer's operating location(s) and satisfactory review and
approval of the Eligible Receivables in existence on the date of the initial
purchase under the Agreement.
(i) A pro forma Information Package representing the performance
of the Receivables Pool for the Accounting Month before closing.
(j) Evidence of payment by the Seller of all accrued and unpaid
fees (including those contemplated by the Fee Letter), costs and expenses to the
extent then due and payable on the date thereof, including any such costs, fees
and expenses arising under or referenced in Section 5.4 of the Agreement and the
Fee Letter.
(k) The Fee Letter duly executed by the Seller and the Servicer.
(l) Good standing certificates with respect to each of the
Seller, the Originators and the Servicer issued by the Secretary of State (or
similar official) of the state of each such Person's organization or formation
and principal place of business.
(m) The Liquidity Agreement and all other Transaction Documents
duly executed by the parties thereto.
(n) A computer file containing all information with respect to
the Receivables as the Administrator or the Issuer may reasonably request.
(o) Such other approvals, opinions or documents as the
Administrator or the Issuer may reasonably request.
(p) JLG has made capital contributions to the Seller.
Exhibit II-2
Receivables Purchase Agreement
48
2. Conditions Precedent to All Purchases and Reinvestments. Each
purchase (except as to clause (a), including the initial purchase) and each
reinvestment shall be subject to the further conditions precedent that:
(a) in the case of each purchase, the Servicer shall have
delivered to the Administrator on or before such purchase, in form and substance
satisfactory to the Administrator, a completed pro forma Information Package to
reflect the level of Capital and related reserves after such subsequent
purchase; and
(b) on the date of such purchase or reinvestment the following
statements shall be true (and acceptance of the proceeds of such purchase or
reinvestment shall be deemed a representation and warranty by the Seller that
such statements are then true):
(i) the representations and warranties contained in Exhibit III
to the Agreement are true and correct in all material respects on and as
of the date of such purchase or reinvestment as though made on and as of
such date; and
(ii) no event has occurred and is continuing, or would result
from such purchase or reinvestment, that constitutes a Termination Event
or an Unmatured Termination Event.
Exhibit II-3
Receivables Purchase Agreement
49
Exhibit III
REPRESENTATIONS AND WARRANTIES
1. Representations and Warranties of the Seller. The Seller represents
and warrants as follows:
(a) The Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and is
duly qualified to do business and is in good standing as a foreign corporation
in every jurisdiction where the nature of its business requires it to be so
qualified, except where the failure to be so qualified would not have a Material
Adverse Effect.
(b) The execution, delivery and performance by the Seller of the
Agreement and the other Transaction Documents to which it is a party, including
its use of the proceeds of purchases and reinvestments: (i) are within its
corporate powers; (ii) have been duly authorized by all necessary corporate
action; (iii) do not contravene or result in a default under or conflict with:
(A) its charter or by-laws, (B) any law, rule or regulation applicable to it,
(C) any indenture, loan agreement, mortgage, deed of trust or other material
agreement or instrument to which it is a party or by which it is bound, or (D)
any order, writ, judgment, award, injunction or decree binding on or affecting
it or any of its property; and (iv) do not result in or require the creation of
any Adverse Claim upon or with respect to any of its properties. The Agreement
and the other Transaction Documents to which it is a party have been duly
executed and delivered by the Seller.
(c) No authorization, approval or other action by, and no notice
to or filing with, any Governmental Authority or other Person is required for
its due execution, delivery and performance by the Seller of the Agreement or
any other Transaction Document to which it is a party, other than the Uniform
Commercial Code filings referred to in Exhibit II to the Agreement, all of which
shall have been filed on or before the date of the first purchase hereunder.
(d) Each of the Agreement and the other Transaction Documents to
which the Seller is a party constitutes its legal, valid and binding obligation
enforceable against the Seller in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws from time to time in effect affecting the enforcement of creditors'
rights generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(e) There is no pending or, to Seller's best knowledge,
threatened action or proceeding affecting Seller or any of its properties before
any Governmental Authority or arbitrator.
Exhibit III-1
Receivables Purchase Agreement
50
(f) No proceeds of any purchase or reinvestment will be used to
acquire any equity security of a class that is registered pursuant to Section 12
of the Securities Exchange Act of 1934 in violation of Regulations T, U or X of
the Federal Reserve Board.
(g) The Seller is the legal and beneficial owner of the Pool
Receivables and Related Security, free and clear of any Adverse Claim. Upon each
purchase or reinvestment, the Issuer shall acquire a valid and enforceable
perfected undivided percentage ownership or security interest, to the extent of
the Purchased Interest, in each Pool Receivable then existing or thereafter
arising and in the Related Security, Collections and other proceeds with respect
thereto, free and clear of any Adverse Claim. The Agreement creates a security
interest in favor of the Issuer in the Pool Assets, and the Issuer has a first
priority perfected security interest in the Pool Assets, free and clear of any
Adverse Claims. No effective financing statement or other instrument similar in
effect covering any Pool Asset is on file in any recording office, except those
filed in favor of the Seller pursuant to the Sale Agreement and the Issuer
relating to the Agreement.
(h) Each Information Package (if prepared by the Seller or one of
its Affiliates, or to the extent that information contained therein is supplied
by the Seller or an Affiliate), information, exhibit, financial statement,
document, book, record or report furnished or to be furnished at any time by or
on behalf of the Seller to the Administrator in connection with the Agreement or
any other Transaction Document to which it is a party is or will be complete and
accurate in all material respects as of its date or (except as otherwise
disclosed to the Administrator at such time) as of the date so furnished,
(i) The Seller's principal place of business and chief executive
office (as such terms are used in the UCC) and the office where it keeps its
records concerning the Receivables are located at the address referred to in
Sections 1(b) and 2(b) of Exhibit IV to the Agreement.
(j) The names and addresses of all the Lock-Box Banks, together
with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are
specified in Schedule II to the Agreement (or at such other Lock-Box Banks
and/or with such other Lock-Box Accounts as have been notified to the
Administrator in accordance with the Agreement) and all Lock-Box Accounts are
subject to Lock-Box Agreements.
