Exhibit 10.1
Execution Copy
AMENDED AND RESTATED
CREDIT AGREEMENT
dated June 17, 2002
by and among
JLG Industries, Inc. and its Subsidiaries
listed on Schedule 1 hereto,
as Borrowers,
the Lenders listed on Schedule 2 hereto,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and Documentation Agent,
and
BANK ONE, MICHIGAN,
as Syndication Agent
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.............................................................................................1
Section 1.1. Definitions.......................................................................................1
Section 1.2. General..........................................................................................17
Section 1.3. Other Definitions and Provisions.................................................................17
ARTICLE II REVOLVING CREDIT FACILITY.............................................................................18
Section 2.1. Revolving Credit Loans...........................................................................18
Section 2.2. Swingline Loans..................................................................................18
Section 2.3. Procedure for Advances of Revolving Credit and Swingline Loans...................................19
Section 2.4. Repayment of Loans...............................................................................20
Section 2.5. Notes............................................................................................21
Section 2.6. Permanent Reduction of the Aggregate Commitment..................................................22
Section 2.7. Termination of Credit Facility...................................................................22
Section 2.8. Use of Proceeds..................................................................................22
Section 2.9. Alternate Currency Options.......................................................................22
Section 2.10. European Economic and Monetary Union............................................................24
Section 2.11. Amendment and Restatement.......................................................................27
ARTICLE III LETTER OF CREDIT FACILITY............................................................................27
Section 3.1. L/C Commitment...................................................................................27
Section 3.2. Procedure for Issuance of Letters of Credit......................................................28
Section 3.3. Commissions and Other Charges....................................................................28
Section 3.4. L/C Participations...............................................................................29
Section 3.5. Reimbursement Obligation of the Borrowers........................................................30
Section 3.6. Obligations Absolute.............................................................................30
Section 3.7. Effect of Application............................................................................31
Section 3.8. General Terms of Documentary Letters of Credit...................................................31
Section 3.9. Existing Letters of Credit.......................................................................32
ARTICLE IV GENERAL LOAN PROVISIONS...............................................................................32
Section 4.1. Interest.........................................................................................32
Section 4.2. Notice and Manner of Conversion or Continuation of Loans.........................................34
Section 4.3. Fees.............................................................................................35
Section 4.4. Manner of Payment................................................................................35
Section 4.5. Credit of Payments and Proceeds..................................................................36
Section 4.6. Adjustments......................................................................................36
Section 4.7. Nature of Obligations of Lenders Regarding Extensions of Credit;
Assumption by the Administrative Agent........................................................37
Section 4.8. Changed Circumstances............................................................................37
Section 4.9. Indemnity........................................................................................39
Section 4.10. Capital Requirements............................................................................39
Section 4.11. Taxes...........................................................................................40
Section 4.12. Security........................................................................................41
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ARTICLE V CLOSING; CONDITIONS OF EFFECTIVENESS AND BORROWING.....................................................42
Section 5.1. Conditions to Effectiveness......................................................................42
Section 5.2. Conditions to All Extensions of Credit...........................................................43
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWERS.......................................................43
Section 6.1. Representations and Warranties...................................................................43
Section 6.2. Survival of Representations and Warranties, Etc..................................................51
ARTICLE VII FINANCIAL INFORMATION AND NOTICES....................................................................51
Section 7.1. Financial Statements.............................................................................51
Section 7.2. Officer's Compliance Certificate.................................................................52
Section 7.3. Accountants' Certificate.........................................................................53
Section 7.4. Other Reports....................................................................................53
Section 7.5. Notice of Litigation and Other Matters...........................................................53
Section 7.6. Accuracy of Information..........................................................................54
ARTICLE VIII AFFIRMATIVE COVENANTS...............................................................................54
Section 8.1. Preservation of Corporate Existence and Related Matters..........................................55
Section 8.2. Maintenance of Property..........................................................................55
Section 8.3. Insurance........................................................................................55
Section 8.4. Accounting Methods and Financial Records.........................................................55
Section 8.5. Payment and Performance of Obligations...........................................................55
Section 8.6. Compliance With Laws and Approvals...............................................................55
Section 8.7. Environmental Laws...............................................................................56
Section 8.8. Compliance with ERISA............................................................................56
Section 8.9. Intentionally Omitted............................................................................57
Section 8.10. Conduct of Business.............................................................................57
Section 8.11. Visits and Inspections..........................................................................57
Section 8.12. Additional Subsidiaries; Monetization Subsidiaries..............................................57
Section 8.13. Deposit Account.................................................................................57
Section 8.14. Transactions Among Affiliates...................................................................57
Section 8.15. Costs and Expenses..............................................................................58
Section 8.16. Further Assurances..............................................................................58
Section 8.17. Intentionally Omitted...........................................................................58
Section 8.18. Intentionally Omitted...........................................................................58
Section 8.19. AFS Financing Agreement Transactions............................................................58
Section 8.20. Senior Subordinated Debt........................................................................59
ARTICLE IX FINANCIAL COVENANTS...................................................................................59
Section 9.1. Leverage Ratio...................................................................................59
Section 9.2. Adjusted Interest Coverage Ratio.................................................................59
Section 9.3. Minimum Net Worth................................................................................59
Section 9.4. Adjusted Leverage Ratio..........................................................................59
Section 9.5. Senior Leverage Ratio............................................................................60
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ARTICLE X NEGATIVE COVENANTS.....................................................................................60
Section 10.1. Limitations on Debt and Guaranty Obligations....................................................60
Section 10.2. Intentionally Omitted...........................................................................62
Section 10.3. Limitations on Liens............................................................................62
Section 10.4. Limitations on Investments......................................................................63
Section 10.5. Limitations on Mergers and Liquidation..........................................................65
Section 10.6. Limitations on Sale of Assets...................................................................66
Section 10.7. Limitations on Stock Transactions...............................................................67
Section 10.8. Intentionally Omitted...........................................................................67
Section 10.9. Certain Accounting Changes......................................................................67
Section 10.10. Amendments; Payments and Prepayments of Senior Subordinated Debt...............................67
Section 10.11. Intentionally Omitted..........................................................................67
Section 10.12. Use of Proceeds................................................................................67
ARTICLE XI DEFAULT AND REMEDIES..................................................................................68
Section 11.1. Events of Default...............................................................................68
Section 11.2. Remedies........................................................................................70
Section 11.3. Rights and Remedies Cumulative; Non-Waiver, etc.................................................71
ARTICLE XII THE ADMINISTRATIVE AGENT.............................................................................72
Section 12.1. Appointment.....................................................................................72
Section 12.2. Delegation of Duties............................................................................72
Section 12.3. Exculpatory Provisions..........................................................................72
Section 12.4. Reliance by the Administrative Agent............................................................72
Section 12.5. Notice of Default...............................................................................73
Section 12.6. Non-Reliance on the Administrative Agent and Other Lenders......................................73
Section 12.7. Indemnification.................................................................................74
Section 12.8. The Administrative Agent in Its Individual Capacity.............................................74
Section 12.9. Resignation of the Administrative Agent; Successor Administrative Agent.........................74
ARTICLE XIII MISCELLANEOUS.......................................................................................75
Section 13.1. Notices.........................................................................................75
Section 13.2. Expenses; Indemnity.............................................................................76
Section 13.3. Set-off.........................................................................................77
Section 13.4. Governing Law...................................................................................77
Section 13.5. Consent to Jurisdiction.........................................................................77
Section 13.6. Waiver of Jury Trial............................................................................78
Section 13.7. Reversal of Payments............................................................................78
Section 13.8. Injunctive Relief; Punitive Damages.............................................................78
Section 13.9. Accounting Matters..............................................................................79
Section 13.10. Successors and Assigns; Participations.........................................................79
Section 13.11. Participations.................................................................................81
Section 13.12. Disclosure of Information; Confidentiality.....................................................81
Section 13.13. Certain Pledges or Assignments; Amendments.....................................................82
Section 13.14. Costs and Expenses of Borrowers................................................................82
Section 13.15. Authorization Coupled with an Interest.........................................................82
Section 13.16. Full Force and Effect..........................................................................82
Section 13.17. Headings.......................................................................................83
Section 13.18. Severability...................................................................................83
Section 13.19. Counterparts...................................................................................83
Section 13.20. Agreement in Effect............................................................................83
Section 13.21. Credit Agreement Controls......................................................................83
Section 13.22. Covenants Independent..........................................................................83
Section 13.23. PNC Three Party Agreement......................................................................83
Section 13.24. Termination....................................................................................84
Section 13.25. Confirmation of Collateral Security Documents..................................................84
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THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement"),
dated the 17th day of June, 2002, is made by and among JLG INDUSTRIES, INC., a
Pennsylvania corporation ("JLG"), the Subsidiaries (as hereinafter defined) of
JLG listed on Schedule 1 hereto (together with JLG, individually and
collectively, "Borrowers"), the Lenders who are or may become a party to this
Agreement, and WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent and
documentation agent for the Lenders, and BANK ONE, MICHIGAN, as syndication
agent for the Lenders.
STATEMENT OF PURPOSE
The Borrowers and the Lenders entered into a Credit Agreement
dated June 18, 1999, which was amended by Amendment No. 1 to Credit Agreement
dated December 16, 1999, Amendment No. 2 to and Consent and Waiver under Credit
Agreement dated June 30, 2000 and Amendment No. 3 and Joinder to Credit
Agreement dated October 4, 2001 (the "Original Credit Agreement"). The Borrowers
and the Lenders also entered into the Working Capital Facility (defined below)
which will be prepaid and repaid in full and terminated on the Closing Date
(defined below). Borrowers, Administrative Agent and Required Lenders have
agreed to amend and restate the Original Credit Agreement in its entirety as set
forth below.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
such parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. The following terms when used in
this Agreement shall have the meanings assigned to them below:
"1934 Act" means the Securities Exchange Act of 1934, as
amended.
"Adjusted EBIT" means, for any Rolling Period, Consolidated
net income of JLG and its Subsidiaries for such Rolling Period (excluding net
income arising from Monetization Assets in connection with Monetization
Transactions, or portions thereof, which are reflected as debt on the
Consolidated balance sheet of JLG and its Consolidated Subsidiaries), plus (i)
interest expense and taxes for such Rolling Period and (ii) the Orrville
Restructuring Charge, in each case as defined in accordance with GAAP and, if
applicable, to the extent each has been deducted in determining net income.
"Adjusted Interest Coverage Ratio" means, as of the date of
determination, the ratio of Adjusted EBIT to Adjusted Interest Expense, in each
case for the Rolling Period ending on such date.
"Adjusted Interest Expense" means, for any Rolling Period,
Consolidated interest expense of JLG and its Subsidiaries for such Rolling
Period (including, without limitation, interest expense attributable to Capital
Leases but excluding interest expense relating to Non-Recourse Obligations)
determined in accordance with GAAP.
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"Adjusted Leverage Ratio" means, as of the date of
determination, the ratio of Adjusted Total Funded Debt as of such date to EBITDA
for the Rolling Period ending on such date.
"Adjusted Net Worth" means, as of any date of determination,
Net Worth of JLG and its Consolidated Subsidiaries, as of the last day of the
fiscal quarter immediately preceding the date of determination, plus the Gradall
Charge.
"Adjusted Total Funded Debt" means, without duplication, as of
the last day of any Rolling Period, Total Funded Debt, plus Non-Recourse
Obligations of JLG and its Consolidated Subsidiaries, plus Guaranty Obligations
consisting of MOSAs.
"Administrative Agent" means Wachovia in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 12.9.
"Administrative Agent's Office" means the office of the
Administrative Agent specified in or determined in accordance with the
provisions of Section 13.1(c).
"Affiliate" means, with respect to any Person, any other
Person (other than a Subsidiary) which directly or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, such first Person or any of its Subsidiaries. The term control means (a)
the power to vote ten percent (10%) or more of the securities or other equity
interests of a Person having ordinary voting power, or (b) the possession,
directly or indirectly, of any other power to direct or cause the direction of
the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"Affiliate Transactions" shall have the meaning set forth in
Section 8.14 hereof.
"AFS" means Access Financial Solutions, Inc., a Maryland
corporation and a Wholly-Owned Subsidiary of JLG.
"AFS Financing Agreements" means all agreements between AFS
and a customer of JLG or any of its Subsidiaries, evidencing a Customer
Financing, of which ninety percent (90%) will have a term no longer than 72
months and one hundred percent (100%) will have a term no longer than 84 months.
"Aggregate Commitment" means the aggregate amount of the
Lenders' Commitments hereunder, as such amount may be reduced or modified at any
time or from time to time pursuant to the terms hereof. On the Closing Date, the
Aggregate Commitment shall be Two Hundred Fifty Million Dollars ($250,000,000).
"Agreement" means this Amended and Restated Credit Agreement,
together with the schedules and exhibits attached hereto, as amended, restated
or otherwise modified.
"Alternate Currency" shall have the meaning set forth in
Paragraph 2.9 hereof.
"Alternate Currency Loan" means a Revolving Credit Loan
denominated in an Alternate Currency.
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"Alternate Lending Office" means as to each Lender, such
office, branch, affiliate or correspondent of such Lender as such Lender may
from time to time designate by notice to Borrowers and the Administrative Agent
as such Lender's office for making or receiving payments of Alternate Currency
Loans.
"Applicable Law" means all applicable provisions of
constitutions, laws, statutes, ordinances, rules, treaties, regulations,
requirements of Governmental Approvals and orders of courts, arbitrators (which
have been entered and filed with a court of competent jurisdiction) or
Governmental Authorities.
"Applicable Margin" shall have the meaning assigned thereto in
Section 4.1(c).
"Application" means an application, in the form specified by
the Issuing Lender from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"Asset Sale" means, with respect to a Person, the conveyance,
sale, lease, assignment, transfer or other disposition of any of the Person's
property, business or assets (other than cash, cash equivalents and Investments
permitted under Section 10.4(b)), whether now owned or hereafter required.
"Assignment and Acceptance" shall have the meaning assigned
thereto in Section 13.10.
"Available Commitment" means, as to any Lender at any time, an
amount equal to (a) such Lender's Commitment less (b) such Lender's Extensions
of Credit.
"Base Rate" means, at any time, the higher of (a) the Prime
Rate and (b) the sum of (i) the Federal Funds Rate plus (ii) 1/2 of 1%; each
change in the Base Rate shall take effect simultaneously with the corresponding
change or changes in the Prime Rate or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate
based upon the Base Rate as provided in Section 4.1(a).
"Borrower" means individually, and "Borrowers" means
collectively, JLG Industries, Inc., a Pennsylvania corporation, and each of its
Subsidiaries set forth on Schedule 1 hereto, each in its capacity as a borrower
hereunder.
"Business Day" means (a) for all purposes other than as set
forth in clause (b) below, any day other than a Saturday, Sunday or legal
holiday on which banks in Charlotte, North Carolina, are open for the conduct of
their commercial banking business, and (b) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
any LIBOR Rate Loan, any day that is a Business Day described in clause (a) and
that is also a day for trading by and between banks in Dollar deposits in the
London interbank market.
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"Capital Lease" means, with respect to JLG and its
Subsidiaries, any lease of any property that is required, in accordance with
GAAP, to be classified and accounted for as a capital lease on a Consolidated
balance sheet of JLG and its Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in
Section 11.1(i).
"Closing Date" means June 18, 1999.
"Code" means the Internal Revenue Code of 1986, and the rules
and regulations thereunder, each as amended, supplemented or otherwise modified.
"Collateral" shall have the meaning assigned to it in the
Collateral Security Documents.
"Collateral Security Documents" means the collective reference
to the Security Agreement, the Pledge Agreement and each other agreement or
writing pursuant to which any Borrower or any Subsidiary purports to pledge or
grant a security interest in any property or assets securing the Obligations or
any Person purports to guaranty the payment and/or performance of the
Obligations.
"Commitment" means, as to any Lender, the obligation of such
Lender to make Loans to and issue or participate in Letters of Credit issued for
the account of the Borrowers hereunder in an aggregate principal or face amount
at any time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 2 hereto, as the same may be reduced or modified at
any time or from time to time pursuant to the terms hereof.
"Commitment Percentage" means, as to any Lender at any time,
the ratio of (a) the amount of the Commitment of such Lender to (b) the
Aggregate Commitment of all of the Lenders.
"Consolidated" means, when used with reference to financial
statements or financial statement items of JLG and its Subsidiaries, such
statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.
"Contractual Currency" shall have the meaning set forth in
Section 2.9(c) hereof.
"Credit Facility" means the collective reference to the
Revolving Credit Facility and the L/C Facility.
