EXHIBIT 10.4
FIRST AMENDMENT AND WAIVER TO
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT AND WAIVER TO REVOLVING CREDIT AGREEMENT, dated as
of February 4, 2004 (this "Amendment"), by and among JLG INDUSTRIES, INC., a
Pennsylvania corporation (the "Borrower"), the several banks and other financial
institutions and lenders from time to time party hereto (the "Lenders"),
SUNTRUST BANK, in its capacity as administrative agent for the Lenders (the
"Administrative Agent"), as issuing bank (the "Issuing Bank") and as swingline
lender (the "Swingline Lender"), MANUFACTURERS AND TRADERS TRUST COMPANY, as
syndication agent (the "Syndication Agent") and STANDARD FEDERAL BANK NA, as
documentation agent (the "Documentation Agent").
WITNESSETH:
WHEREAS, Borrower, Lenders, Administrative Agent, Issuing Bank,
Swingline Lender, Syndication Agent and Documentation Agent are parties to that
certain Revolving Credit Agreement, dated as of September 23, 2003 (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement");
WHEREAS, Borrower has requested that Administrative Agent and Lenders
agree to amend the Credit Agreement in the manner set forth below, and the
Administrative Agent and Lenders are willing to do so on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and conditions
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings given to such terms in the Credit Agreement.
2. Amendments.
(a) Section 1.1 of the Credit Agreement is hereby amended by
(i) replacing the definitions of "Monetization Transaction" and "MOSA" in their
entirety with the following definitions and (ii) adding the following definition
of "2004 Equity Offering", "Limited Recourse Financing Documents" and "Limited
Recourse Financing Transaction" (each in appropriate alphabetical order):
"2004 Equity Offering" shall mean the offering of the
Borrower's common stock in an underwritten registered public
offering consummated after February 6, 2004 and on or before
April 30, 2004, by Borrower.
"Limited Recourse Financing Documents" shall mean (i)
that certain Program Agreement, dated as of September 18,
2003, by and between Borrower and General Electric Capital
Corporation (the "GECC Financing Agreement"), (ii) that
certain Program Agreement in
substantially the form provided by Borrower to the
Administrative Agent, to be entered into by and between JLG
Europe B.V. and GE European Equipment Finance Limited, and
(iii) any other agreements entered into from time to time
between Borrower and/or any of its Subsidiaries and third
party financing providers evidencing financing programs
sponsored by Borrower for the benefit of its customers, which
agreements shall be in form and substance reasonably
satisfactory to the Administrative Agent.
"Limited Recourse Financing Transaction" shall mean
any transaction or a series of transactions entered into by
the Borrower or a Subsidiary pursuant to the Limited Recourse
Financing Documents.
"Monetization Transaction" shall mean (i) any
transaction or series of transactions pursuant to which the
Borrower or any of its Subsidiaries sells, conveys, assigns,
pledges or otherwise transfers for value any Monetization
Assets to any Monetization Subsidiary or to any other Person
that is not an Affiliate of the Borrower, or creates a Lien in
Monetization Assets in favor of any Monetization Subsidiary or
any other Person that is not an Affiliate of the Borrower to
secure Indebtedness incurred in connection with such
Monetization Transaction and (ii) any Limited Recourse
Financing Transaction.
"MOSA" shall mean a mandate-of-sale agreement,
remarketing agreement, cooperation agreement, deed of
undertaking, guaranty or similar agreement or instrument
entered into by the Borrower or any of its Subsidiaries as a
credit enhancement of financing obtained by customers of the
Borrower or any of its Subsidiaries to finance the acquisition
by such customers of equipment manufactured by the Borrower or
any of its Subsidiaries; provided, that "MOSA" shall not
include any Limited Recourse Financing Transaction.
"OmniQuip Note" shall have the meaning assigned to
such term in Section 7.5.
(b) Section 1.1 of the Credit Agreement is hereby further
amended by deleting the period at the end of the definition of "Consolidated
Total Debt" and adding the following proviso:
; provided further, however, that for purposes of
calculating Consolidated Total Debt as of any date (i) the
amount of Indebtedness attributable to any MOSA shall not
exceed the non-contingent obligations of the Borrower and its
Consolidated Subsidiaries in respect of such MOSA, and (ii)
the amount of Indebtedness attributable to any Monetization
Transaction shall not exceed the Maximum Loss Exposure in
respect of such Monetization Transaction.