(k) The Seller is not in violation of any order of any court,
arbitrator or Governmental Authority.
(l) Neither the Seller nor any of its Affiliates has any direct
or indirect ownership or other financial interest in the Issuer.
(m) No proceeds of any purchase or reinvestment will be used for
any purpose that violates any applicable law, rule or regulation, including
Regulations T, U or X of the Federal Reserve Board.
Exhibit III-2
Receivables Purchase Agreement
51
(n) Each Pool Receivable included as an Eligible Receivable in
the calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(o) No event has occurred and is continuing, or would result from
a purchase in respect of, or reinvestment in respect of, the Purchased Interest
or from the application of the proceeds therefrom, that constitutes a
Termination Event or an Unmatured Termination Event.
(p) The Seller has accounted for each sale of undivided
percentage ownership interests in Receivables in its books and financial
statements as sales, consistent with generally accepted accounting principles.
(q) The Seller has complied in all material respects with the
Credit and Collection Policies of the Originators with regard to each Receivable
originated by the Originators.
(r) The Seller has complied in all material respects with all of
the terms, covenants and agreements contained in the Agreement and the other
Transaction Documents that are applicable to it.
(s) The Seller's complete corporate name is set forth in the
preamble to the Agreement, and it does not use and has not during the last six
years used any other corporate name, trade name, doing- business name or
fictitious name, except as set forth on Schedule III to the Agreement and except
for names first used after the date of the Agreement and set forth in a notice
delivered to the Administrator pursuant to Section 1(l)(iv) of Exhibit IV to the
Agreement.
(t) The Seller is not an "investment company," or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended. In addition, the Seller is not a "holding
company," a "subsidiary company" of a "holding company" or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
2. Representations and Warranties of JLG (including in its capacity as
the Servicer). JLG, individually and in its capacity as the Servicer, represents
and warrants as follows:
(a) JLG is a corporation duly formed, validly existing and in
good standing under the laws of the Commonwealth of Pennsylvania, and is duly
qualified to do business and is in good standing as a foreign corporation in
every jurisdiction where the nature of its business requires it to be so
qualified, except where the failure to be so qualified would not have a Material
Adverse Effect.
(b) The execution, delivery and performance by JLG of the
Agreement and the other Transaction Documents to which it is a party, including
the Servicer's use of the proceeds of purchases and reinvestments: (i) are
within its powers as a corporation; (ii) have been duly authorized by all
necessary
Exhibit III-3
Receivables Purchase Agreement
52
corporate action; (iii) do not contravene or result in a default under or
conflict with: (A) its articles of incorporation or bylaws, (B) any law, rule or
regulation applicable to it, (C) any material indenture, loan agreement,
mortgage, deed of trust or other material agreement or instrument to which it is
a party or by which it is bound, or (D) any order, writ, judgment, award,
injunction or decree binding on or affecting it or any of its property; and (iv)
do not result in or require the creation of any Adverse Claim upon or with
respect to any of its properties. The Agreement and the other Transaction
Documents to which JLG is a party have been duly executed and delivered by JLG.
(c) No authorization, approval or other action by, and no notice
to or filing with any Governmental Authority or other Person, is required for
the due execution, delivery and performance by JLG of the Agreement or any other
Transaction Document to which it is a party.
(d) Each of the Agreement and the other Transaction Documents to
which JLG is a party constitutes the legal, valid and binding obligation of JLG
enforceable against JLG in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization or other similar laws
from time to time in effect affecting the enforcement of creditors' rights
generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(e) The balance sheets of JLG and its consolidated Subsidiaries
as at July 31, 1999 and the related statements of income and retained earnings
for the fiscal year then ended, copies of which have been furnished to the
Administrator, fairly present the financial condition of JLG and its
consolidated Subsidiaries as at such date and the results of the operations of
JLG and its Subsidiaries for the period ended on such date, all in accordance
with generally accepted accounting principles consistently applied, and since
July 31, 1999 there has been no event or circumstances which have had a Material
Adverse Effect.
(f) Except as disclosed in the most recent audited financial
statements of JLG furnished to the Administrator, there is no pending or, to its
best knowledge, threatened action or proceeding affecting it or any of its
Subsidiaries before any Governmental Authority or arbitrator that could have a
Material Adverse Effect.
(g) No proceeds of any purchase or reinvestment will be used to
acquire any equity security of a class that is registered pursuant to Section 12
of the Securities Exchange Act of 1934 in violation of Regulation T, U or X of
the Federal Reserve Board.
(h) Each Information Package (if prepared by JLG or one of its
Affiliates, or to the extent that information contained therein is supplied by
JLG or an Affiliate), information, exhibit, financial statement, document, book,
record or report furnished or to be furnished at any time by or on behalf of the
Servicer to the Administrator in connection with the Agreement is or will be
complete and accurate in all
Exhibit III-4
Receivables Purchase Agreement
53
material respects as of its date or (except as otherwise disclosed to the
Administrator at such time) as of the date so furnished.
(i) The principal place of business and chief executive office
(as such terms are used in the UCC) of JLG and the office where it keeps its
records concerning the Receivables are located at the address referred to in
Section 2(b) of Exhibit IV to the Agreement.
(j) JLG is not in violation of any order of any court, arbitrator
or Governmental Authority, which could have a Material Adverse Effect.
(k) Neither JLG nor any of its Affiliates has any direct or
indirect ownership or other financial interest in the Issuer.
(l) The Servicer has complied in all material respects with the
Credit and Collection Policy of the Originators with regard to each Receivable
originated by the Originators.
(m) JLG has complied in all material respects with all of the
terms, covenants and agreements contained in the Agreement and the other
Transaction Documents that are applicable to it.