"Currency Calculation Date" means (a) each date of delivery of
a Notice of Borrowing in accordance with Section 2.3 hereof and (b) each other
date on which the Administrative Agent shall, in its discretion, calculate the
Dollar Equivalent of the Alternate Currency Loan, other than on a Currency
Calculation Date as set forth in clause (a) of this definition.
"Customer Financing(s)" means any lease (including any
operating lease, financing lease, or synthetic lease) or any conditional sale
agreement, pursuant to which JLG or any of its Subsidiaries leases or
conditionally sells new or used equipment either manufactured
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or remanufactured by JLG or any of its Subsidiaries, other than (i) any open
accounts receivable from the sale of equipment or (ii) Monetization Assets that
are the subject of a Monetization Transaction.
"Customer Financing Value" means the aggregate outstanding
book value of all Customer Financings as reflected from time to time on JLG's
Consolidated financial statements.
"Debt" means, with respect to any Person at any date and
without duplication, the sum of the following calculated in accordance with
GAAP: (a) all liabilities, obligations and indebtedness, in each case for
borrowed money, having a stated maturity of greater than one year and including
without limitation indebtedness with such stated maturity during the year
preceding such stated maturity, including but not limited to obligations
evidenced by bonds, debentures, notes or other similar instruments of such
Person, (b) all obligations to pay the deferred purchase price of property or
services of such Person, (c) the capitalized amount of all obligations of such
Person as lessee under Capital Leases, (d) all Debt of any other Person secured
by a Lien on any asset of such Person, (e) all Guaranty Obligations of such
Person, (f) all obligations, contingent or otherwise, of such Person relative to
the face amount of letters of credit, whether or not drawn, including without
limitation any Reimbursement Obligation, and banker's acceptances issued for the
account of any such Person, (g) all net obligations incurred by such Person
pursuant to Hedging Agreements, (h) Operating Lease Value under Operating Leases
(including without limitation "synthetic" or similar leases) and (i) Recourse
Obligations; provided, that the term Debt shall not include Non-Recourse
Obligations whether or not classified as debt in accordance with GAAP.
"Default" means any of the events specified in Section 11.1
which with the passage of time, the giving of notice or any other condition,
would constitute an Event of Default.
"Dollars or $" means, unless otherwise qualified, dollars in
lawful currency of the United States.
"Dollar Equivalent" of any amount expressed in an Alternate
Currency means the equivalent amount of Dollars as of the most recent date on
which Administrative Agent in its reasonable judgment determines to make a
foreign exchange calculation, after giving effect to a conversion of such amount
of such Alternate Currency to Dollars at the buy spot rate quoted for wholesale
transactions by Administrative Agent at approximately 11:00 a.m. Charlotte time
on such Currency Calculation Date in accordance with its normal practice.
"EBITDA" means, for any Rolling Period, Consolidated net
income of JLG and its Subsidiaries for such period, plus interest expense,
taxes, depreciation and amortization for such period, plus the Orrville
Restructuring Charge, to the extent each has been deducted in determining net
income. Notwithstanding anything to the contrary set forth herein, if for any
Rolling Period, a Borrower shall have consummated an acquisition of a business,
EBITDA shall be calculated on a pro forma basis as if the acquisition had taken
place on the first day of such Rolling Period.
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"Effective Date" means the date of this Agreement or such
later Business Day upon which each condition described in Section 5.1 shall be
satisfied or waived.
"Eligible Assignee" means, with respect to any assignment of
the rights, interest and obligations of a Lender hereunder, a Person that is at
the time of such assignment (a) a commercial bank organized under the laws of
the United States or any state thereof, having combined capital and surplus in
excess of $500,000,000, (b) a commercial bank organized under the laws of any
other country that is a member of the Organization of Economic Cooperation and
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and that has total assets in
excess of $1,000,000,000, (d) already a Lender hereunder (whether as an original
party to this Agreement or as the assignee of another Lender), (e) the successor
(whether by transfer of assets, merger or otherwise) to all or substantially all
of the commercial lending business of the assigning Lender, or (f) any other
Person that has been approved in writing as an Eligible Assignee by the
Borrowers and the Administrative Agent.
"Employee Benefit Plan" means any employee benefit plan within
the meaning of Section 3(3) of ERISA which is maintained or sponsored by,
contributed to or covering employees of any Borrower or any ERISA Affiliate.
"Environmental Laws" means any and all foreign, federal, state
and local laws, statutes, ordinances, rules, regulations, requirements of
Governmental Approvals and orders of courts or Governmental Authorities,
relating to the protection of human health or the environment, including, but
not limited to, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous
Materials.
"Equipment Sale/Leaseback" means a lease arrangement whereby
Borrower(s) sell certain manufacturing or other equipment to a lessor and lease
back such equipment from the lessor.
"ERISA" means the Employee Retirement Income Security Act of
1974, and the rules and regulations thereunder, each as amended, supplemented or
otherwise modified.
"ERISA Affiliate" means any Person who together with any
Borrower or Subsidiary is treated as a single employer within the meaning of
Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA.
"Eurodollar Reserve Percentage" means, for any day, the
percentage (expressed as a decimal and rounded upwards, if necessary, to the
next higher 1/100th of 1%) which is in effect for such day as prescribed by the
Federal Reserve Board (or any successor) for determining the maximum reserve
requirement (including without limitation any basic, supplemental or emergency
reserves) in respect of eurocurrency liabilities or any similar category of
liabilities for a member bank of the Federal Reserve System in New York City.
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"Event of Default" means any of the events specified in
Section 11.1, provided that any requirement for passage of time, giving of
notice, or any other condition, has been satisfied.
"Extensions of Credit" means, as to any Lender at any time, an
amount equal to the sum of (a) the aggregate principal amount of all Revolving
Credit Loans made by such Lender then outstanding , (b) such Lender's Commitment
Percentage of the L/C Obligations then outstanding and (c) such Lender's
Commitment Percentage of the Swingline Loans then outstanding (if any).
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"Federal Funds Rate" means, the rate per annum (rounded
upwards, if necessary, to the next higher 1/100th of 1%) representing the daily
effective federal funds rate as quoted by the Administrative Agent and confirmed
in Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then Federal Funds Rate shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
the same as the rate for the most immediate preceding Business Day.
"Fiscal Year" means the fiscal year of JLG and its
Subsidiaries ending on July 31.
"GAAP" means generally accepted accounting principles, as
recognized by the American Institute of Certified Public Accountants and the
United States Financial Accounting Standards Board, as from time to time in
effect consistently applied and maintained on a consistent basis for the
Borrowers and their Subsidiaries throughout the period indicated.
"Governmental Approvals" means all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings with, and
reports to, all Governmental Authorities.
"Governmental Authority" means any nation, province, state or
political subdivision thereof, and any government or any Person exercising
executive, legislative, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Gradall" means Gradall Industries, Inc., a Delaware
corporation.
"Gradall Charge" means an amount equal to the reduction of
goodwill related to the acquisition of Gradall to be reflected pursuant to
Statement of Financial Accounting Standards No. 142 on the Consolidated balance
sheet of JLG and its Subsidiaries at July 31, 2002; provided, that the term
Gradall Charge shall not reflect any such reduction in excess of $140,000,000.
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"Guaranty Obligation" means, with respect to any Person,
without duplication: (i) any obligation, contingent or otherwise, of any such
Person pursuant to which such Person has directly or indirectly guaranteed any
Debt of any other Person (including without limitation MOSAs), (ii) any
obligation, direct or indirect, contingent or otherwise, of any such Person to
purchase or pay (or advance or supply funds for the purchase or payment of) any
Debt of any other Person (whether arising by virtue of partnership arrangements,
by agreement to keep well, to purchase assets, securities or services for less
than fair value, to take-or-pay, or to maintain financial statement condition or
otherwise) or (iii) any obligation, direct or indirect, contingent or otherwise,
of any such Person entered into primarily for the purpose of assuring in any
other manner the obligee of any Debt of any other Person of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part); provided, that the term Guaranty Obligation shall not include
endorsements for collection or deposit in the ordinary course of business. The
amount of any Guaranty Obligation (other than a MOSA) of any Borrower or
Subsidiary of a Borrower shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect of
which such Guaranty Obligation is made and (b) the maximum amount for which such
Person may be liable pursuant to the terms of the instrument embodying such
Guaranty Obligation, unless such primary obligation and maximum amount for which
such Person may be liable are not stated or determinable, in which case the
amount of such Guaranty Obligation shall be such Person's maximum reasonably
anticipated liability in respect thereof. The amount of any MOSA of any Borrower
or Subsidiary of a Borrower shall be deemed to be the lesser of (i) the
capitalized amount of all Supported Customer Financings, as determined in
accordance with GAAP, and (ii) if any, the stated limitation of the obligations
of JLG or any of its Subsidiaries pursuant to the MOSAs related to such Customer
Financings, in each case determined in a manner consistent with the
determination of contingent liabilities represented by MOSAs in connection with
the preparation of the Consolidated financial statements of JLG and its
Subsidiaries.
"Hazardous Materials" means any substances or materials (a)
which are or become defined as hazardous wastes, hazardous substances,
pollutants, contaminants, chemical substances or mixtures or toxic substances
under any Applicable Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human
health or the environment and are or become regulated by any Governmental
Authority, (c) the presence of which require investigation or remediation under
any Applicable Law, (d) the discharge or emission or release of which requires a
permit or license under any Applicable Law or other Governmental Approval, (e)
which are deemed to constitute a nuisance, a trespass or pose a health or safety
hazard to Persons or neighboring properties, (f) which consist of underground or
aboveground storage tanks, whether empty, filled or partially filled with any
substance, or (g) which contain, without limitation, asbestos, polychlorinated
biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum
derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic
gas.
"Hedging Agreement" means, with respect to any Person, any
agreement with respect to an interest rate, currency, commodity or credit
derivative swap, collar, cap, swaption, future, option, floor or a forward rate
or similar agreement, including without limitation any swap agreement (as
defined in 11 U.S.C. Section 101), or other agreement regarding the hedging of
interest rate, currency, commodity or credit risk exposure executed in
connection with hedging the interest rate, currency, commodity or credit
exposure of such Person, and any confirming
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letter executed pursuant to such hedging agreement, all as amended, restated or
otherwise modified.
"Indenture" means the Trust Indenture dated as of June 17,
2002, among JLG, certain of its Subsidiaries and The Bank of New York, as
trustee, relating to the issuance of the Senior Subordinated Debt, as it may be
amended, modified or supplemented from time to time.
"Interest Period" shall have the meaning assigned thereto in
Section 4.1(b).
"Investment" means any advance, loan, extension of credit or
capital contribution to, or purchase or other acquisition of any stock, bonds,
notes, debentures or other securities of or any assets constituting a business
unit of, or any other investment, in any other Person. The term Investment shall
not include any Guaranty Obligation.
"Issuing Lender" means Wachovia, in its capacity as issuer of
any Letter of Credit, or any successor thereto.
"JLG Rights Agreement" means the Rights Agreement dated as of
May 24, 2000 between JLG and American Stock Transfer and Trust Company, as it
may be amended from time to time.
"L/C Commitment" means the lesser of (a) Twenty-Five Million
Dollars ($25,000,000) and (b) the Aggregate Commitment.
"L/C Facility" means the letter of credit facility established
pursuant to Article III hereof.
"L/C Obligations" means at any time, an amount equal to the
sum of (a) the aggregate undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit which have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the
Lenders other than the Issuing Lender.
"Lender" means each Person executing this Agreement as a
Lender as set forth on the signature pages hereto and each Person that hereafter
becomes a party to this Agreement as a Lender pursuant to Section 13.10.
"Lending Office" means, with respect to any Lender, the office
of such Lender maintaining such Lender's Commitment Percentage of the Loans as
set forth in Schedule 2 or as specified from time to time.
"Letters of Credit" shall have the meaning assigned thereto in
Section 3.1.
"Leverage Ratio" means, as of the date of determination, the
ratio of Total Funded Debt as of such date to EBITDA for the Rolling Period
ending on such date.
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"LIBOR" means the rate of interest per annum determined on the
basis of the rate for deposits in Dollars or applicable Alternate Currency
deposits, as the case may be, in minimum amounts of at least $5,000,000 for a
period equal to the applicable Interest Period which appears for Dollar deposits
on the Dow Jones Markets page 3750 at approximately 11:00 a.m. (London time),
and for Alternate Currency deposits on Dow Jones Markets page 3750 at
approximately 11:00 a.m. (London time), two (2) Business Days prior to the first
day of the applicable Interest Period (rounded upward, if necessary, to the
nearest one-hundredth of one percent (1/100%)). If, for any reason, such rate
does not appear on Dow Jones Markets page 3750, then LIBOR shall be determined
by the Administrative Agent to be the arithmetic average (rounded upward, if
necessary, to the nearest one-hundredth of one percent (1/100%)) of the rate per
annum at which deposits in Dollars would be offered by first class banks in the
London interbank market to the Administrative Agent at approximately 11:00 a.m.
(London time) two (2) Business Days prior to the first day of the applicable
Interest Period for a period equal to such Interest Period and in an amount
substantially equal to the amount of the applicable Loan.
"LIBOR Rate" means a rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) determined by the Administrative
Agent pursuant to the following formula, and as may be further adjusted for MLA
Costs:
LIBOR Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate
based upon the LIBOR Rate as provided in Section 4.1(a).
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset.
"Liquidation Currency" shall have the meaning set forth in
Section 2.9(d) hereof.
"Loans" means the collective reference to the Revolving Credit
Loans and the Swingline Loans and "Loan" means any of such Loans.
"Loan Documents" means, collectively, this Agreement, the
Notes, the Applications, the Letters of Credit, the Collateral Security
Documents, and each other document, instrument, certificate and agreement (but
excluding any Hedging Agreement) executed and delivered by any Borrower, or any
Subsidiary in connection with this Agreement, all as may be amended, restated or
otherwise modified.
"Material Adverse Effect" means, with respect to the Borrowers
or any of their Subsidiaries, a material adverse change since July 31, 2001 on
the properties, business, prospects, operations or condition (financial or
otherwise) of JLG and its Subsidiaries (other than Monetization Subsidiaries)
taken as a whole or which would be reasonably likely to materially
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impair the ability of JLG or any of its Subsidiaries to perform any of its
respective material obligations under the Loan Documents in each case to which
it is a party.
"Material Contract" means (a) any contract or other agreement,
written or oral, of any Borrower or any Subsidiary involving monetary liability
of or to any such Person in an amount in excess of $10,000,000 per annum; or (b)
any other contract or agreement, written or oral, of any Borrower or any
Subsidiary, the failure to comply with which would reasonably be expected to
have a Material Adverse Effect.
"Material Subsidiary" means any Subsidiary which either: (i)
comprised five percent (5%) or more of the assets of JLG and its Subsidiaries on
a Consolidated basis as of the most recent date for which a balance sheet has
been delivered (or is required to have been delivered) hereunder, or (ii) was
responsible for five percent (5%) or more of EBITDA for the most recent Rolling
Period.
"MLA Cost" means, with respect to any Alternate Currency Loan
made by a Lender, the cost imputed to such Lender of compliance with the
Mandatory Liquid Assets requirements of the Bank of England during the Interest
Period applicable to such Alternate Currency Loan, expressed as a rate per annum
and determined in accordance with the formula set forth on Schedule 3 hereto.
"Monetization Assets" means (i) accounts receivable, Customer
Financings, instruments, chattel paper, obligations, general intangibles and
other similar assets, in each case relating to inventory or services of the
Borrowers and their Subsidiaries, (ii) equipment and equipment residuals
relating to any of the foregoing, (iii) related contractual rights, guarantees,
letters of credit, security interests, liens, insurance proceeds, collections
and other related assets and (iv) proceeds of all of the foregoing.
"Monetization Subsidiary" means a direct or indirect
Subsidiary of JLG formed in connection with a Monetization Transaction.
"Monetization Transaction" means any transaction or series of
transactions pursuant to which any Borrower sells, conveys, assigns or otherwise
transfers for value any Monetization Assets to any Monetization Subsidiary or to
any other Person that is not an Affiliate of a Borrower, or creates a security
interest in Monetization Assets in favor of any Monetization Subsidiary or any
other Person that is not an Affiliate of a Borrower to secure Debt incurred in
connection with such Monetization Transaction.
"MOSAs" means a mandate of sale agreement, remarketing
agreement, guaranty or similar agreement or instrument entered into by JLG or
any of its Subsidiaries as a credit enhancement of financing obtained by
customers of JLG or any of its Subsidiaries to finance the acquisition by such
customers of equipment manufactured by JLG or any of its Subsidiaries.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
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"Net Worth" means, as of any date of determination, the
Consolidated total assets of JLG and its Subsidiaries, less the Consolidated
total liabilities and deferred items of JLG and its Subsidiaries, in each case
as defined in accordance with GAAP.