(c) Section 7.5 of the Credit Agreement is hereby amended by
replacing such Section in its entirety with the following:
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SECTION 7.5 RESTRICTED PAYMENTS. The Borrower will
not, and will not permit its Subsidiaries (other than
Monetization Subsidiaries) to, declare or make, or agree to
pay or make, directly or indirectly, any dividend on any class
of its Capital Stock, or make any payment on account of, or
set apart assets for a sinking or other analogous fund for,
the purchase, redemption, retirement, defeasance or other
acquisition of, any shares of its Capital Stock or
Indebtedness subordinated to the Obligations of the Borrower
or any Guarantee thereof or any options, warrants, or other
rights to purchase such Capital Stock or such Indebtedness,
whether now or hereafter outstanding (each, a "Restricted
Payment"), except for (a) dividends payable by the Borrower
solely in shares of any class of its common stock, (b)
Restricted Payments made by any Subsidiary Loan Party to the
Borrower or to another Subsidiary Loan Party, (c) in the
absence of a Default or an Event of Default, the payment of
regular cash dividends in accordance with reasonable business
practice in the good faith judgment of the board of directors
of the Borrower, (d) distributions of Capital Stock (subject
to compliance with the last paragraph of Section 7.1) upon the
exercise of the "Rights" as defined in the Rights Agreement,
dated as of May 24, 2000, between the Borrower and American
Stock Transfer and Trust Company, as it may be amended,
supplemented or otherwise modified from time to time, (e) no
later than April 30, 2004, the repurchase or repayment in full
of that certain unsecured subordinated promissory note, dated
August 1, 2003, executed by JLG Acquisition Company, as
predecessor in interest to JLG OmniQuip, Inc. in favor of TRAK
International, Inc. and in the original principal amount of
$10,000,000 (the "OmniQuip Note"), (f) the repurchase of up to
$35,000,000 of the Senior Subordinated Notes, and (g) the
repurchase or redemption of Senior Subordinated Notes and the
Senior Unsecured Notes for an aggregate repurchase or
redemption price not to exceed $100,000,000, provided, that
such repurchase or redemption occurs on or prior to December
31, 2004, and is made solely with the proceeds of the 2004
Equity Offering; provided that in the case of any repuchase or
redemption in clauses (f) or (g) above, (i) immediately after
giving pro forma effect to any such repurchase or redemption
as though the repurchase or redemption had closed on the last
Business Day of the Fiscal Month immediately preceding
delivery of the most recently delivered Borrowing Base
Certificate pursuant to Section 5.1(f), the Borrowing
Availability would be at least $10,000,000, (ii) immediately
after giving effect to the repurchase or redemption, no
Default or Event of Default shall otherwise have occurred and
be continuing and (iii) immediately after giving pro forma
effect to any such repurchase or redemption as though the
repurchase or redemption had closed on the first day of the
most recently ended four consecutive Fiscal Quarter period for
which financial statements have been delivered pursuant to
Section 5.1 (a) or (b), the Borrower would be in compliance
with the financial covenants
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provided for in Article VI as of the most recent Fiscal
Quarter in respect of which the Borrower is required to have
delivered a Compliance Certificate pursuant to Section 5.1(c).
3. Waiver. The Lenders hereby waive the requirement of Section
2.12(c) of the Credit Agreement requiring the Borrower to prepay the Loans in an
amount equal to fifty (50%) of the Net Cash Proceeds received by the Borrower in
connection with the 2004 Equity Offering; provided, that the Net Cash Proceeds
of such issuance are used (i) to repurchase or repay the OmniQuip Note (to the
extent such OmniQuip Note has not been repaid prior to the 2004 Equity
Offering), (ii) to repurchase or redeem the Senior Subordinated Notes and the
Senior Unsecured Notes, and (iii) for working capital needs and for other
general corporate purposes of the Borrower and its Subsidiaries.