(n) JLG is not an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940, as amended. In addition, JLG is not a "holding company," a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
Exhibit III-5
Receivables Purchase Agreement
54
EXHIBIT IV
COVENANTS
1. Covenants of the Seller. Until the latest of the Facility Termination
Date, the date on which no Capital of or Discount in respect of the Purchased
Interest shall be outstanding or the date all other amounts owed by the Seller
under the Agreement to the Issuer, the Administrator and any other Indemnified
Party or Affected Person shall be paid in full:
(a) Compliance with Laws, Etc. The Seller shall comply in all
material respects with all applicable laws, rules, regulations and orders, and
preserve and maintain its corporate existence, rights, franchises,
qualifications and privileges, except to the extent that the failure so to
comply with such laws, rules and regulations or the failure so to preserve and
maintain such rights, franchises, qualifications and privileges would not have a
Material Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The Seller: (i)
shall keep its principal place of business and chief executive office (as such
terms or similar terms are used in the UCC) and the office where it keeps its
records concerning the Receivables at the address of the Seller set forth under
its name on the signature page to the Agreement or, pursuant to clause (l)(iv)
below, at any other locations in jurisdictions where all actions reasonably
requested by the Administrator to protect and perfect the interest of the Issuer
in the Receivables and related items (including the Pool Assets) have been taken
and completed and (ii) shall provide the Administrator with at least 30 days'
written notice before making any change in the Seller's name or making any other
change in the Seller's identity or corporate structure (including a Change in
Control) that could render any UCC financing statement filed in connection with
this Agreement "seriously misleading" as such term (or similar term) is used in
the UCC; each notice to the Administrator pursuant to this sentence shall set
forth the applicable change and the effective date thereof. The Seller also will
maintain and implement (or cause the Servicer to maintain and implement)
administrative and operating procedures (including an ability to recreate
records evidencing Receivables and related Contracts in the event of the
destruction of the originals thereof), and keep and maintain (or cause the
Servicer to keep and maintain) all documents, books, records, computer tapes and
disks and other information reasonably necessary or advisable for the collection
of all Receivables (including records adequate to permit the daily
identification of each Receivable and all Collections of and adjustments to each
existing Receivable). Notwithstanding the above, in no event shall the Seller
have or maintain, or be a partner in any partnership that has or maintains, its
jurisdiction of organization, principal place of business or principal assets in
any of the states of Colorado, Kansas, New Mexico, Oklahoma, Utah or Wyoming.
(c) Performance and Compliance with Contracts and Credit and
Collection Policy. The Seller shall (and shall cause the Servicer to), at its
expense, timely and fully perform and comply with all material provisions,
covenants and other promises required to be observed by it under the Contracts
related to the Receivables, and timely and fully comply in all material respects
with the applicable Credit and Collection Policies with regard to each
Receivable and the related Contract.
Exhibit IV-1
Receivables Purchase Agreement
55
(d) Ownership Interest, Etc. The Seller shall (and shall cause
the Servicer to), at its expense, take all action necessary or desirable to
establish and maintain a valid and enforceable undivided percentage ownership or
security interest, to the extent of the Purchased Interest, in the Pool
Receivables, the Related Security and Collections with respect thereto, and a
first priority perfected security interest in the Pool Assets, in each case free
and clear of any Adverse Claim, in favor of the Issuer, including taking such
action to perfect, protect or more fully evidence the interest of the Issuer as
the Issuer, through the Administrator, may reasonably request.
(e) Sales, Liens, Etc. The Seller shall not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or suffer to
exist any Adverse Claim upon or with respect to, any or all of its right, title
or interest in, to or under any Pool Assets (including the Seller's undivided
interest in any Receivable, Related Security or Collections, or upon or with
respect to any account to which any Collections of any Receivables are sent), or
assign any right to receive income in respect of any items contemplated by this
paragraph.
(f) Extension or Amendment of Receivables. Except as provided in
the Agreement, the Seller shall not, and shall not permit the Servicer to,
extend the maturity or adjust the Outstanding Balance or otherwise modify the
terms of any Pool Receivable in any material respect, or amend, modify or waive,
in any material respect, any term or condition of any related Contract (which
term or condition relates to payments under, or the enforcement of, such
Contract).
(g) Change in Business or Credit and Collection Policy. The
Seller shall not make (or permit the Originators to make) any change in the
character of its business or in any Credit and Collection Policy that would have
a Material Adverse Effect with respect to the Receivables.
(h) Audits. The Seller shall (and shall cause the Originators
to), from time to time during regular business hours as reasonably requested in
advance (unless a Termination Event or Unmatured Termination Event exists) by
the Administrator, permit the Administrator, or its agents or representatives:
(i) to examine and make copies of and abstracts from all books, records and
documents (including computer tapes and disks) in the possession or under the
control of the Seller (or the Originators) relating to Receivables and the
Related Security, including the related Contracts, and (ii) to visit the offices
and properties of the Seller and the Originators for the purpose of examining
such materials described in clause (i) above, and to discuss matters relating to
Receivables and the Related Security or the Seller's, JLG' or the Originators'
performance under the Transaction Documents or under the Contracts with any of
the officers, employees, agents or contractors of the Seller, JLG or any
Originator having knowledge of such matters.
(i) Change in Lock-Box Banks, Lock-Box Accounts and Payment
Instructions to Obligors. Except as otherwise expressly provided herein, the
Seller shall not, and shall not permit the Servicer or the Originators to, add
or terminate any bank as a Lock-Box Bank or any account as a Lock- Box Account
from those listed in Schedule III to the Agreement, or make any change in its
instructions to
Exhibit IV-2
Receivables Purchase Agreement
56
Obligors regarding payments to be made to the Seller, the Originators, the
Servicer or any Lock-Box Account (or related post office box), unless the
Administrator shall have consented (which consent shall not be unreasonably
withheld or delayed) thereto in writing and the Administrator shall have
received copies of all agreements and documents (including Lock-Box Agreements)
that it may reasonably request in connection therewith.