"Non-Recourse Obligations" means, with respect to any Person,
the portion of the obligations of such Person incurred in connection with a
Monetization Transaction, and which are reflected as liabilities on the
Consolidated balance sheet of JLG and its Subsidiaries in accordance with GAAP,
in respect of which the sole contractual recourse for collection of such
obligations consists of (i) the Monetization Assets subject to such Monetization
Transaction, (ii) the capital stock of a Monetization Subsidiary and (iii)
recourse arising from representations, warranties, obligations, covenants and
indemnities entered into by such Person which are customary in Monetization
Transactions.
"Notes" means the collective reference to the Revolving Credit
Notes and Swingline Note and "Note" means any of such Notes.
"Notice of Account Designation" shall have the meaning
assigned thereto in Section 2.3(b).
"Notice of Borrowing" shall have the meaning assigned thereto
in Section 2.3(a).
"Notice of Conversion/Continuation" shall have the meaning
assigned thereto in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned thereto
in Section 2.4(c).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
the L/C Obligations, (c) all payment and other obligations owing by the
Borrowers to any Lender or the Administrative Agent under any Hedging Agreement
with any Lender (which such Hedging Agreement is permitted hereunder), and (d)
all other fees and commissions (including reasonable attorney's fees), charges,
indebtedness, loans, liabilities, financial accommodations, obligations,
covenants and duties owing by the Borrowers to the Lenders or the Administrative
Agent, of every kind, nature and description, direct or indirect, absolute or
contingent, due or to become due, liquidated or unliquidated, and whether or not
evidenced by any note, in each case pursuant to the terms of this Agreement, any
Note, any Letter of Credit, any Collateral Security Document, or any of the
other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning
assigned thereto in Section 7.2.
"Operating Lease" means individually, and "Operating Leases"
means collectively, an operating lease under GAAP that has a fixed term of no
less than two years, which fixed term may not be cancelled or otherwise
terminated at the option of JLG or any of its Subsidiaries, as lessee, earlier
than the latest possible date of termination without the imposition of a penalty
on such lessee.
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"Operating Lease Value" means, as of any date of
determination, the amount of all specified payments in the nature of rent
required to be made by JLG or any of its Subsidiaries, as lessee, under the
terms of any Operating Lease during the remaining fixed term thereof, discounted
to present value using a discount rate of ten percent (10%).
"Original Credit Agreement" shall have the meaning assigned
thereto in the preamble.
"Orrville Restructuring Charge" means the restructuring charge
not exceeding $7,700,000 incurred in connection with the closing of the
Borrowers' facility in Orrville, Ohio as further described on Schedule 4 hereto.
"Other Taxes" shall have the meaning assigned thereto in
Section 4.11(b).
"Overdraft Facility" means the agreement evidencing the
indebtedness of JLG, Fulton International, Inc., JLG Equipment Services, Inc.,
JLG Manufacturing, LLC and AFS in order to provide for banking overdraft
protection and other general corporate needs.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which is maintained or sponsored by, contributed to,
or covering employees of any Borrower, Subsidiary or ERISA Affiliate.
"Person" means an individual, corporation, limited liability
company, partnership, association, trust, business trust, joint venture, joint
stock company, pool, syndicate, sole proprietorship, unincorporated
organization, Governmental Authority or any other form of entity or group
thereof.
"PIDA" means the Pennsylvania Industrial Development
Authority.
"PIDA Debt" means the secured indebtedness of a Borrower to
PIDA, the Bedford County Pennsylvania Industrial Authority and the Fulton County
Pennsylvania Industrial Authority in the maximum aggregate principal amount of
$3,615,198 as evidenced by the following loan agreements: (i) Loan Agreement
with PIDA dated as of April 18, 1989 in the original principal amount of
$465,198; (ii) Loan Agreement with PIDA dated as of May 28, 1997 in the original
principal amount of $2,000,000; (iii) Loan Agreement with Bedford County
Pennsylvania Industrial Authority dated as of July 10, 1989 in the original
principal amount of $369,000; and (iv) Loan Agreement with Fulton County
Pennsylvania Industrial Authority dated as of April 18, 1989 in the original
principal amount of $781,000.
"Pledge Agreement" means, collectively, the Pledge Agreement
dated October 4, 2001 by JLG in favor of Administrative Agent, as amended, and
any additional pledge agreements required under Section 8.12 hereof, as each
such agreement may be amended, restated or modified from time to time.
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"Prime Rate" means, at any time, the rate of interest per
annum publicly announced from time to time by Wachovia as its prime rate. Each
change in the Prime Rate shall be effective as of the opening of business on the
day such change in the Prime Rate occurs. The parties hereto acknowledge that
the rate announced publicly by Wachovia as its Prime Rate is an index or base
rate and shall not necessarily be its lowest or best rate charged to its
customers or other banks.
"Received Currency" shall have the meaning set forth in
Section 2.9(c) hereof.
"Recourse Obligations" means, with respect to any Person, all
obligations incurred in connection with Monetization Transactions which are not
Non-Recourse Obligations and which are reflected as liabilities or reserves on
the Consolidated balance sheet of JLG and its Subsidiaries in accordance with
GAAP.
"Redenominate" means the conversion of each Alternate
Currency Loan from one Alternate Currency into Dollars.
"Register" shall have the meaning assigned thereto in Section
13.10(d).
"Reimbursement Obligation" means the obligation of the
Borrowers to reimburse the Issuing Lender pursuant to Section 3.5 for amounts
drawn under Letters of Credit.
"Rental Fleet Sale/Leaseback" means a lease arrangement
whereby Borrower(s) sell a pool of rental equipment to a lessor and lease back
such equipment from the lessor.
"Required Lenders" means, at any date, any combination of
holders of at least fifty-one percent (51%) of the aggregate unpaid principal
amount of the Notes, or if no amounts are outstanding under the Notes, any
combination of Lenders whose Commitment Percentages aggregate to at least
fifty-one percent (51%).
"Responsible Officer" means any of the following: the chief
executive officer, chief financial officer, director of treasury services or
general counsel of JLG or any other officer of JLG designated in writing by any
of the foregoing officers and reasonably acceptable to Administrative Agent.
"Revolving Credit Facility" means the revolving credit
facility established pursuant to Article II hereof.
"Revolving Credit Loans" means any revolving loan made to the
Borrowers pursuant to Section 2.1, and all such revolving loans collectively as
the context requires.
"Revolving Credit Notes" means the collective reference to the
Revolving Credit Notes made by the Borrowers (and joined by AFS pursuant to the
Joinders to Revolving Credit Note by AFS in favor of each Lender, in each case
dated October 4, 2001), payable to the order of each Lender, substantially in
the form of Exhibit A-1 to the Original Credit Agreement evidencing the
Revolving Credit Facility, and any amendments and modifications thereto, any
substitutes therefore, and any replacements, restatements, renewals or
extensions thereof, in whole or in part; "Revolving Credit Note" means any of
such Revolving Credit Notes.
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"Rolling Period" means, as of any date of determination, the
most recent four (4) consecutive fiscal quarters of JLG and its Consolidated
Subsidiaries ending on or before such date.
"Sale/Leaseback Transferred Assets" means, collectively: (i)
any assets leased by a Borrower pursuant to an Equipment Sale/Leaseback or
Rental Fleet Sale/Leaseback transaction, and (ii) in connection with a Rental
Fleet Sale/Leaseback transaction, the Borrowers' accounts, proceeds of accounts,
lease agreements and lease payments related to such assets.
"Security Agreement" means the Security Agreement dated as of
October 4, 2001 by and among Borrowers and Administrative Agent, as amended and
as it may be further amended, restated or modified from time to time.
"Senior Funded Debt" means, as of the date of determination,
Total Funded Debt, less the aggregate outstanding amount of Senior Subordinated
Debt as of such date.
"Senior Leverage Ratio" means, as of the date of
determination, the ratio of Senior Funded Debt as of such date to EBITDA, for
the Rolling Period ending on such date.
"Senior Subordinated Debt" or "Subordinated Debt" means the
senior subordinated debt of JLG incurred in connection with the issuance of the
JLG Industries, Inc. 8 3/8% Senior Subordinated Notes Due June 15, 2012, not
exceeding Two Hundred Fifty Million Dollars ($250,000,000) in aggregate
principal amount outstanding at any time.
"Subsidiary" means as to any Person, any corporation,
partnership, limited liability company or other entity of which more than fifty
percent (50%) of the outstanding capital stock or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other managers of such corporation, partnership, limited liability company or
other entity is at the time, directly or indirectly, owned by or the management
is otherwise controlled by, such Person (irrespective of whether, at the time,
capital stock or other ownership interests of any other class or classes of such
corporation, partnership, limited liability company or other entity shall have
or might have voting power by reason of the happening of any contingency).
Unless otherwise qualified references to "Subsidiary" or "Subsidiaries" herein
shall refer to those of the Borrowers.
"Supported Customer Financing" means financing obtained by
customers of JLG or any of its Subsidiaries in respect of which JLG or any of
its Subsidiaries has entered into a MOSA.
"Swingline Commitment" means the lesser of (a) Twenty Million
Dollars ($20,000,000) and (b) the Aggregate Commitment.
"Swingline Lender" means Wachovia in its capacity as swingline
lender hereunder.
"Swingline Loan" means any swingline loan made by the
Swingline Lender to the Borrowers pursuant to Section 2.2, and all such
swingline loans collectively as the context requires.
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"Swingline Note" means the Swingline Note made by the
Borrowers (and joined by AFS pursuant to the Joinder to Swingline Note dated
October 4, 2001 by AFS in favor of the Swingline Lender, payable to the order of
the Swingline Lender), substantially in the form of Exhibit A-2 to the Original
Credit Agreement, evidencing the Swingline Loans, and any amendments and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extensions thereof, in whole or in part.
"Swingline Termination Date" means the first to occur of (a)
the resignation of Wachovia as Administrative Agent in accordance with Section
12.9 and (b) the Termination Date.
"Taxes" shall have the meaning assigned thereto in Section
4.11(a).
"Termination Date" means the earliest of: (i) June 18, 2004;
(ii) the date of termination by the Borrowers pursuant to Section 2.6(a); or
(iii) the date of termination by the Administrative Agent on behalf of the
Lenders pursuant to Section 11.2(a).
"Termination Event" means: (a) a reportable event described in
Section 4043 of ERISA for which the requirement of a 30-day notice to the PBGC
is not waived with respect to the Borrower or any ERISA Affiliate, or (b) the
withdrawal of any Borrower or any ERISA Affiliate from a Pension Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, or (c) with respect to a Pension Plan that does not satisfy
the requirements for a standard termination under Section 4041(b) of ERISA, the
termination of such a Pension Plan, the filing of a notice of intent to
terminate such a Pension Plan or the treatment of such a Pension Plan amendment
as a termination under Section 4041 of ERISA, or (d) the institution of
proceedings to terminate, or the appointment of a trustee with respect to, any
Pension Plan by the PBGC, or (e) any other event or condition which would
constitute grounds under Section 4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan, or (f) the partial or
complete withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer
Plan but only if such partial or complete withdrawal results in the Borrower or
ERISA Affiliate incurring a withdrawal liability under Section 4201 of ERISA, or
(g) the imposition of a Lien on the property or assets of the Borrower or an
ERISA Affiliate pursuant to Section 412 of the Code or Section 302 of ERISA, or
(h) any event or condition which results in the reorganization or insolvency of
a Multiemployer Plan in which the Borrower or any ERISA Affiliate has an
obligation to contribute under Sections 4241 or 4245 of ERISA, or (i) any event
or condition which results in the termination of a Multiemployer Plan in which
the Borrower or any ERISA Affiliate has an obligation to contribute under
Section 4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan in which the Borrower or any ERISA Affiliate has
an obligation under Section 4042 of ERISA.
"Total Funded Debt" means, as of the date of determination,
with respect to JLG and its Consolidated Subsidiaries, the aggregate outstanding
principal amount of all Debt described in clauses (a), (c), (h) (only to the
extent that an Operating Lease is a "synthetic" lease as defined in accordance
with GAAP) and (i) of the definition of Debt set forth in this Section 1.1,
Reimbursement Obligations and the aggregate outstanding principal amount of all
indebtedness for borrowed money having a maturity of one year or less.
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"Uniform Customs" means, in the case of: (a) standby letters
of credit, the International Standby Practices - ISP98 (1998), International
Chamber of Commerce Publication No. 590, as the same may be amended or revised
from time to time, and (b) documentary Letters of Credit, the Uniform Customs
and Practice for Documentary Credits (1994 Revision), International Chamber of
Commerce Publication No. 500, as the same may be amended or revised from time to
time.
"UCC" means the Uniform Commercial Code as in effect in the
Commonwealth of Pennsylvania, as amended, restated or otherwise modified.
"United States" means the United States of America.
"Wachovia" means Wachovia Bank, National Association (f/k/a
First Union National Bank), a national banking association, and its successors.
"Wholly-Owned" means, with respect to a Subsidiary, that all
of the shares of capital stock or other ownership interests of such Subsidiary
are, directly or indirectly, owned or controlled by a Borrower and/or one or
more of a Borrower's Wholly-Owned Subsidiaries.
"Working Capital Facility" means the revolving credit facility
in the maximum principal amount of $100,000,000 evidenced by the Working Capital
Credit Agreement dated December 16, 1999 by and among Borrowers, the lenders
listed on Schedule 2 thereto, Administrative Agent and Syndication Agent, as
amended by Amendment No. 1 to and Consent and Waiver under Credit Agreement
dated June 30, 2000 and Amendment No. 2 and Joinder to Credit Agreement dated
October 4, 2001, and as may be further amended from time to time.
Section 1.2. General. Unless otherwise specified, a reference
in this Agreement to a particular section, subsection, Schedule or Exhibit is a
reference to that section, subsection, Schedule or Exhibit of this Agreement.
Wherever from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and plural, and pronouns stated in
the masculine, feminine or neuter gender shall include the masculine, the
feminine and the neuter. Any reference herein to Charlotte time shall refer to
the applicable time of day in Charlotte, North Carolina.
Section 1.3. Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise
defined therein, all capitalized terms defined in this Agreement shall have the
defined meanings when used in the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) Accounting Terms. Except as otherwise
provided herein, financial and accounting terms used in the foregoing
definitions or elsewhere in this Agreement shall be defined in accordance with
GAAP. In the event that any future change in GAAP, in and of itself, materially
affects the Borrowers' compliance with any financial covenant contained herein
Borrowers and the Administrative Agent shall use commercially reasonable efforts
to modify such covenant in order to account for such change and to secure for
Lenders the intended benefits of such covenant.
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(c) Miscellaneous. The words hereof, herein and
hereunder and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
REVOLVING CREDIT FACILITY
Section 2.1. Revolving Credit Loans. Subject to the terms and
conditions of this Agreement, each Lender severally agrees to make Revolving
Credit Loans to the Borrowers from time to time from the Closing Date through
the Termination Date as requested by the Borrowers in accordance with the terms
of Section 2.3; provided, that (a) the aggregate principal amount of all
outstanding Revolving Credit Loans (after giving effect to any amount requested)
shall not exceed the Aggregate Commitment less the sum of all outstanding
Swingline Loans and L/C Obligations and (b) the principal amount of outstanding
Revolving Credit Loans from any Lender to the Borrowers shall not at any time
exceed such Lender's Commitment less such Lender's Commitment Percentage of
outstanding L/C Obligations and Swingline Loans (if any). Each Revolving Credit
Loan by a Lender shall be in a principal amount equal to such Lender's
Commitment Percentage of the aggregate principal amount of Revolving Credit
Loans requested on such occasion. Subject to the terms and conditions hereof,
the Borrowers may borrow, repay and reborrow Revolving Credit Loans hereunder
until the Termination Date. The obligations of Borrowers under the Revolving
Credit Loans are and shall be joint and several.
Section 2.2. Swingline Loans.
(a) Availability. Subject to the terms and
conditions of this Agreement, the Swingline Lender agrees to make Swingline
Loans to the Borrowers from time to time from the Closing Date through, but not
including, the Swingline Termination Date; provided, that the aggregate
principal amount of all outstanding Swingline Loans (after giving effect to any
amount requested), shall not exceed the lesser of (i) the Aggregate Commitment
less the sum of all outstanding Revolving Credit Loans and the L/C Obligations
and (ii) the Swingline Commitment. The obligations of Borrowers under the
Swingline Loans are and shall be joint and several.
(b) Refunding.