4. Conditions to Effectiveness of Amendment. This Amendment shall
not become effective until each of the following conditions precedent have been
satisfied in full:
(a) Administrative Agent shall have received a duly
executed counterpart of this Amendment executed by the Borrower and the
Required Lenders;
(b) Administrative Agent shall have received duly
executed counterparts of the Reaffirmation of Guaranty in the form
attached hereto, executed by each Subsidiary Loan Party; and
(c) Administrative Agent shall have received the
reasonable costs and expenses incurred in connection with this
Amendment, including without limitation the reasonable fees and
out-of-pocket expenses of counsel to the Administrative Agent.
5. Representations and Warranties. The Borrower hereby represents
and warrants to the Administrative Agent and Lenders that:
(a) the execution, delivery and performance by Borrower
of this Amendment (i) are within Borrower's organizational power, (ii)
have been duly authorized by all necessary organizational, and if
required, stockholder action, (iii) do not require any consent or
approval of, or registration or filing with, or any action by, any
Governmental Authority, except those as have been obtained or made and
are in full force and effect, (iv) do not violate any applicable law,
rule or regulation, or the charter, bylaws or other organizational
documents of the Borrower or any of its Subsidiaries or any judgment,
order or ruling of any Governmental Authority, (v) will not violate or
result in a default under any indenture, agreement or other instrument
binding on the Borrower or any of its Subsidiaries or any of its assets
or give rise to a right thereunder to require any payment to be made by
the Borrower or any of its Subsidiaries, in each case where the failure
to do so, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect and (vi) will not result in
the creation or imposition of any Lien on any asset of the Borrower or
any of its Subsidiaries.
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(b) this Amendment has been duly executed and delivered
by the Borrower and constitutes the valid and binding obligation of the
Borrower, enforceable against it in accordance with its terms, except
as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity; and
(c) after giving effect to this Amendment, all of the
representations and warranties set forth in Article IV of the Credit
Agreement are true and correct in all material respects, or if such
representations and warranties relate solely to an earlier date, were
true and correct as of such earlier date, and no Default or Event of
Default has occurred and is continuing as of the date hereof.
6. Survival. Except as expressly provided herein, the Credit
Agreement shall continue in full force and effect, and the unamended terms and
conditions of the Credit Agreement are expressly incorporated herein and
ratified and confirmed in all respects. This Amendment is not intended to be or
to create, nor shall it be construed as, a novation or an accord and
satisfaction.
7. Effect of Amendment. From and after the date hereof,
references to the Credit Agreement shall be references to the Credit Agreement
as amended hereby.
8. Entire Understanding. This Amendment constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.
Neither this Amendment nor any provision hereof may be changed, waived,
discharged, modified or terminated orally, but only by an instrument in writing
signed by the parties required to be a party thereto pursuant to Section 10.2 of
the Credit Agreement.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF) OF THE STATE OF NEW YORK.
10. Counterparts. This Amendment may be executed by one or more
parties to this Amendment on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
[SIGNATURES TO FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first above written.