(j) Deposits to Lock-Box Accounts. The Seller shall (or shall
cause the Servicer to): (i) instruct all Obligors to make payments of all
Receivables to one or more Lock-Box Accounts or to post office boxes to which
only Lock-Box Banks have access (and shall instruct the Lock-Box Banks to cause
all items and amounts relating to such Receivables received in such post office
boxes to be removed and deposited into a Lock-Box Account on a daily basis), and
(ii) deposit, or cause to be deposited, any Collections received by it, the
Servicer or any Originator into Lock-Box Accounts not later than two Business
Days after receipt thereof, provided that the Seller may deposit or permit to be
deposited the Collections into its bank account in an aggregate amount not
exceeding $30,000 (which amount will held by the Seller (or any Person on behalf
of the Seller, including the Servicer) in trust for the Purchaser); provided,
further, that notwithstanding anything provided in the previous proviso, if
there shall exist a Termination Event or an Unmatured Termination Event, the
Seller shall, or shall cause the Servicer to, deposit all Collections into the
Lock-Box Account on the day such Collections are received. Each Lock- Box
Account shall at all times be subject to a Lock-Box Agreement. The Seller will
not (and will not permit the Servicer to) deposit or otherwise credit, or cause
or permit to be so deposited or credited, to any Lock-Box Account cash or cash
proceeds other than Collections.
(k) Marking of Records. At its expense, the Seller shall: (i)
mark (or cause the Servicer to mark) its master data processing records relating
to Pool Receivables and related Contracts, including with a legend evidencing
that the undivided percentage ownership interests with regard to the Purchased
Interest related to such Receivables and related Contracts have been sold in
accordance with the Agreement, and (ii) cause each Originator so to mark its
master data processing records pursuant to the Sale Agreement.
(l) Reporting Requirements. The Seller will provide to the
Administrator (in multiple copies, if requested by the Administrator) the
following:
(i) as soon as available and in any event within 90 days after
the end of each fiscal year of the Seller, a copy of the annual report
for such year for the Seller, containing unaudited financial statements
for such year certified as to accuracy by the chief financial officer or
treasurer of the Seller;
(ii) as soon as possible and in any event within five days after
the occurrence of each Termination Event or Unmatured Termination Event,
a statement of the chief financial officer of the Seller setting forth
details of such Termination Event or Unmatured Termination Event and the
action that the Seller has taken and proposes to take with respect
thereto;
Exhibit IV-3
Receivables Purchase Agreement
57
(iii) promptly after the filing or receiving thereof, copies of
all reports and notices that the Seller or any Affiliate files under
ERISA with the Internal Revenue Service, the Pension Benefit Guaranty
Corporation or the U.S. Department of Labor or that the Seller or any
Affiliate receives from any of the foregoing or from any multiemployer
plan (within the meaning of Section 4001(a)(3) of ERISA) to which the
Seller or any of its Affiliates is or was, within the preceding five
years, a contributing employer, in each case in respect of the assessment
of withdrawal liability or an event or condition that could, in the
aggregate, result in the imposition of material liability on the Seller
and/or any such Affiliate;
(iv) at least thirty days before any change in the Seller's name
or any other change requiring the amendment of UCC financing statements,
a notice setting forth such changes and the effective date thereof;
(v) promptly after the Seller obtains knowledge thereof, notice
of any: (A) material litigation, investigation or proceeding that may
exist at any time between the Seller and any Person or (B) material
litigation or proceeding relating to any Transaction Document;
(vi) promptly after the occurrence thereof, notice of a material
adverse change in the business, operations, property or financial or
other condition of the Seller, the Servicer or any Originator; and
(vii) such other information respecting the Receivables or the
condition or operations, financial or otherwise, of the Seller or any of
its Affiliates as the Administrator may from time to time reasonably
request.
(m) Certain Agreements. Without the prior written consent of the
Administrator, the Seller will not (and will not permit the Originators to)
amend, modify, waive, revoke or terminate any Transaction Document to which it
is a party or any provision of Seller's certificate of incorporation or by-laws.
(n) Restricted Payments. (i) Except pursuant to clause (ii)
below, the Seller will not: (A) purchase or redeem any shares of its capital
stock, (B) declare or pay any dividend or set aside any funds for any such
purpose, (C) prepay, purchase or redeem any Debt, (D) lend or advance any funds
or (E) repay any loans or advances to, for or from any of its Affiliates (the
amounts described in clauses (A) through (E) being referred to as "Restricted
Payments").
(ii) Subject to the limitations set forth in clause (iii) below,
the Seller may make Restricted Payments so long as such Restricted
Payments are made only in one or more of the following ways: (A) the
Seller may make cash payments (including prepayments) on the Company
Notes in accordance with its terms, and (B) if no amounts are then
outstanding under the Company Notes, the Seller may declare and pay
dividends.
Exhibit IV-4
Receivables Purchase Agreement
58
(iii) The Seller may make Restricted Payments only out of the
funds it receives pursuant to Sections 1.4(b)(ii) and (iv) of the
Agreement or out of capital surplus (with prior reasonable consent of the
Administrator). Furthermore, the Seller shall not pay, make or declare:
(A) any dividend if, after giving effect thereto, the Seller's tangible
net worth would be less than $6,000,000, (B) any Restricted Payment
(including any dividend) if, after giving effect thereto, any Termination
Event or Unmatured Termination Event shall have occurred and be
continuing.
(o) Other Business. The Seller will not: (i) engage in any
business other than the transactions contemplated by the Transaction Documents;
(ii) create, incur or permit to exist any Debt of any kind (or cause or permit
to be issued for its account any letters of credit or bankers' acceptances)
other than pursuant to this Agreement or the Company Note; or (iii) form any
Subsidiary or make any investments in any other Person; provided, however, that
the Seller shall be permitted to incur minimal obligations to the extent
necessary for the day-to-day operations of the Seller (such as expenses for
stationery, audits, maintenance of legal status, etc.).
(p) Use of Seller's Share of Collections. The Seller shall apply
the Seller's Share of Collections to make payments in the following order of
priority: (i) the payment of its expenses (including all obligations payable to
the Issuer and the Administrator under the Agreement and under the Fee Letter);
(ii) the payment of accrued and unpaid interest on the Company Note; and (iii)
other legal and valid corporate purposes.
(q) Tangible Net Worth. The Seller will not permit its tangible
net worth, at any time, to be less than $6,000,000.