(i) Swingline Loans shall be refunded by the
Lenders on demand by the Swingline Lender. Such refundings shall be made by the
Lenders in accordance with their respective Commitment Percentages and shall
thereafter be reflected as Revolving Credit Loans of the Lenders on the books
and records of the Administrative Agent. Each Lender shall fund its respective
Commitment Percentage of Revolving Credit Loans as required to repay Swingline
Loans outstanding to the Swingline Lender upon demand by the Swingline Lender
but in no event later than 2:00 p.m. (Charlotte time) on the next succeeding
Business Day after such demand is made. No Lender's obligation to fund its
respective Commitment Percentage of a Swingline Loan shall be affected by any
other Lender's failure to fund its Commitment Percentage of a Swingline Loan,
nor shall any Lender's Commitment Percentage be increased as a result of any
such failure of any other Lender to fund its Commitment Percentage.
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(ii) The Borrowers shall pay to the Swingline
Lender within one (1) Business Day following demand the full amount of such
outstanding Swingline Loans if amounts received from the Lenders other than the
Swingline Lender are not sufficient to repay in full the portion of the
outstanding Swingline Loans in excess of the Commitment Percentage of the
Swingline Lender (the "Excess Swingline Amount") requested or required to be
refunded. In addition, the Borrowers hereby authorize the Administrative Agent
to charge any account maintained with the Swingline Lender (up to the amount
available therein) in order to immediately pay the Swingline Lender the amount
of such Swingline Loans to the extent amounts received from the Lenders are not
sufficient to repay in full the Excess Swingline Amount requested or required to
be refunded. If any portion of any such amount paid to the Swingline Lender
shall be recovered by or on behalf of the Borrowers from the Swingline Lender in
bankruptcy or otherwise, the loss of the amount so recovered shall be ratably
shared among all the Lenders in accordance with their respective Commitment
Percentages (unless the amounts so recovered by or on behalf of the Borrowers
pertain to a Swingline Loan extended after the occurrence and during the
continuance of an Event of Default of which the Administrative Agent has
received actual notice and which such Event of Default has not been waived by
the Required Lenders or the Lenders, as applicable).
(iii) Each Lender acknowledges and agrees that
its obligation to refund Swingline Loans in accordance with the terms of this
Section 2.2 is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, non-satisfaction of the
conditions set forth in Article V. Further, each Lender agrees and acknowledges
that if prior to the refunding of any outstanding Swingline Loans pursuant to
this Section 2.2, one of the events described in Section 11.1(j) or (k) shall
have occurred, each Lender will, on the date the applicable Revolving Credit
Loan would have been made, purchase an undivided participating interest in the
Swingline Loan to be refunded in an amount equal to its Commitment Percentage of
the aggregate amount of such Swingline Loan. Each Lender will immediately
transfer to the Swingline Lender, in immediately available funds, the amount of
its participation and upon receipt thereof the Swingline Lender will deliver to
such Lender a certificate evidencing such participation dated the date of
receipt of such funds and for such amount. Whenever, at any time after the
Swingline Lender has received from any Lender such Lender's participating
interest in a Swingline Loan, the Swingline Lender receives any payment on
account thereof, the Swingline Lender will distribute to such Lender its
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded).
Section 2.3. Procedure for Advances of Revolving Credit and
Swingline Loans.
(a) Requests for Borrowing. JLG, on behalf of the
Borrowers, shall give the Administrative Agent irrevocable prior written notice
in the form attached hereto as Exhibit A (a "Notice of Borrowing") not later
than 11:00 a.m. (Charlotte time) (i) on the same Business Day as each Base Rate
Loan (including without limitation each Swingline Loan) and (ii) on the third
(3rd) Business Day before each LIBOR Rate Loan of its intention to borrow,
specifying (A) the date of such borrowing, which shall be a Business Day, (B)
the amount of such borrowing, which shall be in an amount equal to the amount of
the Aggregate Commitment then available to the Borrowers, or if less, (x) with
respect to Base Rate Loans (other than Swingline Loans) in an aggregate
principal amount of $1,000,000 or a whole multiple of
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$250,000 in excess thereof, (y) with respect to LIBOR Rate Loans in an aggregate
principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess
thereof and (z) with respect to Swingline Loans in an aggregate principle amount
of $500,000 or a whole multiple of $100,000 in excess thereof, (C) whether such
Loan is to be a Revolving Credit Loan or Swingline Loan, (D) in the case of a
Revolving Credit Loan whether the Loans are to be LIBOR Rate Loans or Base Rate
Loans, (E) in the case of a LIBOR Rate Loan, the duration of the Interest Period
applicable thereto and (F) if such Loan is not to be denominated in Dollars, the
Alternate Currency in which such Loan is to be denominated. Notices received
after 11:00 a.m. (Charlotte time) shall be deemed received on the next Business
Day. The Administrative Agent shall promptly notify the Lenders of each Notice
of Borrowing.
(b) Authority of JLG. Each of the Borrowers hereby
irrevocably authorizes and requests that JLG execute all Notices of Borrowing,
make all elections as to interest rates and take any other actions required of
or permitted by the Borrowers under this Agreement, on its respective behalf, in
each case with the same force and effect as if such Borrower had executed such
Notice of Borrowing, made such election or taken such other action itself. Any
request, application or other communication by JLG may be relied on by the
Administrative Agent and the Lenders, and any communication by the
Administrative Agent and Lenders shall be made to JLG, and shall be binding on
each Borrower, jointly and severally, as fully as if such request, application
or other communication were made directly by or to each such Borrower.
(c) Disbursement of Revolving Credit and Swingline
Loans. Not later than 2:00 p.m. (Charlotte time) on the proposed borrowing date,
(i) each Lender will make available to the Administrative Agent, for the account
of the Borrowers, at the office of the Administrative Agent in funds immediately
available to the Administrative Agent, such Lender's Commitment Percentage of
the Revolving Credit Loans to be made on such borrowing date and (ii) the
Swingline Lender will make available to the Administrative Agent, for the
account of the Borrowers, at the office of the Administrative Agent in funds
immediately available to the Administrative Agent, the Swingline Loans to be
made on such borrowing date. The Borrowers hereby irrevocably authorize the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.3 in immediately available funds by crediting or
wiring such proceeds to the deposit account of the Borrowers identified in the
most recent notice substantially in the form of Exhibit B hereto (a "Notice of
Account Designation") delivered by the Borrowers to the Administrative Agent or
as may be otherwise agreed upon by the Borrowers and the Administrative Agent
from time to time. Subject to Section 4.7 hereof, the Administrative Agent shall
not be obligated to disburse the portion of the proceeds of any Revolving Credit
Loan requested pursuant to this Section 2.3 to the extent that any Lender has
not made available to the Administrative Agent its Commitment Percentage of such
Loan. Revolving Credit Loans to be made for the purpose of refunding Swingline
Loans shall be made by the Lenders as provided in Section 2.2(b).
Section 2.4. Repayment of Loans.
(a) Repayment on Termination Date. The Borrowers
shall repay the outstanding principal amount of (i) all Revolving Credit Loans
in full on the Termination Date,
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and (ii) all Swingline Loans in accordance with Section 2.2(b), together, in
each case, with all accrued but unpaid interest thereon.
(b) Mandatory Repayment of Excess Loans. If at any
time the outstanding principal amount of all Loans exceeds the Aggregate
Commitment less the sum of all outstanding L/C Obligations and Swingline Loans,
the Borrowers shall repay immediately upon notice from the Administrative Agent,
by payment to the Administrative Agent for the account of the Lenders, Revolving
Credit Loans and Swingline Loans, and furnish cash collateral reasonably
satisfactory to the Administrative Agent and/or repay the L/C Obligations in an
amount equal to such excess with each such repayment applied first to the
principal amount of outstanding Swingline Loans, second to the principal amount
of the L/C Obligations and third to the principal amount of outstanding
Revolving Credit Loans. Such cash collateral shall be applied in accordance with
Section 11.2(b). Each such repayment shall be accompanied by any amount required
to be paid pursuant to Section 4.9 hereof.
(c) Optional Repayments. The Borrowers may at any
time and from time to time repay the Loans, in whole or in part, upon at least
three (3) Business Days irrevocable notice to the Administrative Agent with
respect to LIBOR Rate Loans and same Business Day irrevocable notice with
respect to Base Rate Loans, including without limitation Swingline Loans, in the
form attached hereto as Exhibit C (a "Notice of Prepayment") specifying the date
and amount of repayment and whether the repayment is of LIBOR Rate Loans or Base
Rate Loans, including without limitation Swingline Loans, or a combination
thereof, and, if of a combination thereof, the amount allocable to each. Upon
receipt of such notice, the Administrative Agent shall promptly notify each
Lender. If any such notice is given, the amount specified in such notice shall
be due and payable on the date set forth in such notice. Partial repayments
shall be in a whole multiple of $250,000 with respect to Base Rate Loans (other
than Swingline Loans), $3,000,000 or a whole multiple of $1,000,000 in excess
thereof with respect to LIBOR Rate Loans and $500,000 or a whole multiple of
$100,000 in excess thereof with respect to Swingline Loans. Each such repayment
with respect to any LIBOR Rate Loan shall be accompanied by any amount required
to be paid pursuant to Section 4.9 hereof. Any repayment of the Loans will not
affect the Borrowers' obligation to continue making payments as required under
any Hedging Agreement.
(d) Limitation on Repayment of LIBOR Rate Loans. The
Borrowers may not repay any LIBOR Rate Loan on any day other than on the last
day of the Interest Period applicable thereto unless such repayment is
accompanied by any amount required to be paid pursuant to Section 4.9 hereof.
Section 2.5. Notes.
(a) Revolving Credit Notes. Each Lender's Revolving
Credit Loans and the obligation of the Borrowers to repay such Revolving Credit
Loans are evidenced by a separate Revolving Credit Note executed by the
Borrowers payable to the order of such Lender in connection with the Original
Credit Agreement, representing the Borrowers' obligation to pay such Lender's
Commitment or, if less, the aggregate unpaid principal amount of all Revolving
Credit Loans made and to be made by such Lender to the Borrowers hereunder, plus
interest and all other fees, charges and other amounts due thereon in accordance
with the terms of this
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Agreement or any other Loan Document. Each Revolving Credit Note bears interest
on the unpaid principal amount thereof at the applicable interest rate per annum
specified in Section 4.1.
(b) Swingline Notes. The Swingline Loans and the
obligations of the Borrowers to repay such Swingline Loans are evidenced by a
Swingline Note executed by the Borrowers payable to the order of the Swingline
Lender in connection with the Original Credit Agreement, representing the
Borrowers' obligation to pay the Swingline Lender's Swingline Commitment or, if
less, the aggregate unpaid principal amount of all Swingline Loans made by the
Swingline Lender to the Borrowers hereunder, plus interest on such principal
amounts and all other fees, charges and other amounts due thereon in accordance
with the terms of this Agreement or any other Loan Document. The Swingline Note
bears interest on the unpaid principal amount thereof at the applicable interest
rate per annum specified in Section 4.1.
Section 2.6. Permanent Reduction of the Aggregate Commitment.
(a) The Borrowers shall have the right at any time
and from time to time, upon at least five (5) Business Days prior written notice
to the Administrative Agent, to permanently reduce, without premium or penalty,
(i) the entire Aggregate Commitment at any time or (ii) portions of the
Aggregate Commitment, from time to time, in an aggregate principal amount not
less than $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
(b) Each permanent reduction permitted pursuant to
this Section 2.6 shall be accompanied by a payment of principal sufficient to
reduce the aggregate outstanding Extensions of Credit of the Lenders after such
reduction to the Aggregate Commitment as so reduced and if the Aggregate
Commitment as so reduced is less than the aggregate amount of all outstanding
Letters of Credit, the Borrowers shall be required to deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. Any
reduction of the Aggregate Commitment to zero shall be accompanied by payment of
all outstanding Obligations (and furnishing of cash collateral satisfactory to
the Administrative Agent for all L/C Obligations) and shall result in the
termination of the Commitments and Credit Facility. Such cash collateral shall
be applied in accordance with Section 11.2(b). If the reduction of the Aggregate
Commitment requires the repayment of any LIBOR Rate Loan, such repayment shall
be accompanied by any amount required to be paid pursuant to Section 4.9 hereof.
Section 2.7. Termination of Credit Facility. The Credit Facility
shall terminate on the Termination Date.
Section 2.8. Use of Proceeds. The Borrowers shall use the
proceeds of the Extensions of Credit for working capital and general corporate
requirements of the Borrowers and their Subsidiaries, including without
limitation the payment of certain fees and expenses incurred in connection with
the transactions contemplated hereby.
Section 2.9. Alternate Currency Options.
(a) (i) All Revolving Credit Loans shall be made
in Dollars or, at Borrowers' request, in any other freely convertible,
transferable foreign currency available to all Lenders (each an "Alternate
Currency"); provided, however, that the aggregate outstanding
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amount of the Revolving Credit Loans made in Alternate Currencies shall not
exceed at any time the Dollar Equivalent of One Hundred Million Dollars
($100,000,000). Each Lender's Commitment Percentage of each Alternate Currency
Loan shall be determined by reference to its Dollar Equivalent on the date each
such Alternate Currency Loan is made. As to any Alternate Currency Loan, each
Lender may elect to fulfill its commitment to make such Alternate Currency Loan
by causing an Alternate Lending Office to make such Alternate Currency Loan;
provided, however, that no such election shall be made if as a result thereof
any Borrower would be required to pay United States withholding taxes or any
additional amounts.
(ii) Each Alternate Currency Loan shall be a
LIBOR Rate Loan; provided, however, that JLG, on behalf of the Borrowers, shall
give a Notice of Borrowing to the Administrative Agent under Section 2.3(a)(ii)
on the fourth (4th) Business Day before each Alternate Currency Loan.
(b) If, after the date of this Agreement, any
enactment, promulgation or adoption of or any change in any applicable law, rule
or regulation, or any change in the interpretation or administration thereof by
a governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by Lenders with any
guideline, request or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency shall make it unlawful or
impossible for Lenders to make or maintain or fund Loans in the applicable
Alternate Currency, Administrative Agent shall notify Borrowers. Upon receipt of
such notice, the applicable Alternate Currency Loan shall be repaid and/or
converted to an available Alternate Currency or Dollars on either: (i) the last
day of the then current Interest Period for the affected Alternate Currency
Loan, if Lenders may lawfully continue to maintain a Loan at such Alternate
Currency to such day, or (ii) immediately, if Lenders may not lawfully continue
to so maintain such Alternate Currency Loan.
(c) All payments hereunder shall be made in Dollars
or an Alternate Currency, as the case may be, based on the currency in which a
Loan is made. Such requirement is of the essence hereof. If payment is not made
in the currency due under this Agreement (the "Contractual Currency") or if any
court or tribunal shall render a judgment or order for the payment of amounts
due hereunder or under the Notes and such judgment is expressed in a currency
other than the Contractual Currency, the Borrowers shall indemnify and hold the
Lenders harmless against any deficiency incurred by the Lenders with respect to
the amount received by the Lenders to the extent the rate of exchange at which
the Contractual Currency is convertible into the currency actually received or
the currency in which the judgment is expressed (the "Received Currency") is not
the reciprocal of the rate of exchange at which Administrative Agent would be
able to purchase the Contractual Currency with the Received Currency, in each
case on the Business Day following receipt of the Received Currency in
accordance with normal banking procedures. If the court or tribunal has fixed
the date on which the rate of exchange is determined for the conversion of the
judgment currency into the Contractual Currency (the "Conversion Date") and if
there is a change in the rate of exchange prevailing between the Conversion Date
and the date of receipt by the Lenders, then the Borrowers will, notwithstanding
such judgment or order, pay such additional amount (if any) as may be necessary
to ensure that the amount paid in the Received Currency when converted at the
rate of exchange prevailing on the date of receipt will produce the amount then
due to the Lenders from the Borrowers hereunder in the Contractual Currency.
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(d) If any Borrower shall wind up, liquidate,
dissolve or become a debtor in bankruptcy while there remains outstanding: (i)
any amounts owing to the Lenders hereunder or under the Notes, (ii) any damages
owing to the Lenders in respect of a breach of any of the terms hereof, or (iii)
any judgment or order rendered in respect of such amounts or damages, the
Borrowers shall indemnify and hold the Lenders harmless against any deficiency
with respect to the Contractual Currency in the amounts received by the Lenders
arising or resulting from any variation as between: (i) the rate of exchange at
which the Contractual Currency is converted into another currency (the
"Liquidation Currency") for purposes of such winding-up, liquidation,
dissolution or bankruptcy with regard to the amount in the Contractual Currency
due or contingently due hereunder or under the Notes or under any judgment or
order to which the relevant obligations hereunder or under the Notes shall have
been merged and (ii) the rate of exchange at which Administrative Agent could,
in accordance with normal banking procedures, be able to purchase the
Contractual Currency with the Liquidation Currency at the earlier of (A) the
date of payment of such amounts or damages and (B) the final date or dates for
the filing of proofs of a claim in a winding-up, liquidation, dissolution or
bankruptcy. As used in the preceding sentence, the "final date" or dates for the
filing of proofs of a claim in a winding-up, liquidation, dissolution or
bankruptcy shall be the date fixed by the liquidator under the applicable law as
being the last practicable date as of which the liabilities of the applicable
Borrower may be ascertained for such winding-up, liquidation, dissolution or
bankruptcy before payment by the liquidator or other appropriate person in
respect thereof.