JLG INDUSTRIES, INC., as Borrower
By /s/ Thomas D. Singer
---------------------------------
Name: Thomas D. Singer
Title: Senior Vice President, General Counsel
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
SUNTRUST BANK
AS ADMINISTRATIVE AGENT, AS ISSUING BANK, AS
SWINGLINE LENDER AND AS A LENDER
By /s/ Stephen Derby
---------------------------------
Name: Stephen Derby
Title: Director
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
MANUFACTURERS AND TRADERS TRUST
COMPANY, AS SYNDICATION AGENT AND AS A
LENDER
By /s/ Kellie M. Matthews
---------------------------------
Name: Kellie M. Matthews
Title: Administrative Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
STANDARD FEDERAL BANK NA,
AS DOCUMENTATION AGENT AND AS A LENDER
By /s/ Mark Ossman
---------------------------------
Name: Mark Ossman
Title: ASSISTANT VICE PRESIDENT
SIEMENS FINANCIAL SERVICES, INC.,
AS A LENDER
By /s/ Frank Amodio
---------------------------------
Name: Frank Amodio
Title: Vice President - Credit
CITIZENS BANK OF PENNSYLVANIA,
AS A LENDER
By /s/ Joseph N. Butto
---------------------------------
Name: Joseph N. Butto
Title: Vice President
HARRIS TRUST & SAVINGS BANK,
AS A LENDER
By /s/ David L. Mistic
---------------------------------
Name: David L. Mistic
Title: Vice President
NATIONAL CITY BANK OF
PENNSYLVANIA, AS A LENDER
By /s/ Debra W. Riefner
---------------------------------
Name: Debra W. Riefner
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
AS A LENDER
By /s/ Michael Fox
---------------------------------
Name: Michael Fox
Title: Vice-President
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYMAN ISLANDS BRANCH
By /s/ William O'Daly
---------------------------------
William O'Daly
Director
By /s/ Jay Chall
---------------------------------
Jay Chall
Director
ORIX FINANCIAL SERVICES, INC,
AS A LENDER
By _________________________________
Name:
Title:
REAFFIRMATION OF GUARANTY
Each of the undersigned, being a Subsidiary Loan Party and a guarantor
of the Obligations of JLG Industries, Inc. ("Borrower") to the Lenders (as
defined below) under that certain Revolving Credit Agreement, dated as of
September 23, 2003, as amended by that certain First Amendment to Revolving
Credit Agreement, dated as of the date hereof (as amended, restated,
supplemented, or otherwise modified from time to time, the "Credit Agreement";
capitalized terms used herein but not defined herein shall have the respective
meanings assigned to such term in the Credit Agreement) by and among the
Borrower, the several banks and other financial institutions and lenders from
time to time party hereto (the "Lenders"), SUNTRUST BANK, in its capacity as
administrative agent for the Lenders (the "Administrative Agent"), as issuing
bank (the "Issuing Bank") and as swingline lender (the "Swingline Lender"),
MANUFACTURERS AND TRADERS TRUST COMPANY, as syndication agent (the "Syndication
Agent") and STANDARD FEDERAL BANK NA, as documentation agent (the "Documentation
Agent") hereby (a) acknowledges its receipt of a copy of the within and
foregoing First Amendment and Waiver to Revolving Credit Agreement
("Amendment"), (b) consents thereto and agrees to be bound thereby and (c)
agrees that its guaranty of the Obligations of Borrower to the Lenders shall
continue in full force and effect from and after the execution and delivery by
Borrower and the Lenders of the Amendment, without diminution or impairment.
IN WITNESS WHEREOF, each of the undersigned has caused this
acknowledgment to be executed under seal by their respective officers thereunto
duly authorized, as of February 4, 2004.
EACH OF THE SUBSIDIARIES LISTED
ON SCHEDULE I HERETO
By: ________________________________
Name:
Title:
SCHEDULE I
IN WITNESS WHEREOF, each of the undersigned has caused this acknowledgment to be
executed under seal by their respective officers thereunto duly authorized,
GRADALL INDUSTRIES, INC.
By: /s/ Thomas D. Singer
--------------------------------
Name: Thomas D. Singer
Title: Vice President
FULTON INTERNATIONAL INC.
By: /s/ Thomas D. Singer
--------------------------------
Name: Thomas D. Singer
Title: Vice President
ACCESS FINANCIAL SOLUTIONS, INC.
By: /s/ Thomas D. Singer
--------------------------------
Name: Thomas D. Singer
Title: Vice President
JLG OMNIQUIP, INC.
By: /s/ Thomas D. Singer
--------------------------------
Name: Thomas D. Singer
Title: Vice President
JLG EQUIPMENT SERVICES, INC.
By: /s/ Thomas D. Singer
--------------------------------
Name: Thomas D. Singer
Title: Vice President
JLG INTERNATIONAL LLC
BY: JLG Industries, Inc. (its sole member)
By: /s/ Thomas D. Singer
--------------------------------
Name: Thomas D. Singer
Title: Senior Vice President, General
Counsel & Secretary
THE GRADALL COMPANY
By: /s/ Thomas D. Singer
--------------------------------
Name: Thomas D. Singer
Title: Vice President