2. Covenants of the Servicer and JLG. Until the latest of the Facility
Termination Date, the date on which no Capital of or Discount in respect of the
Purchased Interest shall be outstanding or the date all other amounts owed by
the Seller under the Agreement to the Issuer, the Administrator and any other
Indemnified Party or Affected Person shall be paid in full:
(a) Compliance with Laws, Etc. The Servicer and, to the extent
that it ceases to be the Servicer, JLG shall comply (and shall cause the
Originators to comply) in all material respects with all applicable laws, rules,
regulations and orders, and preserve and maintain its corporate existence,
rights, franchises, qualifications and privileges, except to the extent that the
failure so to comply with such laws, rules and regulations or the failure so to
preserve and maintain such existence, rights, franchises, qualifications and
privileges would not have a Material Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The Servicer and,
to the extent that it ceases to be the Servicer, JLG, shall keep (and shall
cause each Originator to keep) its principal place of business and chief
executive office (as such terms or similar terms are used in the applicable UCC)
and the office where it keeps its records concerning the Receivables at the
address of the Servicer set forth under its name on the signature page to the
Agreement or, upon at least 30 days' prior written notice of a
Exhibit IV-5
Receivables Purchase Agreement
59
proposed change to the Administrator, at any other locations in jurisdictions
where all actions reasonably requested by the Administrator to protect and
perfect the interest of the Issuer in the Receivables and related items
(including the Pool Assets) have been taken and completed. The Servicer and, to
the extent that it ceases to be the Servicer, JLG, also will (and will cause
each Originator to) maintain and implement administrative and operating
procedures (including an ability to recreate records evidencing Receivables and
related Contracts in the event of the destruction of the originals thereof), and
keep and maintain all documents, books, records, computer tapes and disks and
other information reasonably necessary or advisable for the collection of all
Receivables (including records adequate to permit the daily identification of
each Receivable and all Collections of and adjustments to each existing
Receivable).
(c) Performance and Compliance with Contracts and Credit and
Collection Policy. The Servicer and, to the extent that it ceases to be the
Servicer, JLG, shall (and shall cause each Originator to), at its expense,
timely and fully perform and comply with all material provisions, covenants and
other promises required to be observed by it under the Contracts related to the
Receivables, and timely and fully comply in all material respects with the
Credit and Collection Policy with regard to each Receivable and the related
Contract.
(d) Extension or Amendment of Receivables. Except as provided in
the Agreement, the Servicer and, to the extent that it ceases to be the
Servicer, JLG, shall not extend (and shall not permit the Originators to
extend), the maturity or adjust the Outstanding Balance or otherwise modify the
terms of any Pool Receivable in any material respect, or amend, modify or waive,
in any material respect, any term or condition of any related Contract (which
term or condition relates to payments under, or the enforcement of, such
Contract.
(e) Change in Business or Credit and Collection Policy. The
Servicer and, to the extent that it ceases to be the Servicer, JLG, shall not
make (and shall not permit the Originators to make) any change in the character
of its business or Credit and Collection Policy, that would have a Material
Adverse Effect.
(f) Audits. The Servicer and, to the extent that it ceases to be
the Servicer, JLG, shall (and shall cause the Originators to), from time to time
during regular business hours as reasonably requested in advance (unless a
Termination Event or Unmatured Termination Event exists) by the Administrator,
permit the Administrator, or its agents or representatives: (i) to examine and
make copies of and abstracts from all books, records and documents (including
computer tapes and disks) in its possession or under its control relating to
Receivables and the Related Security, including the related Contracts; and (ii)
to visit its offices and properties for the purpose of examining such materials
described in clause (i) above, and to discuss matters relating to Receivables
and the Related Security or its performance hereunder or under the Contracts
with any of its officers, employees, agents or contractors having knowledge of
such matters.
(g) Change in Lock-Box Banks, Lock-Box Accounts and Payment
Instructions to Obligors. Unless as otherwise expressly provided herein, the
Servicer and, to the extent that it ceases to be the Servicer, JLG, shall not
(and shall not permit the Originators to) add or terminate any bank as a
Exhibit IV-6
Receivables Purchase Agreement
60
Lock-Box Bank or any account as a Lock-Box Account from those listed in Schedule
III to the Agreement, or make any change in its instructions to Obligors
regarding payments to be made to the Servicer or any Lock-Box Account (or
related post office box), unless the Administrator shall have consented thereto
in writing (which consent shall not be unreasonably withheld or delayed) and the
Administrator shall have received copies of all agreements and documents
(including Lock-Box Agreements) that it may reasonably request in connection
therewith.
(h) Deposits to Lock-Box Accounts. The Servicer shall: (i)
instruct all Obligors to make payments of all Receivables to one or more
Lock-Box Accounts or to post office boxes to which only Lock-Box Banks have
access (and shall instruct the Lock-Box Banks to cause all items and amounts
relating to such Receivables received in such post office boxes to be removed
and deposited into a Lock- Box Account on a daily basis); and (ii) deposit, or
cause to be deposited, any Collections received by it into Lock-Box Accounts not
later than one Business Day after receipt thereof. Each Lock-Box Account shall
at all times be subject to a Lock-Box Agreement.
(i) Marking of Records. At its expense, the Servicer shall mark
its master data processing records relating to Pool Receivables and related
Contracts, including with a legend evidencing that the undivided percentage
ownership interests with regard to the Purchased Interest related to such
Receivables and related Contracts have been sold in accordance with the
Agreement.