(e) The Borrowers agree to indemnify the Lenders
against any loss or expense which the Lenders may sustain or incur in
liquidating or employing deposits from third parties acquired to effect, fund or
maintain any Alternate Currency Loan or any part thereof as a consequence of (i)
the Borrowers' failure to make a payment on other than the due date of such
Alternate Currency Loan, or (ii) the Borrowers' failure to borrow under, convert
to or renew under the applicable Alternate Currency on a binding effective date
of such borrowing, conversion or renewal. Administrative Agent's determination
of an amount payable under this paragraph (e) shall, in the absence of error, be
conclusive and shall be payable on demand.
(f) Administrative Agent may from time to time in
its discretion calculate the Dollar Equivalent of an Alternate Currency Loan. In
the event that the aggregate Dollar Equivalent of the outstanding principal
amount of the Alternate Currency Loans at any time exceeds One Hundred Million
Dollars ($100,000,000), the Administrative Agent shall promptly give notice of
such fact to Borrowers and Lenders, and Borrowers shall be required to make a
payment to Administrative Agent to reduce the outstanding principal amount of
the outstanding Alternate Currency Loans so that the Dollar Equivalent thereof
equals not more than One Hundred Million Dollars ($100,000,000). Such payment
shall be made within three (3) Business Days following the date of receipt of
such notice given by Administrative Agent.
Section 2.10. European Economic and Monetary Union.
(a) Definitions. In this Section 2.10 and in each
other provision of this Agreement to which reference is made to this Section
expressly or implicitly, the following terms have the meanings given to them in
this Section 2.10:
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"EMU" means economic and monetary union as contemplated in the
Treaty on European Union;
"EMU Legislation" means legislative measures of the European
Council for the introduction of change over to or operation of a single or
unified European currency, as amended from time to time;
"euro" means the single currency to which participating member
states are converting;
"euro unit" means the currency unit of the euro;
"national currency unit" means the unit of currency (other than
a euro unit) of a participating member state;
"participating member state" means each state so described in
any EMU Legislation; and
"Treaty on European Union" means the Treaty of Rome of March 25,
1957, as amended by the Single European Act 1986 and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992, and came into force on
November 1, 1993), as amended from time to time.
(b) Effectiveness of Provisions. The provisions of
subsections (c) to (k) below (inclusive) shall be effective upon the execution
of this Agreement, provided, that if and to the extent that any such provision
relates to any state (or the currency of such state) that is not a participating
member state upon the execution of this Agreement, such provision shall become
effective in relation to such state (and the currency of such state) at and from
the date on which such state becomes a participating member state.
(c) Redenomination and Alternate Currencies. Each
obligation of any party under this Agreement which has been denominated in the
national currency unit of a non-member state which becomes a participating
member state after the date of any Alternate Currency Loan made in the national
currency unit of such state shall be Redenominated into the euro unit at the
exchange rate set in accordance with EMU Legislation, provided, that if and to
the extent that any EMU Legislation provides that an amount denominated either
in the euro or in the national currency unit of a participating member state and
payable within that participating member state by crediting an account of a
creditor can be paid by a debtor either in the euro unit or in the national
currency unit, each party to this Agreement shall be entitled to pay or repay
any such amount either in the euro unit or in such national currency unit;
provided, however, any amount paid in a national currency unit shall be paid at
the fixed exchange rate in order to yield the required amount in euros.
(d) Loans. Any Loan in the currency of a
participating member state shall be made in the euro unit, provided that any
loan may, if so requested by the Borrowers, be made in the national currency
unit (based upon fixed exchange rate) of any participating member state so long
as such national currency unit continues to be available as legal tender, is
freely convertible and is not subject to exchange controls.
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(e) Business Days. With respect to any amount
denominated or to be denominated in the euro or a national currency unit, any
reference to a "Business Day" shall be construed as a reference to a day (other
than a Saturday or Sunday) on which banks are generally open for business in New
York City and prime banks in London generally provide quotations for deposits
denominated in the euro and such national currency unit.
(f) Payment to the Lenders. Sections of this
Agreement which provide for payment or repayment in a national currency unit
shall be construed so that, in relation to the payment of any amount of euro
units or national currency units, such amount shall be made available to the
Lenders, in immediately available, freely transferable, cleared funds to such
account with each bank (in such principal financial center) as each Lender may
from time to time nominate for this purpose in accordance with this Agreement.
(g) Payments by the Lenders Generally. With respect
to the payment of any amount denominated in the euro or in a national currency
unit, the Lenders shall not be liable to the Borrowers in any way whatsoever for
any delay, or the consequences of any delay, in the crediting to any account of
any amount required by this Agreement to be paid by a Lender if such Lender has
made reasonable efforts to effect all relevant steps to achieve, on the date
required by this Agreement, the payment of such amount in immediately available,
freely transferable, cleared funds (in the euro unit or, as the case may be, in
a national currency unit) to the account with the bank in the principal
financial center in the participating member state which the Borrowers shall
have specified for such purpose. In this paragraph, "all relevant steps" means
all such steps as may be prescribed from time to time by the regulations or
operating procedures of such clearing or settlement system as such Lender may
from time to time select for the purpose of clearing or settling payment of the
euro.
(h) Basis of Accrual. If the basis of accrual of
interest or fees expressed in this Agreement with respect to the currency of any
state that becomes a participating member state shall, in a Lender's reasonable
judgment, be inconsistent with any convention or practice in the London
Interbank Market for the basis of accrual of interest or fees in respect of the
euro, or if interest rate quotes for a national currency are no longer provided,
such convention or practice shall replace such expressed basis effective as of
and from the date on which such state becomes a participating member state;
provided, that if any Alternate Currency Loan in the currency of such state is
outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Loan, at the end of the then current Interest Period.
(i) Rounding and Other Consequential Changes.
Without prejudice and in addition to any method of conversion or rounding
prescribed by any EMU Legislation and without prejudice to the respective
liabilities for indebtedness of the Borrowers to the Lenders and of the Lenders
to the Borrowers under or pursuant to this Agreement,
(i) each reference in this Agreement to a
minimum amount (or an integral multiple thereof) in a national currency unit to
be paid to or by a Lender shall be replaced by a reference to such reasonably
comparable and convenient amount (or an integral multiple thereof) in the euro
unit as such Lender may from time to time specify; and
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(ii) except as expressly provided in this
Agreement, each provision of this Agreement, including, without limitation, the
right to combine currencies to effect a setoff, shall be subject to such
reasonable changes of interpretation as Lenders may from time to time specify to
be necessary or appropriate to reflect the introduction of or changeover to the
euro in participating member states.
(j) Exchange Indemnification and Increased Costs.
The Borrowers shall from time to time, upon demand from the Lenders, pay to the
Lenders the amount of any loss or cost or increased cost incurred by, or of any
reduction in any amount payable to or in the effective return of its capital to,
or of interest or other return, including principal foregone by any Lender or
its holding company as a result of the introduction of, changeover to or
operation of the euro in any participating member state or Borrowers' election
to borrow in a national currency and repay in the euro or to borrow in the euro
and repay in a national currency other than any such cost or reduction or amount
foregone reflected in the associated interest rate.
(k) Further Assurances. Borrowers agree, at the
request of the Administrative Agent or a Lender, at the time of or at any time
following the implementation of any EMU Legislation, to enter into an agreement
amending this Agreement in order to reflect the implementation of the EMU
Legislation and to place the parties hereto in the position they would have been
in had such EMU Legislation not been implemented.
Section 2.11. Amendment and Restatement.
(a) Agreement. This Agreement amends, restates,
replaces and supersedes the Original Credit Agreement and includes amendments
and modifications to the Original Credit Agreement approved to the extent
required by the terms of the Original Credit Agreement by Required Lenders,
Administrative Agent and Borrowers. For ease of reference and at the request of
the parties, this Agreement has been amended and restated to reflect this
Agreement as in effect and including those amendments which are required to be
and have been approved by Required Lenders. This Agreement therefore binds all
Lenders upon its execution and delivery by Borrowers, the Administrative Agent
and the Required Lenders and the satisfaction or waiver of the conditions set
forth in Section 5.1 of this Agreement.
(b) Collateral Security. The execution and delivery
of this Agreement by the parties hereto shall not in any circumstances be deemed
to have terminated, extinguished, or discharged the Borrowers' Obligations under
the Original Credit Agreement, all of which Obligations and the security
therefore, as amended by this Agreement, including without limitation under the
Security Agreement and the Pledge Agreement, shall continue under and be
governed by this Agreement and the other Loan Documents. This Agreement IS NOT A
NOVATION.
ARTICLE III
LETTER OF CREDIT FACILITY
Section 3.1. L/C Commitment. Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Lenders
set forth in Section 3.4(a), agrees to issue standby and documentary letters of
credit ("Letters of Credit") for the account of
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the Borrowers on any Business Day from the Closing Date through but not
including the Termination Date in such form as may be approved from time to time
by the Issuing Lender; provided, that the Issuing Lender shall have no
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (a) the L/C Obligations would exceed the L/C Commitment or (b) the
Available Commitment of any Lender would be less than zero. Each Letter of
Credit shall (i) be denominated in Dollars in a minimum amount of $100,000, (ii)
be a letter of credit issued to support obligations of any Borrower or any
Subsidiary, contingent or otherwise, incurred in the ordinary course of
business, (iii) expire on a date no later than the first anniversary of the
issuance of such Letter of Credit, which date shall in no event be later than
the Termination Date, and (iv) be subject to the Uniform Customs and, to the
extent not inconsistent therewith, the laws of the Commonwealth of Pennsylvania.
The Issuing Lender shall not at any time be obligated to issue any Letter of
Credit hereunder if such issuance would conflict with, or cause the Issuing
Lender or any L/C Participant to exceed any limits imposed by, any Applicable
Law. References herein to "issue" and derivations thereof with respect to
Letters of Credit shall also include extensions or modifications of any existing
Letters of Credit, unless the context otherwise requires.
Section 3.2. Procedure for Issuance of Letters of Credit. JLG,
on behalf of the Borrowers, may from time to time request that the Issuing
Lender issue a Letter of Credit by delivering to the Issuing Lender at the
Administrative Agent's Office an Application therefore, completed to the
reasonable satisfaction of the Issuing Lender, and such other certificates,
documents and other papers and information as the Issuing Lender may reasonably
request; provided, that if no such certificate, documents or other papers are
requested by Issuing Lender, then such delivery of an Application shall be
deemed to be a representation and warranty by JLG to Issuing Lender that the
matters set forth in Section 5.2 (a) and (b) are true and correct as of the date
of such delivery. Upon receipt of any Application, the Issuing Lender shall
process such Application and the certificates, documents and other papers and
information delivered to it, if any, in connection therewith in accordance with
its customary procedures and shall, subject to Section 3.1 and Article V hereof,
promptly issue the Letter of Credit requested thereby (but in no event shall the
Issuing Lender be required to issue any Letter of Credit earlier than three (3)
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the Borrowers. The Issuing
Lender shall promptly furnish to the Borrowers a copy of such Letter of Credit
and promptly notify each Lender of the issuance and, upon request by any Lender,
furnish to such Lender a copy of such Letter of Credit, and the amount of such
Lender's participation therein.
Section 3.3. Commissions and Other Charges.
(a) The Borrowers shall pay to the Administrative
Agent, for the account of the Issuing Lender and the L/C Participants, a letter
of credit commission with respect to each outstanding Letter of Credit in an
amount equal to the Applicable Margin at the time of issuance of such Letter of
Credit on a per annum basis on the face amount of such Letter of Credit. Such
commission shall be payable quarterly in arrears on the last Business Day of
each calendar quarter and on the Termination Date.
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(b) In addition to the foregoing commission, the
Borrowers shall pay the Issuing Lender an issuance fee of one-eighth of one
percent (1/8%) per annum on the face amount of each Letter of Credit, payable
quarterly in arrears on the last Business Day of each calendar quarter and on
the Termination Date.
(c) The Administrative Agent shall, promptly
following its receipt thereof, distribute to the Issuing Lender and the L/C
Participants all commissions received by the Administrative Agent in accordance
with their respective Commitment Percentages.
Section 3.4. L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant
and hereby grants to each L/C Participant, and, to induce the Issuing Lender to
issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from the Issuing Lender, on
the terms and conditions hereinafter stated, for such L/C Participant's own
account and risk an undivided interest equal to such L/C Participant's
Commitment Percentage in the Issuing Lender's obligations and rights under each
Letter of Credit issued hereunder and the amount of each draft paid by the
Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably
agrees with the Issuing Lender that, if a draft is paid under any Letter of
Credit for which the Issuing Lender is not reimbursed in full by the Borrowers
in accordance with the terms of this Agreement, such L/C Participant shall pay
to the Issuing Lender upon demand at the Issuing Lender's address for notices
specified herein an amount equal to such L/C Participant's Commitment Percentage
of the amount of such draft, or any part thereof, which is not so reimbursed.
(b) Upon becoming aware of any amount required to be
paid by any L/C Participant to the Issuing Lender pursuant to Section 3.4(a) in
respect of any unreimbursed portion of any payment made by the Issuing Lender
under any Letter of Credit, the Issuing Lender shall notify each L/C Participant
of the amount and due date of such required payment and such L/C Participant
shall pay to the Issuing Lender the amount specified on the applicable due date.
If any such amount is paid to the Issuing Lender after the date such payment is
due, such L/C Participant shall pay to the Issuing Lender on demand, in addition
to such amount, the product of (i) such amount, times (ii) the daily average
Federal Funds Rate as determined by the Administrative Agent during the period
from and including the date such payment is due to the date on which such
payment is immediately available to the Issuing Lender, times (iii) a fraction
the numerator of which is the number of days that elapse during such period and
the denominator of which is 360. A certificate of the Issuing Lender with
respect to any amounts owing under this Section 3.4(b) shall be conclusive in
the absence of manifest error. With respect to payment to the Issuing Lender of
the unreimbursed amounts described in this Section 3.4(b), if the L/C
Participants receive notice that any such payment is due (A) prior to 1:00 p.m.
(Charlotte time) on any Business Day, such payment shall be due that Business
Day, and (B) after 1:00 p.m. (Charlotte time) on any Business Day, such payment
shall be due on the following Business Day.
(c) Whenever, at any time after the Issuing Lender
has made payment under any Letter of Credit and has received from any L/C
Participant its Commitment Percentage of such payment in accordance with this
Section 3.4, the Issuing Lender receives any payment related to such Letter of
Credit, whether directly from the Borrower or otherwise, or any
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payment of interest on account thereof, the Issuing Lender will distribute to
such L/C Participant its pro rata share thereof; provided, that in the event
that any such payment received by the Issuing Lender shall be required to be
returned by the Issuing Lender, such L/C Participant shall return to the Issuing
Lender the portion thereof previously distributed by the Issuing Lender to it.
Section 3.5. Reimbursement Obligation of the Borrowers. The
Borrowers agree to reimburse the Issuing Lender on each date on which the
Issuing Lender notifies the Borrowers of the date and amount of a draft paid
under any Letter of Credit for the amount of (a) such draft so paid and (b) any
taxes, fees, charges or other costs or expenses incurred by the Issuing Lender
in connection with such payment. Each such payment shall be made to the Issuing
Lender at its address for notices specified herein in lawful money of the United
States and in immediately available funds on (i) the Business Day that the
Borrowers receive such notice, if such notice is received prior to 1:00 p.m.,
Charlotte time, or (ii) the Business Day immediately following the day that the
Borrowers receive such notice, if such notice is not received prior to such
time. Interest shall be payable on any and all amounts remaining unpaid by the
Borrowers under this Article III from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in full
at the rate which would be payable on any outstanding Base Rate Loans; provided,
however, that if the Borrowers fail to reimburse the Issuing Lender by the third
Business Day following the notice referred to in this Section 3.5, the Base Rate
Loan referred to above shall, from the initial date due until paid, bear
interest at the default rate set forth in Section 4.1(d) hereof. If the
Borrowers fail to timely reimburse the Issuing Lender on the date the Borrowers
receive the notice referred to in this Section 3.5, the Borrowers shall be
deemed to have timely given a Notice of Borrowing hereunder to the
Administrative Agent requesting the Lenders to make a Base Rate Loan on such
date in an amount equal to the amount of such drawing and, regardless of whether
or not the conditions precedent specified in Article V have been satisfied, the
Lenders shall make Base Rate Loans in such amount, the proceeds of which shall
be applied to reimburse the Issuing Lender for the amount of the related drawing
and costs and expenses.