(j) Reporting Requirements. JLG shall provide to the
Administrator (in multiple copies, if requested by the Administrator) the
following:
(i) as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year of
the Seller, unaudited Balance Sheets of the Seller as of the end of such
Fiscal Quarter and statements of income, retained earnings and cash flow
of the Seller for the period commencing at the end of the previous Fiscal
Year and ending with the end of such Fiscal Quarter, certified by the
chief financial officer of the Seller;
(ii) as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year of
JLG, unaudited balance sheets of JLG and its consolidated Subsidiaries as
of the end of such Fiscal Quarter and statements of income, retained
earnings and cash flow of JLG and its consolidated Subsidiaries for the
period commencing at the end of the previous Fiscal Year and ending with
the end of such Fiscal Quarter, certified by the chief financial officer
of JLG;
(iii) as soon as available and in any event within 90 days after
the end of each Fiscal Year of JLG, a copy of the annual report for such
Fiscal Year of JLG and its consolidated Subsidiaries, containing
financial statements for such Fiscal Year audited by independent
certified public accountants of nationally recognized standing;
Exhibit IV-7
Receivables Purchase Agreement
61
(iv) as to the Servicer only, as soon as available and in any
event not later than two Business Days prior to the Monthly Settlement
Date, an Information Package as of the most recently completed Accounting
Month or, if in the opinion of the Administrator reasonable grounds for
insecurity exist with respect to the collectibility of the Pool
Receivables or with respect to the Seller or Servicer's performance or
ability to perform its obligations under the Agreement, within six
Business Days of a request by the Administrator, an Information Package
for such periods as is specified by the Administrator (but in no event
more frequently than weekly);
(v) as soon as possible and in any event within five days after
becoming aware of the occurrence of each Termination Event or Unmatured
Termination Event, a statement of the chief financial officer of JLG
setting forth details of such Termination Event or Unmatured Termination
Event and the action that such Person has taken and proposes to take with
respect thereto;
(vi) promptly after the sending or filing thereof, copies of all
reports that JLG sends to any of its security holders, and copies of all
reports and registration statements that JLG or any Subsidiary files with
the Securities and Exchange Commission or any national securities
exchange; provided that any filings with the Securities and Exchange
Commission that have been granted "confidential" treatment shall be
provided promptly after such filings have become publicly available;
(vii) promptly after the filing or receiving thereof, copies of
all reports and notices that JLG or any of its Affiliate files under
ERISA with the Internal Revenue Service, the Pension Benefit Guaranty
Corporation or the U.S. Department of Labor or that such Person or any of
its Affiliates receives from any of the foregoing or from any
multiemployer plan (within the meaning of Section 4001(a)(3) of ERISA) to
which such Person or any of its Affiliate is or was, within the preceding
five years, a contributing employer, in each case in respect of the
assessment of withdrawal liability or an event or condition that could,
in the aggregate, result in the imposition of material liability on JLG
and/or any such Affiliate;
(viii) at least thirty days before any change in JLG' or any
Originator's name or any other change requiring the amendment of UCC
financing statements, a notice setting forth such changes and the
effective date thereof;
(ix) promptly after JLG obtains knowledge thereof, notice of any:
(A) litigation, investigation or proceeding that may exist at any time
between JLG or any of its Subsidiaries and any Governmental Authority
that, if not cured or if adversely determined, as the case may be, would
have a Material Adverse Effect; (B) litigation or proceeding, actual or
threatened, that is reasonably likely to have a Material Adverse Effect;
or (C) litigation or proceeding relating to any Transaction Document;
Exhibit IV-8
Receivables Purchase Agreement
62
(x) promptly after the occurrence thereof, notice of any adverse
change in the business, operations, property or financial or other
condition of JLG or any of its Subsidiaries that is reasonably likely to
have Material Adverse Effect; and
(xi) such other information respecting the Receivables or the
condition or operations, financial or otherwise, of JLG or any of its
Affiliates as the Administrator may from time to time reasonably request.
3. Separate Existence. Each of the Seller and JLG hereby acknowledges
that the Purchasers, the Issuer and the Administrator are entering into the
transactions contemplated by this Agreement and the other Transaction Documents
in reliance upon the Seller's identity as a legal entity separate from JLG and
its Affiliates. Therefore, from and after the date hereof, each of the Seller
and JLG shall take all steps specifically required by the Agreement or
reasonably required to continue the Seller's identity as a separate legal entity
and to make it apparent to third Persons that the Seller is an entity with
assets and liabilities distinct from those of JLG and any other Person, and is
not a division of JLG, its Affiliates or any other Person. Without limiting the
generality of the foregoing and in addition to and consistent with the other
covenants set forth herein, each of the Seller and JLG shall take such actions
as shall be required in order that:
(a) The Seller will be a limited purpose corporation whose
primary activities are restricted in its certificate of incorporation to:
(i) purchasing or otherwise acquiring from the Originators (or their
Affiliates), owning, holding, granting security interests or selling
interests in Pool Assets (or other receivables originated by the
Originators or their Affiliates, and certain related assets), (ii)
entering into agreements for the selling and servicing of the Receivables
Pool (or other receivables pools originated by the Originators or their
Affiliates), and (iii) conducting such other activities as it deems
necessary or appropriate to carry out its primary activities;
(b) The Seller shall not engage in any business or activity, or
incur any indebtedness or liability, other than as expressly permitted by
the Transaction Documents;
(c) Not less than one member of the Seller's Board of Directors
(the "Independent Director") shall be an individual who is not a direct,
indirect or beneficial stockholder, officer, director, employee,
affiliate, associate or supplier of JLG or any of its Affiliates (other
than the Seller). The certificate of incorporation of the Seller shall
provide that: (i) the Seller's Board of Directors shall not approve, or
take any other action to cause the filing of, a voluntary bankruptcy
petition with respect to the Seller unless the Independent Director shall
approve the taking of such action in writing before the taking of such
action, and (ii) such provision cannot be amended without the prior
written consent of the Independent Director;
(d) The Independent Director shall not at any time serve as a
trustee in bankruptcy for the Seller, JLG or any Affiliate thereof;
Exhibit IV-9
Receivables Purchase Agreement
63
(e) Any employee, consultant or agent of the Seller will be
compensated from the Seller's funds for services provided to the Seller.