Section 3.6. Obligations Absolute. The Borrowers' obligations
under this Article III (including without limitation the Reimbursement
Obligation) shall be absolute and unconditional under any and all circumstances
and irrespective of any set-off, counterclaim or defense to payment which the
Borrowers may have or have had against the Issuing Lender or any beneficiary of
a Letter of Credit. The Borrowers also agree with the Issuing Lender that the
Issuing Lender shall not be responsible for, and the Borrowers' Reimbursement
Obligation under Section 3.5 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even though
such documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrowers and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the Borrowers against any beneficiary of such Letter of
Credit or any such transferee. The Issuing Lender shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions caused by the Issuing Lender's gross
negligence or willful misconduct. The Borrowers agree that any action taken or
omitted by the Issuing Lender under or in connection with any Letter of Credit
or the related drafts or documents, if done in the absence of gross negligence
or willful misconduct and in accordance with the standards of care specified in
the Uniform Customs and, to the extent not
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inconsistent therewith, the UCC, shall be binding on the Borrowers and shall not
result in any liability of the Issuing Lender to the Borrowers. The
responsibility of the Issuing Lender to the Borrowers in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such
Letter of Credit.
Section 3.7. Effect of Application. To the extent that any
provision of any Application related to any Letter of Credit is inconsistent
with the provisions of this Article III, the provisions of this Article III
shall apply.
Section 3.8. General Terms of Documentary Letters of Credit.
(a) To the extent any failure to comply with the
provisions of this Section 3.8 would, either individually or in the aggregate,
result in a Material Adverse Effect, the Borrowers agree to procure or to cause
the beneficiaries of each documentary Letter of Credit to procure promptly any
necessary import and export or other licenses for the import or export or
shipping of any goods referred to in or pursuant to a Letter of Credit and to
comply and to use its commercially reasonable efforts to cause the beneficiaries
to comply with all foreign and domestic governmental regulations with respect to
the shipment and warehousing of such goods or otherwise relating to or affecting
such Letter of Credit, including without limitation governmental regulations
pertaining to transactions involving designated foreign countries or their
nationals, and to furnish such certificates in that respect as the Issuing
Lender may at any time reasonably require, and to keep such goods adequately
covered by insurance in amounts, with carriers and for such risks as shall be
customary in the industry and to cause the Issuing Lender's interest to be
endorsed on such insurance and to furnish the Issuing Lender at its request with
reasonable evidence thereof. Should such insurance (or lack thereof) upon said
goods for any reason not be reasonably satisfactory to the Issuing Lender, the
Issuing Lender may (but is not obligated to) obtain, after notice, at the
Borrowers' expense, insurance satisfactory to the Issuing Lender.
(b) In connection with each documentary Letter of
Credit, neither the Issuing Lender nor any correspondent shall be responsible
for: (i) the existence, character, quality, quantity, condition, packing, value
or delivery of the property purporting to be represented by documents; (ii) any
difference in character, quality, condition or value of the property from that
expressed in documents; (iii) the time, place, manner or order in which shipment
of the property is made; (iv) partial or incomplete shipment referred to in such
Letter of Credit; (v) the character, adequacy or responsibility of any insurer,
or any other risk connected with insurance other than insurance procured by the
Issuing Lender; (vi) any deviation from instructions, delay, default or fraud by
the beneficiary or anyone else in connection with the property or the shipping
thereof; (vii) the solvency, responsibility or relationship to the property of
any party issuing any documents in connection with the property; (viii) delay in
arrival or failure to arrive of either the property or any of the documents
relating thereto; (ix) delay in giving or failure to give notice of arrival or
any other notice; (x) any breach of contract between the Letter of Credit
beneficiaries and any Borrower; (xi) any laws, customs, and regulations which
may be effective in any jurisdiction where any negotiation and/or payment of
such Letter of Credit occurs; (xii) failure of documents (other than documents
required by the terms of the Letter of Credit) to accompany
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any draft at negotiation; or (xiii) failure of any entity to note the amount of
any document or draft on the reverse of such Letter of Credit or to surrender or
to take up such Letter of Credit or to forward documents other than documents
required by the terms of the Letter of Credit. In connection with each Letter of
Credit, the Issuing Lender shall not be responsible for any error, neglect or
default of any of its correspondents. None of the above shall affect, impair or
prevent the vesting of any of the Issuing Lender's rights or powers hereunder.
If a Letter of Credit provides that payment is to be made by the Issuing
Lender's correspondent, neither the Issuing Lender nor such correspondent shall
be responsible for the failure of any of the documents specified in such Letter
of Credit to come into the Issuing Lender's hands, or for any delay in
connection therewith, and the Borrowers' obligation to make reimbursements shall
not be affected by such failure or delay in the receipt of any such documents.
(c) To the extent not inconsistent with this
Agreement, the Uniform Customs are hereby made a part of this Agreement with
respect to obligations in connection with each documentary Letter of Credit.
Section 3.9. Existing Letters of Credit. Reference is hereby
made to the letters of credit set forth on Schedule 5 hereto (the "Existing
Letters of Credit"). The Borrowers and the Lenders hereby agree that the
Existing Letters of Credit shall be deemed to be Letters of Credit originally
issued hereunder, and shall be subject to the terms of this Agreement.
ARTICLE IV
GENERAL LOAN PROVISIONS
Section 4.1. Interest.
(a) Interest Rate Options. Subject to the provisions
of this Section 4.1, at the election of the Borrowers, the aggregate principal
balance of (i) the Revolving Credit Notes or any portion thereof shall bear
interest at (A) the Base Rate or (B) the LIBOR Rate plus the Applicable Margin
as set forth in Section 4.1(c); provided, that any Swingline Loan shall bear
interest at the Base Rate. JLG shall select the rate of interest and Interest
Period, if any, applicable to any Loan at the time a Notice of Borrowing is
given pursuant to Section 2.3 or at the time a Notice of Conversion/Continuation
is given pursuant to Section 4.2. Each Loan or portion thereof bearing interest
based on the Base Rate shall be a Base Rate Loan, and each Loan or portion
thereof bearing interest based on the LIBOR Rate shall be a LIBOR Rate Loan. Any
Loan or any portion thereof as to which JLG has not duly specified an interest
rate as provided herein shall be deemed a Base Rate Loan.
(b) Interest Periods. In connection with each LIBOR
Rate Loan, JLG, by giving notice as described in Section 4.1(a), shall elect an
interest period (each, an "Interest Period") to be applicable to such Loan,
which Interest Period shall be a period of one (1), two (2), three (3), or six
(6) months with respect to each LIBOR Rate Loan; provided that:
(i) the Interest Period shall commence on
the date of advance of or conversion to any LIBOR Rate Loan and, in the case of
immediately successive Interest Periods, each successive Interest Period shall
commence on the date on which the next preceding Interest Period expires;
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(ii) if any Interest Period would otherwise
expire on a day that is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day; provided, that if any Interest Period with
respect to a LIBOR Rate Loan would otherwise expire on a day that is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next preceding
Business Day;
(iii) any Interest Period with respect to a
LIBOR Rate Loan that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of the
relevant calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond
the Termination Date; and
(v) there shall be no more than six (6)
LIBOR Rate Loans outstanding at any time.
(c) Applicable Margin. The Applicable Margin
provided for in Section 4.1(a) with respect to the Loans (the "Applicable
Margin") shall be determined by reference to the Leverage Ratio as of the end of
the fiscal quarter immediately preceding the delivery of the applicable
Officer's Compliance Certificate as follows:
Level Leverage Ratio Applicable Margin
----- -------------- -----------------
I greater than or 200.0 bps
equal to 4.0
II greater than or 162.5 bps
equal to 3.0
and less than
4.0
III greater than or 112.5 bps
equal to 2.5
and less than
3.0
IV greater than or 100.0 bps
equal to 2.0
and less than
2.5
V greater than or 87.5 bps
equal to 1.5
and less than
2.0
VI greater than or 70.0 bps
equal to 1.0
and less than
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1.5
VII less than 1.0 55.0 bps
(d) Default Rate. Subject to Section 11.3, at the
discretion of the Administrative Agent and Required Lenders, upon the occurrence
and during the continuance of an Event of Default: (i) the Borrowers shall no
longer have the option to request LIBOR Rate Loans, (ii) all outstanding LIBOR
Rate Loans (including without limitation all Alternate Currency Loans) shall
bear interest at a rate per annum two percent (2%) in excess of the rate then
applicable to LIBOR Rate Loans, as applicable, until the end of the applicable
Interest Period, and thereafter at a rate equal to two percent (2%) in excess of
the rate then applicable to Base Rate Loans, (iii) all outstanding Base Rate
Loans shall bear interest at a rate per annum equal to two percent (2%) in
excess of the rate then applicable to Base Rate Loans. Interest shall continue
to accrue on the Notes after the filing by or against the Borrowers of any
petition seeking any relief in bankruptcy or under any act or law pertaining to
insolvency or debtor relief, whether state, federal or foreign, and (iv) on the
last day of the applicable Interest Period, all outstanding Alternate Currency
Loans shall be Redenominated into Dollars.
(e) Interest Payment and Computation. Interest on
each Base Rate Loan shall be payable in arrears on the last Business Day of each
calendar quarter commencing June 30, 1999; and interest on each LIBOR Rate Loan
shall be payable on the last day of each Interest Period applicable thereto, and
if such Interest Period extends over three (3) months, at the end of each three
(3) month interval during such Interest Period. Interest on LIBOR Rate Loans and
all fees payable hereunder shall be computed on the basis of a 360-day year and
assessed for the actual number of days elapsed and interest on Base Rate Loans
shall be computed on the basis of a 365/66-day year and assessed for the actual
number of days elapsed.
Section 4.2. Notice and Manner of Conversion or Continuation of
Loans. Provided that no Event of Default has occurred and is then continuing,
the Borrowers shall have the option to (a) convert at any time following the
third Business Day after the Closing Date all or any portion of its outstanding
Base Rate Loans (other than Swingline Loans) in a principal amount equal to
$1,000,000 or any whole multiple of $1,000,000 in excess thereof into one or
more LIBOR Rate Loans and (b) upon the expiration of any Interest Period, (i)
convert all or any part of its outstanding LIBOR Rate Loans in a principal
amount equal to $3,000,000 or a whole multiple of $1,000,000 in excess thereof
into Base Rate Loans or (ii) continue such LIBOR Rate Loans as LIBOR Rate Loans.
Whenever the Borrower desires to convert or continue Loans as provided above,
the Borrower shall give the Administrative Agent irrevocable prior written
notice in the form attached as Exhibit D (a Notice of Conversion/Continuation )
not later than 11:00 a.m. (Charlotte time) three (3) Business Days before the
day on which a proposed conversion or continuation of such Loan is to be
effective specifying (A) the Loans to be converted or continued, and, in the
case of any LIBOR Rate Loan to be converted or continued, the last day of the
Interest Period therefor, (B) the effective date of such conversion or
continuation (which shall be a Business Day), (C) the principal amount of such
Loans to be converted or continued, and (D) the Interest Period to be applicable
to such converted or continued LIBOR Rate Loan. The Administrative Agent shall
promptly notify the Lenders of such Notice of Conversion/Continuation.
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Section 4.3. Fees.
(a) Facility Fees. The Borrowers shall pay to the
Administrative Agent, for the account of the Lenders, quarterly in arrears,
regardless of usage, a non-refundable facility fee at a rate per annum to be
determined by reference to the Leverage Ratio as follows times the then current
Aggregate Commitment:
Annual
Level Leverage Ratio Facility Fee
----- -------------- ------------
I =>2.5 27.5 bps
II =>2.0 and <2.5 25.0 bps
III =>1.5 and <2.0 25.0 bps
IV =>1.0 and <1.5 22.5 bps
V <1.0 20.0 bps
Adjustments, if any, in the applicable facility fee shall be made by the
Administrative Agent on the third (3rd) Business Day after receipt by the
Administrative Agent of quarterly financial statements for JLG and its
Subsidiaries and the accompanying Officer's Compliance Certificate setting forth
the Leverage Ratio of the Borrowers and their Subsidiaries as of the most recent
fiscal quarter end. In the event the Borrowers fail to deliver such financial
statements and certificate within the time required by Section 7.2(c) hereof,
the applicable facility fee may, at the discretion of the Administrative Agent,
the highest facility fee set forth above until the delivery of such financial
statements and certificates.
(b) Administrative Agent's and Other Fees. In order
to compensate the Administrative Agent for structuring and syndicating the Loans
and for its obligations hereunder, the Borrowers agree to pay to the
Administrative Agent, for its account, the fees set forth in the separate fee
letter agreement executed by JLG and the Administrative Agent dated May 5, 1999.
Section 4.4. Manner of Payment.
(a) Except for Alternate Currency Loans, each
payment by the Borrowers on account of the principal of or interest on the Loans
or of any fee, commission or other amounts (including the Reimbursement
Obligation) payable to the Lenders under this Agreement or any Note shall be
made not later than 1:00 p.m. (Charlotte time) on the date specified for payment
under this Agreement to the Administrative Agent at the Administrative Agent's
Office for the account of the Lenders (other than as set forth below) pro rata
in accordance with their respective Commitment Percentages (except as specified
below), in Dollars, in immediately available funds and shall be made without any
set-off, counterclaim or deduction whatsoever.
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(b) Alternate Currency Loans shall be paid at the
Administrative Agent's Alternate Lending Office no later than 11:00 a.m. (London
time) and otherwise as set forth above.
(c) Any payment received on such date after the time
set for payment, as applicable, shall be deemed to have been made on the next
succeeding Business Day. Upon receipt by the Administrative Agent of each such
payment, the Administrative Agent shall distribute to each Lender at its address
for notices set forth herein its pro rata share of such payment in accordance
with such Lender's Commitment Percentage (except as specified below) and shall
wire advice of the amount of such credit to each Lender. Each payment to the
Administrative Agent of the Issuing Lender's fees, Lenders' facility fee or L/C
Participants' commissions shall be made in like manner, but for the account of
the Issuing Lender or the L/C Participants, as the case may be. Each payment to
the Administrative Agent of Administrative Agent's fees or expenses shall be
made for the account of the Administrative Agent and any amount payable to any
Lender under Sections 4.8, 4.9, 4.10, 4.11 or 13.2 shall be paid to the
Administrative Agent for the account of the applicable Lender. Subject to
Section 4.1(b)(ii) if any payment under this Agreement or any Note shall be
specified to be made upon a day which is not a Business Day, it shall be made on
the next succeeding day which is a Business Day and such extension of time shall
in such case be included in computing any interest if payable along with such
payment.
Section 4.5. Credit of Payments and Proceeds. In the event that
the Borrowers shall fail to pay any of the Obligations when due and the
Obligations have been accelerated pursuant to Section 11.2, all payments
received by the Lenders upon the Notes and the other Obligations and all net
proceeds from the enforcement of the Obligations shall be applied first to all
expenses then due and payable by the Borrowers hereunder, then to all indemnity
obligations then due and payable by the Borrowers hereunder, then to all
Administrative Agent's and Issuing Lender's fees then due and payable, then to
all commitment and other fees and commissions then due and payable, then to
accrued and unpaid interest on the Swingline Note to the Swingline Lender, then
to the principal amount outstanding under the Swingline Note to the Swingline
Lender, then to accrued and unpaid interest on the Revolving Credit Notes, the
Reimbursement Obligation and, if applicable, any termination payments or other
amounts due in respect of a Hedging Agreement with any Lender (which such
Hedging Agreement is permitted hereunder) (pro rata in accordance with all such
amounts due), then to the principal amount of the Revolving Credit Notes and
Reimbursement Obligation (pro rata in accordance with all such amounts due) and
then to the cash collateral account described in Section 11.2(b) hereof to the
extent of any L/C Obligations then outstanding, in that order.
Section 4.6. Adjustments. If any Lender (a "Benefited Lender")
shall at any time receive any payment of all or part of the Obligations owing to
it, or interest thereon, or if any Lender shall at any time receive any
collateral in respect to the Obligations owing to it (whether voluntarily or
involuntarily, by set-off or otherwise) in a greater proportion than any such
payment to and collateral received by any other Lender, if any, in respect of
the Obligations owing to such other Lender, or interest thereon, such Benefited
Lender shall purchase for cash from the other Lenders such portion of each such
other Lender's Extensions of Credit, or shall provide such other Lenders with
the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefited Lender to share the excess payment or benefits
of
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such collateral or proceeds ratably with each of the Lenders; provided, that if
all or any portion of such excess payment or benefits is thereafter recovered
from such Benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned to the extent of such recovery, but without
interest. The Borrowers agree that each Lender so purchasing a portion of
another Lender's Extensions of Credit may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such portion
as fully as if such Lender were the direct holder of such portion.