The Seller will not engage any agents other than its attorneys, auditors
and other professionals, and a servicer and any other agent contemplated
by the Transaction Documents for the Receivables Pool, which servicer
will be fully compensated for its services by payment of the Servicing
Fee, and a manager, which manager will be fully compensated from the
Seller's funds;
(f) The Seller will contract with the Servicer to perform for the
Seller all operations required on a daily basis to service the
Receivables Pool. The Seller will pay the Servicer the Servicing Fee
pursuant hereto. The Seller will not incur any material indirect or
overhead expenses for items shared with JLG (or any other Affiliate
thereof) that are not reflected in the Servicing Fee. To the extent, if
any, that the Seller (or any Affiliate thereof) shares items of expenses
not reflected in the Servicing Fee or the manager's fee, such as legal,
auditing and other professional services, such expenses will be allocated
to the extent practical on the basis of actual use or the value of
services rendered, and otherwise on a basis reasonably related to the
actual use or the value of services rendered; it being understood that
JLG shall pay all expenses relating to the preparation, negotiation,
execution and delivery of the Transaction Documents, including legal,
agency and other fees;
(g) The Seller's operating expenses will not be paid by JLG or
any other Affiliate thereof;
(h) All of the Seller's business correspondence and other
communications shall be conducted in the Seller's own name and on its own
separate stationery;
(i) The Seller's books and records will be maintained separately
from those of JLG and any other Affiliate thereof;
(j) All financial statements of JLG or any Affiliate thereof that
are consolidated to include Seller will contain detailed notes clearly
stating that: (i) a special purpose corporation exists as a Subsidiary of
JLG, and (ii) each Originator has sold receivables and other related
assets to such special purpose Subsidiary that, in turn, has sold
undivided interests therein to certain financial institutions and other
entities;
(k) The Seller's assets will be maintained in a manner that
facilitates their identification and segregation from those of JLG or any
Affiliate thereof;
(l) The Seller will strictly observe corporate formalities in its
dealings with JLG or any Affiliate thereof, and funds or other assets of
the Seller will not be commingled with those of JLG or any Affiliate
thereof except as permitted by the Agreement in connection with servicing
the Pool
Exhibit IV-10
Receivables Purchase Agreement
64
Receivables. The Seller shall not maintain joint bank accounts or other
depository accounts to which JLG or any Affiliate thereof has independent
access. The Seller is not named, and has not entered into any agreement
to be named, directly or indirectly, as a direct or contingent
beneficiary or loss payee on any insurance policy with respect to any
loss relating to the property of JLG or any Subsidiary or other Affiliate
of JLG. The Seller will pay to the appropriate Affiliate the marginal
increase or, in the absence of such increase, the market amount of its
portion of the premium payable with respect to any insurance policy that
covers the Seller and such Affiliate; and
(m) The Seller will maintain arm's-length relationships with JLG
(and any Affiliate thereof). Any Person that renders or otherwise
furnishes services to the Seller will be compensated by the Seller at
market rates for such services it renders or otherwise furnishes to the
Seller. Neither the Seller nor JLG will be or will hold itself out to be
responsible for the debts of the other or the decisions or actions
respecting the daily business and affairs of the other. The Seller and
JLG will immediately correct any known misrepresentation with respect to
the foregoing, and they will not operate or purport to operate as an
integrated single economic unit with respect to each other or in their
dealing with any other entity.
(n) JLG shall not pay the salaries of Seller's employees, if any.
Exhibit IV-11
Receivables Purchase Agreement
65
Exhibit V
TERMINATION EVENTS
Each of the following shall be a "Termination Event":
(a) (i) the Seller, JLG, any Originator or the Servicer (if JLG
or any of its Affiliates) shall fail to perform or observe any term, covenant or
agreement under the Agreement or any other Transaction Document and, except as
otherwise provided herein, such failure shall continue for 10 days after
knowledge or notice thereof, (ii) the Seller or the Servicer shall fail to make
when due any payment or deposit to be made by it under the Agreement and such
failure shall continue unremedied for one Business Day or (iii) JLG shall resign
as Servicer, and no successor Servicer reasonably satisfactory to the
Administrator shall have been appointed;
(b) JLG (or any Affiliate thereof) shall fail to transfer to any
successor Servicer when required any rights pursuant to the Agreement that JLG
(or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the
Seller, JLG or Originator (or any of their respective officers) under or in
connection with the Agreement or any other Transaction Document, or any
information or report delivered by the Seller, JLG or Originator or the Servicer
pursuant to the Agreement or any other Transaction Document, shall prove to have
been incorrect or untrue in any material respect when made or deemed made or
delivered, and shall remain incorrect or untrue for 10 days after notice to the
Seller or the Servicer of such inaccuracy;
(d) the Seller or the Servicer shall fail to deliver the
Information Package pursuant to the Agreement, and such failure shall remain
unremedied for two days;
(e) the Agreement or any purchase or reinvestment pursuant to the
Agreement shall for any reason: (i) cease to create, or the Purchased Interest
shall for any reason cease to be, a valid and enforceable perfected undivided
percentage ownership or security interest to the extent of the Purchased
Interest in each Pool Receivable, the Related Security and Collections with
respect thereto, free and clear of any Adverse Claim, or (ii) cease to create
with respect to the Pool Assets, or the interest of the Issuer with respect to
such Pool Assets shall cease to be, a valid and enforceable first priority
perfected security interest, free and clear of any Adverse Claim,
(f) the Seller, JLG or Originator shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Seller, JLG
or Originator seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
Exhibit V-1
Receivables Purchase Agreement
66
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including the entry of an
order for relief against, or the appointment of a receiver, trustee, custodian
or other similar official for, it or for any substantial part of its property)
shall occur; or the Seller, JLG or Originator shall take any corporate action to
authorize any of the actions set forth above in this paragraph;
(g) (i) at any time: (A) the Default Ratio shall exceed 7.5% or
(B) the Delinquency Ratio shall exceed 11.5%; (ii) for any three consecutive
Accounting Months: (A) the average Default Ratio shall exceed 6.5%, (B) the
average Delinquency Ratio shall exceed 8.5% or (C) the Dilution Ratio shall
exceed 4.5%; or (iii) at any time, the aggregate outstanding Capital shall
exceed the Purchase Limit and such excess remain continued for five consecutive
days.