Section 4.7. Nature of Obligations of Lenders Regarding
Extensions of Credit; Assumption by the Administrative Agent. The obligations of
the Lenders under this Agreement to make the Loans and issue or participate in
Letters of Credit are several and are not joint or joint and several. Unless the
Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with Section 2.3(b), and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrowers on such date a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to the product of
(a) the amount not made available by such Lender in accordance with the terms
hereof, times (b) the daily average Federal Funds Rate during such period as
determined by the Administrative Agent, times (c) a fraction, the numerator of
which is the number of days that elapse from and including such borrowing date
to the date on which such amount not made available by such Lender in accordance
with the terms hereof shall have become immediately available to the
Administrative Agent and the denominator of which is 360. A certificate of the
Administrative Agent with respect to any amounts owing under this Section shall
be conclusive, absent manifest error. If such Lender's Commitment Percentage of
such borrowing is not made available to the Administrative Agent by such Lender
within three (3) Business Days of such borrowing date, the Administrative Agent
shall be entitled to recover such amount made available by the Administrative
Agent with interest thereon at the rate per annum applicable to Base Rate Loans
hereunder, on demand, from the Borrowers. The failure of any Lender to make
available its Commitment Percentage of any Loan requested by the Borrowers shall
not relieve it or any other Lender of its obligation, if any, hereunder to make
its Commitment Percentage of such Loan available on the borrowing date, but no
Lender shall be responsible for the failure of any other Lender to make its
Commitment Percentage of such Loan available on the borrowing date.
Section 4.8. Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability.
If with respect to any Interest Period the Administrative Agent or any Lender
(after consultation with Administrative Agent) shall determine that, by reason
of circumstances affecting the foreign exchange and interbank markets generally,
deposits in eurodollars, in the applicable amounts are not being quoted via
Telerate Page 3750 or offered to the Administrative Agent or such Lender for
such Interest Period, then the Administrative Agent shall forthwith give notice
thereof to the Borrowers. Thereafter, until the Administrative Agent notifies
the Borrowers that such
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circumstances no longer exist, the obligation of the Lenders to make LIBOR Rate
Loans and the right of the Borrowers to convert any Loan to or continue any Loan
as a LIBOR Rate Loan shall be suspended, and the Borrowers shall repay in full
(or cause to be repaid in full) the then outstanding principal amount of each
such LIBOR Rate Loans together with accrued interest thereon, on the last day of
the then current Interest Period applicable to such LIBOR Rate Loan or convert
the then outstanding principal amount of each such LIBOR Rate Loan to a Base
Rate Loan as of the last day of such Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If,
after the date hereof, the introduction of, or any change in, any Applicable Law
or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or any of
their respective Lending Offices) with any 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 any of the Lenders (or any of
their respective Lending Offices) to honor its obligations hereunder to make or
maintain any LIBOR Rate Loan, such Lender shall promptly give notice thereof to
the Administrative Agent and the Administrative Agent shall promptly give notice
to the Borrowers and the other Lenders. Thereafter, until the Administrative
Agent notifies the Borrowers that such circumstances no longer exist, (i) the
obligations of the Lenders to make LIBOR Rate Loans and the right of the
Borrowers to convert any Loan or continue any Loan as a LIBOR Rate Loan shall be
suspended and thereafter the Borrowers may select only Base Rate Loans
hereunder, and (ii) if any of the Lenders may not lawfully continue to maintain
a LIBOR Rate Loan to the end of the then current Interest Period applicable
thereto as a LIBOR Rate Loan, the applicable LIBOR Rate Loan shall immediately
be converted to a Base Rate Loan for the remainder of such Interest Period.
(c) Increased Costs. If, after the date hereof, the
introduction of, or any change in, any Applicable Law, or in the interpretation
or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any of the Lenders (or any of their respective Lending Offices)
with any request or directive (whether or not having the force of law) of such
Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any
of their respective Lending Offices) to any tax, duty or other charge (other
than Taxes resulting from Lender's failure to comply with Section 4.11(e) of
this Agreement, if applicable), with respect to any Note, Letter of Credit or
Application or shall change the basis of taxation of payments by Borrowers to
any of the Lenders (or any of their respective Lending Offices) of the principal
of or interest on any Note, Letter of Credit or Application or any other amounts
due under this Agreement in respect thereof (except for changes in the rate of
tax on the overall net income of any of the Lenders or any of their respective
Lending Offices imposed by the jurisdiction in which such Lender is organized or
is or should be qualified to do business or such Lending Office is located); or
(ii) shall impose, modify or deem applicable
any reserve (including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System), special deposit, insurance or capital
or similar requirement against assets of, deposits
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with or for the account of, or credit extended by any of the Lenders (or any of
their respective Lending Offices) or shall impose on any of the Lenders (or any
of their respective Lending Offices) or the foreign exchange and interbank
markets any other condition affecting any Note;
and the result of any of the foregoing is to increase the costs to any of the
Lenders of maintaining any LIBOR Rate Loan or issuing or participating in
Letters of Credit or to reduce the yield or amount of any sum received or
receivable by any of the Lenders under this Agreement or under the Notes in
respect of a LIBOR Rate Loan or Letter of Credit or Application, then such
Lender shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify the Borrowers of such fact and demand compensation
therefor and, within fifteen (15) days after such notice by the Administrative
Agent, the Borrowers shall pay to such Lender such additional amount or amounts
as will compensate such Lender or Lenders for such increased cost or reduction.
The Administrative Agent will promptly notify the Borrowers of any event of
which it has knowledge which will entitle such Lender to compensation pursuant
to this Section 4.8(c); provided, that the Administrative Agent shall incur no
liability whatsoever to the Lenders or the Borrowers in the event it fails to do
so. The amount of such compensation shall be determined, in the applicable
Lender's sole reasonable discretion, based upon the assumption that such Lender
funded its Commitment Percentage of the LIBOR Rate Loans in the London interbank
market and using any reasonable attribution or averaging methods which such
Lender deems appropriate and practical. A certificate of such Lender setting
forth the basis for determining such amount or amounts necessary to compensate
such Lender shall be forwarded to the Borrowers through the Administrative Agent
and shall be conclusively presumed to be correct save for manifest error.
Section 4.9. Indemnity. The Borrowers hereby indemnify each of
the Lenders against any loss or expense which may arise or be attributable to
such Lender's obtaining, liquidating or employing deposits or other funds
acquired to effect, fund or maintain any LIBOR Rate Loan (a) as a consequence of
any failure by the Borrowers to make any payment when due of any amount due
hereunder in connection with a LIBOR Rate Loan, (b) due to any failure of the
Borrowers to borrow on a date specified therefor in a Notice of Borrowing or
Notice of Continuation/Conversion or (c) due to any payment, prepayment or
conversion of any LIBOR Rate Loan on a date other than the last day of the
Interest Period therefor. The amount of such loss or expense shall be
determined, in the applicable Lender's sole reasonable discretion, based upon
the assumption that such Lender funded its Commitment Percentage of the LIBOR
Rate Loans in the London interbank market and using any reasonable attribution
or averaging methods which such Lender deems appropriate and practical. A
certificate of such Lender setting forth the basis for determining such amount
or amounts necessary to compensate such Lender shall be forwarded to the
Borrowers through the Administrative Agent and shall be conclusively presumed to
be correct save for manifest error.
Section 4.10. Capital Requirements. If either (a) the
introduction of, or any change in, or in the interpretation of, any Applicable
Law or (b) compliance with any guideline or request from any central bank or
comparable agency or other Governmental Authority (whether or not having the
force of law), has or would have the effect of reducing the rate of return on
the capital of, or has affected or would affect the amount of capital required
to be maintained by, any Lender or any corporation controlling such Lender as a
consequence of, or with reference to the Commitments and other commitments of
this type, below the rate which the
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Lender or such other corporation could have achieved but for such introduction,
change or compliance, and the costs of such change in capital requirements are
not reflected in the LIBOR Rate (other than the Eurodollar Reserve Percentage to
the extent reflected in the LIBOR Rate) then within five (5) Business Days after
written demand by any such Lender, the Borrowers shall pay to such Lender from
time to time as specified by such Lender additional amounts sufficient to
compensate such Lender or other corporation for such reduction. A certificate as
to such amounts submitted to the Borrowers and the Administrative Agent by such
Lender, shall, in the absence of manifest error, be presumed to be correct and
binding for all purposes. Each Lender and the Administrative Agent shall
allocate such cost increases among its customers in good faith and on an
equitable basis.
Section 4.11. Taxes.
(a) Payments Free and Clear. Subject to compliance
by Lenders with Section 4.11(e), any and all payments by the Borrowers hereunder
or under the Notes or the Letters of Credit shall be made free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholding, and all liabilities with respect thereto
excluding, (i) in the case of each Lender and the Administrative Agent, income
and franchise taxes imposed by the jurisdiction under the laws of which such
Lender or the Administrative Agent (as the case may be) is organized or is or
should be qualified to do business or any political subdivision thereof, (ii) in
the case of each Lender, income and franchise taxes imposed by the jurisdiction
of such Lender's Lending Office or any political subdivision thereof , all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities (but excluding Other Taxes) being hereinafter referred to as
"Taxes"). If the Borrowers shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder or under any Note or Letter of Credit to
any Lender or the Administrative Agent, (A) the sum payable shall be increased
as may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 4.11) such
Lender or the Administrative Agent (as the case may be) receives an amount equal
to the amount such party would have received had no such deductions been made,
(B) the Borrowers shall make such deductions, (C) the Borrowers shall pay the
full amount deducted to the relevant taxing authority or other authority in
accordance with applicable law, and (D) the Borrowers shall deliver to the
Administrative Agent evidence of such payment to the relevant taxing authority
or other authority in the manner provided in Section 4.11(d).
(b) Stamp and Other Taxes. In addition, the
Borrowers shall pay any present or future stamp, registration, recordation or
documentary taxes or any other similar fees or charges or excise or property
taxes, levies of the United States or any state or political subdivision thereof
or any applicable foreign jurisdiction which arise from any payment made
hereunder or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement, the Loans, the Letters of Credit, the other Loan
Documents, or the perfection of any rights or security interest in respect
thereto (hereinafter referred to as "Other Taxes").
(c) Indemnity. The Borrowers shall indemnify each
Lender and the Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes and Other Taxes imposed by any
jurisdiction on amounts payable under this Section 4.11) paid by such Lender or
the Administrative Agent (as the case may be) and any
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additional liability or obligation (including penalties, interest and expenses)
arising therefrom or with respect thereto paid by such Lender or the
Administrative Agent. Such indemnification shall be made within thirty (30) days
from the date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor.
(d) Evidence of Payment. Within thirty (30) days
after the date of any payment of Taxes or Other Taxes, the Borrowers shall
furnish to the Administrative Agent, at its address referred to in Section 13.1,
the original or a certified copy of a receipt evidencing payment thereof or
other evidence of payment satisfactory to the Administrative Agent.
(e) Delivery of Tax Forms. Each Lender (i)organized
under the laws of a jurisdiction other than the United States or any state
thereof shall deliver to the Borrowers, with a copy to the Administrative Agent,
on the Closing Date or concurrently with the delivery of the relevant Assignment
and Acceptance, as applicable, two United States Internal Revenue Service Forms
W-8ECI or Forms W-8BEN, as applicable (or successor forms) properly completed
and certifying in each case that such Lender is entitled to a complete exemption
from withholding or deduction for or on account of any United States federal
income taxes, including backup withholding taxes and (ii) shall deliver to the
Borrowers, with a copy to the Administrative Agent, on the Closing Date or
concurrently with the delivery of the relevant Assignment and Acceptance, as
applicable, two United States Internal Revenue Service Form W-9 (or successor
form), as needed to establish a complete exemption from United States backup
withholding taxes. Each Lender further agrees to deliver to the Borrowers, with
a copy to the Administrative Agent, a Form W-8ECI or W-8BEN and Form W-8 or W-9,
or successor applicable forms or manner of certification, as the case may be, on
or before the date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Borrowers, certifying in the case of a Form W-8ECI or
W-8BEN that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes
(unless in any such case an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders such forms inapplicable or
the exemption to which such forms relate unavailable and such Lender notifies
the Borrowers and the Administrative Agent that it is not entitled to receive
payments without deduction or withholding of United States federal income taxes)
and, in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax.
(f) Survival. Without prejudice to the survival of
any other agreement of the Borrower hereunder, the agreements and obligations of
the Borrowers contained in this Section 4.11 shall survive the payment in full
of the Obligations and the termination of the Commitments.
Section 4.12. Security. The Obligations of the Borrowers shall
be secured under the Collateral Security Documents on a pari passu basis with
the obligations of Borrowers to Allfirst Bank under the Overdraft Facility, not
exceeding a principal amount of $25,000,000.
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ARTICLE V
CLOSING; CONDITIONS OF EFFECTIVENESS AND BORROWING
Section 5.1. Conditions to Effectiveness. The effectiveness of
this Agreement is subject to the satisfaction of each of the following
conditions:
(a) Executed Agreement. This Agreement shall have
been duly authorized, executed and delivered to the Administrative Agent by the
parties thereto, shall be in full force and effect and no default shall exist
thereunder, and the Borrowers shall have delivered original counterparts thereof
to the Administrative Agent.
(b) Officer's Certificate of the Borrowers. The
Administrative Agent shall have received a certificate from a Responsible
Officer, in form and substance satisfactory to the Administrative Agent, to the
effect that all representations and warranties of the Borrowers contained in
this Agreement and the other Loan Documents are true, correct and complete; that
the Borrowers are not in violation of any of the covenants contained in this
Agreement and the other Loan Documents; that, after giving effect to the
transactions contemplated by this Agreement, no Default or Event of Default has
occurred and is continuing; and that the Borrowers have satisfied each of the
conditions set forth in Section 5.1.
(c) Certificate of Secretary of each Borrower;
Resolutions. The Administrative Agent shall have received a certificate of the
secretary or assistant secretary of each Borrower certifying as to the
incumbency and genuineness of the signature of each officer of such Borrower
executing Loan Documents to which it is a party and certifying that (A) there
have been no changes to the articles or certificate of incorporation, articles
of organization, bylaws and/or operating agreement of such Borrower since such
documents were last delivered to Administrative Agent or, if there have been any
such changes, that attached thereto is a true, correct and complete copy of such
changed articles or certificate of incorporation, articles of organization,
bylaws and/or operating agreement, as applicable and (B) attached thereto is a
true, correct and complete copy of resolutions or other evidence of
authorization duly adopted by the board of directors or manager of such Borrower
authorizing the borrowings contemplated hereunder and the execution, delivery
and performance of this Agreement and the other Loan Documents to which it is a
party.
(d) Opinions of Counsel. The Administrative Agent
shall have received favorable opinions of in-house counsel to each Borrower,
addressed to the Administrative Agent and the Lenders with respect to each such
Borrower, the Loan Documents and such other matters as the Lenders shall
request.
(e) Amendment Fee. The Borrowers shall have paid to
the Administrative Agent for the account of the Lenders whose signatures appear
on this Agreement, on a pro rata basis, an amendment fee equal to 15 basis
points of the Aggregate Commitment.
(f) Payoff Letter for Working Capital Facility. A
payoff letter for the Working Capital Facility in form and substance acceptable
to Administrative Agent.
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(g) Amendment to Overdraft Facility. Borrowers shall
have delivered to Administrative Agent a fully-executed amendment to the
document evidencing the Overdraft Facility, in form and substance reasonably
satisfactory to Administrative Agent.
(h) Amendment to Security Agreement. Borrowers shall
have delivered to Administrative Agent an amendment to the Security Agreement
executed by the parties thereto, in form and substance reasonably satisfactory
to Administrative Agent.
(i) Amendment to Pledge Agreement. Borrowers shall
have delivered to Administrative Agent an amendment to the Pledge Agreement,
executed by the parties thereto, in form and substance reasonably satisfactory
to Administrative Agent.
Section 5.2. Conditions to All Extensions of Credit. The
obligations of the Lenders to make any Extensions of Credit are subject to the
satisfaction of the following conditions precedent on the relevant borrowing or
issue date, as applicable:
(a) Continuation of Representations and Warranties.
The representations and warranties contained in Article VI shall be true and
correct in all material respects on and as of such borrowing or issuance date
with the same effect as if made on and as of such date, except for any
representation and warranty made as of an earlier date, which representation and
warranty shall remain true and correct as of such earlier date.