(h) a Change in Control shall occur,
(i) at any time (i) the sum of (A) the Capital plus (B) the Total
Reserves, exceeds (ii) the sum of (A) the Net Receivables Pool Balance at such
time plus (B) the Issuer's Share of the amount of Collections then on deposit in
the Lock-Box Accounts (other than amounts set aside therein representing
Discount and fees), and such circumstance shall not have been cured within two
Business Days,
(j) (i) JLG or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any of its Debt that is outstanding in a
principal amount of at least $10,000,000 in the aggregate when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement, mortgage, indenture
or instrument relating to such Debt (and shall have not been waived); or (ii)
any other event shall occur or condition shall exist under any agreement,
mortgage, indenture or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement,
mortgage, indenture or instrument (and shall have not been waived), if, in
either case: (a) the effect of such non-payment, event or condition is to give
the applicable debtholders the right (whether acted upon or not) to accelerate
the maturity of such Debt, or (b) any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled required
prepayment), redeemed, purchased or defeased, or an offer to repay, redeem,
purchase or defease such Debt shall be required to be made, in each case before
the stated maturity thereof;
(k) either: (i) a contribution failure shall occur with respect
to any Benefit Plan sufficient to give rise to a lien under Section 302(f) of
ERISA, (ii) the Internal Revenue Service shall file a notice of lien asserting a
claim or claims of $100,000 or more in the aggregate pursuant to the Internal
Revenue Code with regard to any of the assets of Seller, Originator, JLG or any
ERISA Affiliate and such lien shall have
Exhibit V-2
Receivables Purchase Agreement
67
been filed and not released within 10 days, or (iii) the Pension Benefit
Guaranty Corporation shall, or shall indicate its intention in writing to the
Seller, Originator, JLG or any ERISA Affiliate to, either file a notice of lien
asserting a claim pursuant to ERISA with regard to any assets of the Seller,
Originator, JLG or any ERISA Affiliate or terminate any Benefit Plan that has
unfunded benefit liabilities, or any steps shall have been taken to terminate
any Benefit Plan subject to Title IV of ERISA so as to result in any liability
in excess of $1,000,000 and such lien shall have been filed and not released
within 10 days.
Exhibit V-3
Receivables Purchase Agreement
68
Schedule I
CREDIT AND COLLECTION POLICY
Receivables Purchase Agreement
69
Schedule II
LOCK-BOX BANKS AND LOCK-BOX POLICY
Lockbox Policy:
All domestic invoices issued on behalf of JLG Industries, Inc. are designated
for payment to Allfirst Bank as outlined below. All invoices issued on behalf of
The Gradall Company and The Gradall Orrville Company are designated for payment
to Bank One Corporation outlined below.
Lockbox Banks:
Allfirst Bank
P.O. Box 64451
110 S. Paca Street
Baltimore, MD 21201
The Gradall Company
Bank One Corporation, N.A.
P.O. Box 710954
Columbus, OH 43271-0954
The Gradall Orrville Company
Bank One Corporation, N.A.
P.O. Box 710966
Columbus, OH 43271-0966
Receivables Purchase Agreement
70
Schedule III
TRADE NAMES
JLG Industries (Europe) Division
JLG Industries (Australia) Division
JLG Financial Services
Receivables Purchase Agreement
71
Schedule IV
ACCOUNTING MONTHS
Receivables Purchase Agreement
72
Annex A
FORM OF INFORMATION PACKAGE
Receivables Purchase Agreement
73
Annex B
FORM OF PURCHASE NOTICE
_____________, [2000]
PNC Bank, National Association
One PNC Plaza, 3rd Floor
249 Fifth Avenue
Pittsburgh, PA 15222-2707
Ladies and Gentlemen:
Reference is hereby made to the Receivables Purchase Agreement, dated as
of June ____, 2000 (as heretofore amended or supplemented, the "Receivables
Purchase Agreement"), among Fulton Funding Corporation, ("Seller"), JLG, as
Servicer, Market Street Funding Corporation ("Issuer") and PNC Bank National
Association, (the "Administrator"). Capitalized terms used in this Purchase
Notice and not otherwise defined herein shall have the meanings assigned thereto
in the Receivables Purchase Agreement.
This letter constitutes a Purchase Notice pursuant to Section 1.2(a) of
the Receivables Purchase Agreement. Seller desires to sell an undivided variable
interest in a pool of receivables on _________, 2000, for a purchase price of
$_______________. Subsequent to this Purchase, the aggregate outstanding Capital
will be $___________.
Seller hereby represents and warrants as of the date hereof, and as of
the date of Purchase, as follows:
(i) the representations and warranties contained in Exhibit III of the
Receivables Purchase Agreement are correct in all material respects on and as of
such dates as though made on and as of such dates and shall be deemed to have
been made on such dates;
(ii) no Termination Event or Unmatured Termination Event has occurred and
is continuing, or would result from such purchase;
(iii) after giving effect to the purchase proposed hereby, the aggregate
outstanding Capital of the Purchased Interest will not exceed 100% and the
Capital will not exceed the Purchase Limit; and
(iv) the Facility Termination Date shall not have occurred.
Annex B - 1
Receivables Purchase Agreement
74
IN WITNESS WHEREOF, the undersigned has caused this Purchase Notice to be
executed by its duly authorized officer as of the date first above written.
FULTON FUNDING CORPORATION
By: ____________________________________
Name:
Title:
Annex B - 2
Receivables Purchase Agreement
75
Annex C
FORM OF PAYDOWN NOTICE
PNC Bank, National Association
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Attention: John Smathers
Ladies and Gentlemen:
Reference is hereby made to the Receivables Purchase Agreement, dated as
of June , 2000 (as amended, supplemented or otherwise modified, the "Receivables
Purchase Agreement"), among Fulton Funding Corporation, as Seller, JLG
Industries, Inc., as Servicer, Market Street Funding Corporation, as Issuer and
PNC Bank, National Association, as Administrator. Capitalized terms used in this
paydown notice and not otherwise defined herein shall have the meanings assigned
thereto in the Receivables Purchase Agreement.
This letter constitutes a paydown notice pursuant to Section 1.4(f)(i) of
the Receivables Purchase Agreement. The Seller desires to reduce the Capital on
(1) by the application of $ in cash to pay Capital and Discount to accrue (until
such cash can be used to pay commercial paper notes) with respect to such
Capital, together with all costs related to such reduction of Capital.
- ----------------------------
(1)
Notice must be given at least two Business Days' prior to the
requested paydown date, in the case of reductions of $75,000,000 or less.
Receivables Purchase Agreement
76
IN WITNESS WHEREOF, the undersigned has caused this paydown notice to be
executed by its duly authorized officer as of the date first above written.
FULTON FUNDING CORPORATION
By: ___________________________________
Name:
Title:
S-1
Receivables Purchase Agreement