(b) No Existing Default. No Default or Event of
Default shall have occurred and be continuing hereunder (i) on the borrowing
date with respect to such Loan or after giving effect to the Loans to be made on
such date or (ii) on the issue date with respect to such Letter of Credit or
after giving affect to such Letter of Credit on such date.
(c) Officer's Compliance Certificate; Additional
Documents. The Administrative Agent shall have received the current Officer's
Compliance Certificate and each additional document, instrument, legal opinion
or other item of information reasonably requested by it.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
Section 6.1. Representations and Warranties. To induce the
Administrative Agent and Lenders to enter into this Agreement and to induce the
Lenders to make Extensions of Credit, each Borrower hereby represents and
warrants to the Administrative Agent and Lenders (other than with respect to any
Monetization Subsidiary) that:
(a) Organization; Power; Qualification. Each
Borrower and each Subsidiary is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation,
has the power and authority to own its properties and to carry on its business
as now being and hereafter proposed to be conducted and is duly qualified and
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and
authorization, except where any failure to be so qualified would not have a
Material Adverse Effect. The jurisdictions
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in which the Borrowers and their Subsidiaries are organized and qualified to do
business as of the Effective Date are described on Schedule 6.1(a).
(b) Ownership; Investments. Each Subsidiary of any
Borrower as of the Effective Date is listed on Schedule 6.1(b). As of the
Effective Date, except as set forth on Schedule 6.1(b), all outstanding shares
and membership interests of the Subsidiaries are held by JLG. All outstanding
shares of the Borrowers and their Subsidiaries have been duly authorized and
validly issued and are fully paid and nonassessable. As of the Effective Date,
there are no outstanding stock purchase warrants, subscriptions, options,
securities, instruments or other rights of any type or nature whatsoever, which
are convertible into, exchangeable for or otherwise provide for or permit the
issuance of capital stock of any Borrower or any Subsidiary, except as described
on Schedule 6.1(b). As of the Effective Date, no Borrower has any Subsidiaries
or Affiliates, or Investments in or loans to any Person other than those Persons
listed on Schedule 6.1(b) or loans or Investments permitted by Section 10.4.
(c) Authorization of Agreement, Loan Documents and
Borrowing. Each Borrower and each Subsidiary, to the extent a party thereto, has
the right, power and authority under the laws of the jurisdiction of its
formation and under its articles or certificate of incorporation and bylaws, or
its articles of organization and operating agreement, and has taken all
necessary corporate and other action to authorize the execution, delivery and
performance of this Agreement and each of the other Loan Documents to which it
is a party in accordance with their respective terms. This Agreement and each of
the other Loan Documents have been duly executed and delivered by the duly
authorized officers of each Borrower and each Subsidiary party thereto, and each
such document constitutes the legal, valid and binding obligation of each
Borrower party thereto, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar state or federal debtor relief laws from time to time in effect which
affect the enforcement of creditors' rights in general and the availability of
equitable remedies.
(d) Compliance of Agreement, Loan Documents and
Borrowing with Laws, Etc. The execution, delivery and performance by each
Borrower and each Subsidiary of the Loan Documents to which each such Person is
a party, in accordance with their respective terms, the borrowings hereunder and
the transactions contemplated hereby do not and will not, by the passage of
time, the giving of notice or otherwise, (i) require any Governmental Approval
or violate any Applicable Law relating to any Borrower or any Subsidiary, (ii)
conflict with, result in a breach of or constitute a default under the articles
of incorporation, bylaws or other organizational documents of any Borrower or
any Subsidiary or any material indenture, agreement or other instrument to which
such Person is a party or by which any of its properties may be bound or any
Governmental Approval relating to such Person, or (iii) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by such Person other than Liens arising under the
Loan Documents.
(e) Compliance with Law; Governmental Approvals.
Each Borrower and each Subsidiary (i) has all Governmental Approvals required by
any Applicable Law for it to conduct its business, each of which is in full
force and effect, is final and not subject to review on appeal and is not the
subject of any pending or, to the best of its knowledge, threatened attack by
direct or collateral proceeding, and (ii) is in compliance with each
Governmental Approval
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applicable to it and in compliance with all other Applicable Laws relating to it
or any of its respective properties, except where failure to comply would not
have a Material Adverse Effect.
(f) Tax Returns and Payments. Each Borrower and each
Subsidiary has duly filed or caused to be filed all federal, state, local and
other tax returns required by Applicable Law to be filed, and has paid, or made
adequate provision for the payment of, all federal, state, local and other
taxes, assessments and governmental charges or levies upon it and its property,
income, profits and assets which are due and payable, except such taxes as are
being contested in good faith and as to which adequate reserves have been
provided, and except where the failure to file and pay such taxes, fees or other
charges, individually or in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect. To the knowledge of the Responsible
Officers, no Governmental Authority has asserted any Lien or other claim against
any Borrower or any Subsidiary with respect to unpaid taxes which has not been
discharged or resolved. The charges, accruals and reserves on the books of each
Borrower and each Subsidiary in respect of federal, state, local and other taxes
for all Fiscal Years and portions thereof since the organization of the
Borrowers and the Subsidiaries are in the judgment of the Borrowers adequate,
and the Borrowers have no knowledge of any additional taxes or assessments for
any of such years.
(g) Intellectual Property Matters. Each Borrower and
each Subsidiary owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, trade names, trade name rights, and
all other intellectual property which is material to its business. No event has
occurred which permits, or after notice or lapse of time or both would permit,
the revocation or termination of any such rights, and no Borrower nor any
Subsidiary thereof is liable to any Person for infringement under Applicable Law
with respect to any such rights as a result of its business operations, except
where such revocation, termination or infringement would not have a Material
Adverse Effect.
(h) Environmental Matters. Except with respect to
any noncompliance with the following that would not have a Material Adverse
Effect,
(i) The properties owned, leased or operated
by each Borrower and each Subsidiary now or in the past do not contain, and to
their knowledge have not previously contained, any Hazardous Materials in
amounts or concentrations which (A) constitute or constituted a violation of
applicable Environmental Laws or (B) could give rise to liability under
applicable Environmental Laws;
(ii) Each Borrower, each Subsidiary and their
properties and all operations conducted in connection therewith are in
compliance, and have been in compliance, with all applicable Environmental Laws,
and there is no contamination at, under or about such properties or such
operations which could interfere with the continued operation of such properties
or impair the fair saleable value thereof; and each Borrower and each Subsidiary
has received all permits and filed all notifications to carry on its respective
business(es);
(iii) No Borrower or Subsidiary has received
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding
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environmental matters, Hazardous Materials, or compliance with Environmental
Laws, nor does any Borrower or Subsidiary have knowledge or reason to believe
that any such notice will be received or is being threatened;
(iv) Hazardous Materials have not been
transported or disposed of to or from the properties owned, leased or operated
by the Borrowers and their Subsidiaries in violation of, or in a manner or to a
location which could give rise to liability under, Environmental Laws, nor have
any Hazardous Materials been generated, treated, stored or disposed of at, on or
under any of such properties in violation of, or in a manner that could give
rise to liability under, any applicable Environmental Laws;
(v) No judicial proceedings or governmental
or administrative action is pending, or, to the knowledge of any Borrower,
threatened, under any Environmental Law to which any Borrower or any Subsidiary
is or will be named as a party, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to any Borrower, any Subsidiary or such properties or operations;
and
(vi) There has been no release, or to the
best of each Borrower's knowledge, threat of release, of Hazardous Materials at
or from properties owned, leased or operated by any Borrower or any Subsidiary,
now or in the past, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws.
(i) ERISA.
(i) As of the Effective Date, no Borrower,
Subsidiary or ERISA Affiliate maintains or contributes to, or has any obligation
under, any Employee Benefit Plans other than those identified on Schedule
6.1(i);
(ii) Each Borrower and each ERISA Affiliate
is in material compliance with all applicable provisions of ERISA and the
regulations and published interpretations thereunder with respect to all
Employee Benefit Plans except for any required amendments for which the remedial
amendment period as defined in Section 401(b) of the Code has not yet expired.
Each Employee Benefit Plan that is intended to be qualified under Section 401(a)
of the Code has been determined by the Internal Revenue Service to be so
qualified, and each trust related to such plan has been determined to be exempt
under Section 501(a) of the Code. No material liability has been incurred by any
Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or
penalties with respect to any Employee Benefit Plan or any Multiemployer Plan.
Except as set forth on Schedule 6.1(i)(ii), as of the Effective Date, no
Borrower, Subsidiary or ERISA Affiliate maintains or contributes to or has
maintained or contributed to any Multiemployer Plan under which such Borrower,
Subsidiary or ERISA Affiliate could have any withdrawal liability.
(iii) No Pension Plan that does not satisfy
the requirements for a standard termination under Section 4041(b) of ERISA has
been terminated, nor has any accumulated funding deficiency (as defined in
Section 412 of the Code) been incurred (without regard to any waiver granted
under Section 412 of the Code), nor has any funding waiver from
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the Internal Revenue Service been received or requested with respect to any
Pension Plan, nor has any Borrower or any ERISA Affiliate failed to make any
material contributions or to pay any material amounts due and owing as required
by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension
Plan prior to the due dates of such contributions under Section 412 of the Code
or Section 302 of ERISA, nor has there been any event requiring any disclosure
under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension
Plan;
(iv) No Borrower or ERISA Affiliate has: (A)
engaged in a nonexempt prohibited transaction described in Section 406 of the
ERISA or Section 4975 of the Code, (B) incurred any liability to the PBGC which
remains outstanding other than the payment of premiums and there are no premium
payments for which the deadline for payment has passed and which are due and
unpaid, (C) failed to make a required material contribution or material payment
to a Multiemployer Plan, or (D) failed to make a required material installment
or other required material payment under Section 412 of the Code;
(v) No Termination Event has occurred or is
reasonably expected to occur; and
(vi) No proceeding, claim, lawsuit and/or
investigation is existing or, to the knowledge of the Responsible Officers,
threatened concerning or involving any Employee Benefit Plan, other than routine
claims for benefits.
(vii) Except as set forth on Schedule
6.1(i)(vii), as of the Effective Date, the aggregate liability for accrued
benefits and other ancillary benefits under each Pension Plan that is or will be
sponsored or maintained by any Borrower, any Subsidiary or any ERISA Affiliate
(determined on the basis of the actuarial assumptions prescribed for valuing
benefits under Financial Accounting Standard 132 does not exceed the aggregate
fair market value of the assets under each Pension Plan.
(viii) The aggregate liability, if any, of each
Borrower, Subsidiary and ERISA Affiliate arising out of or relating to a failure
of any Employee Benefit Plan to comply with the provisions of ERISA or the Code,
will not have a Material Adverse Effect on any Borrower or Subsidiary; and
(ix) Except as set forth on Schedule
6.1(i)(ix), as of the Effective Date, there does not exist any unfunded
liability (determined on the basis of actuarial assumptions utilized by the
actuary for the plan in preparing the most recent Annual Report) of any
Borrower, Subsidiary or ERISA Affiliate under any plan, program or arrangement
providing post-retirement life or health benefits.
(j) Margin Stock. No Borrower or Subsidiary is
engaged principally or as one of its activities in the business of extending
credit for the purpose of purchasing or carrying any margin stock (as each such
term is defined or used in Regulation U of the Board of Governors of the Federal
Reserve System). No part of the proceeds of any of the Loans or Letters of
Credit will be used for any purpose which violates the provisions of Regulation
T, U or X of such Board of Governors.
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(k) Government Regulation. No Borrower or Subsidiary
is an "investment company" or a company "controlled" by an "investment company"
(as each such term is defined or used in the Investment Company Act of 1940, as
amended). No Borrower or Subsidiary is, or after giving effect to any Extension
of Credit will be, subject to regulation under the Public Utility Holding
Company Act of 1935, as amended, or any other Applicable Law which limits its
ability to incur or consummate the transactions contemplated hereby.
(l) Material Contracts. Schedule 6.1(l) sets forth a
complete and accurate list of all Material Contracts of each Borrower and each
Subsidiary in effect as of the Effective Date not listed on any other Schedule
hereto; other than as set forth in Schedule 6.1(l), each such Material Contract
is, and after giving effect to the consummation of the transactions contemplated
by the Loan Documents will be, in full force and effect in accordance with the
terms thereof. Each Borrower and each Subsidiary has delivered to the
Administrative Agent a true and complete copy of each Material Contract required
to be listed on Schedule 6.1(l) or any other Schedule hereto.
(m) Employee Relations. No Borrower or Subsidiary
is, as of the Effective Date, party to any collective bargaining agreement nor
has any labor union been recognized as the representative of its employees,
except as set forth on Schedule 6.1(m). Except as set forth in Schedule 6.1(m):
(i) no Borrower knows of any pending, and (ii) to the best knowledge of the
Borrowers, there are no threatened or contemplated strikes, work stoppage or
other collective labor disputes involving its employees or those of its
Subsidiaries that would reasonably be expected to result in a Material Adverse
Effect.
(n) Financial Statements. Copies of (A) the
Consolidated balance sheet of JLG and its Subsidiaries as of July 31, 2001 and
the related statements of income and retained earnings and cash flows for the
Fiscal Years then ended (the "Audited JLG Financial Statements") and (B) the
unaudited Consolidated balance sheet of JLG and its Subsidiaries as of April 30,
2002 and related unaudited interim statements of revenue and retained earnings
have been furnished to the Administrative Agent and each Lender. The Audited JLG
Financial Statements, including the related schedules and notes thereto, (Y)
have been prepared in accordance with GAAP and (Z) are complete and correct and
fairly present the assets, liabilities and financial position of JLG and its
Consolidated Subsidiaries as at such dates and the results of operations and
changes of financial position for the periods then ended. Neither JLG nor any of
its Subsidiaries has any Debt, obligation or other unusual forward or long-term
commitment which is not, in accordance with GAAP, fairly presented in the
foregoing financial statements or in the notes thereto.
(o) No Material Adverse Change. Since July 31, 2001,
there has been no material adverse change in the properties, business,
operations, prospects, or condition (financial or otherwise) of JLG or its
Subsidiaries, on a Consolidated basis, which would reasonably be expected to
have a Material Adverse Effect.
(p) Solvency. Excluding intercompany indebtedness,
each Borrower is, and after receipt and application of the first advance under
this Agreement will be, solvent such that (i) the fair value of its assets
(including without limitation the fair salable value of the goodwill and other
intangible property of such Borrower) is greater than the total amount of its
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liabilities, including without limitation, contingent liabilities, (ii) the
present fair salable value of its assets (including without limitation the fair
salable value of the goodwill and other intangible property of such Borrower) is
not less than the amount that will be required to pay the probable liability on
its debts as they become absolute and matured, and (iii) it is able to realize
upon its assets and pay its debts and other liabilities, contingent obligations
and other commitments as they mature in the normal course of business. No
Borrower intends to, nor believes that it will, incur debts or liabilities
beyond its ability to pay as such debts and liabilities mature, and no Borrower
is engaged in a business or transaction, or about to engage in a business or
transaction, for which its property would constitute unreasonably small capital
after giving due consideration to the prevailing practice and industry in which
it is engaged. For purposes of this Section, in computing the amount of
contingent liabilities at any time, it is intended that such liabilities will be
computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that reasonably can be expected to
become an actual matured liability of the applicable Borrower.
Each Borrower hereby agrees that to the extent a Borrower shall
have paid more than its proportionate share of any payment made hereunder, such
Borrower shall be entitled to seek and receive contribution from and against any
other Borrower which has not paid its proportionate share of such payment;
provided however such Borrower shall not seek any such contribution from any
other Borrower until the Obligations have been paid in full and the Commitments
of the Lenders hereunder have been terminated. The provisions of this Section
shall in no respect limit the obligations and liabilities of any Borrower to
Lenders, and each Borrower shall remain liable to Lenders, jointly and
severally, for the full amount of Borrowers' obligations hereunder and under the
other Loan Documents.
(q) Titles to Properties. Each Borrower and each
Subsidiary has such title to the real property, personal property and assets
owned by it as is necessary to the conduct of its business including, but not
limited to, those reflected on the Consolidated balance sheets of JLG and its
Subsidiaries delivered pursuant to Section 6.1(o), except those which have been
disposed of by the Borrowers or their Subsidiaries subsequent to such date,
which dispositions have been in the ordinary course of business or as otherwise
expressly permitted hereunder.
(r) Liens. None of the properties and assets of any
Borrower or any Subsidiary thereof is subject to any Lien, except Liens
permitted pursuant to Section 10.3. To the Borrowers' knowledge, no financing
statement under the Uniform Commercial Code of any state which names any
Borrower or any Subsidiary thereof or any of their respective trade names or
divisions as debtor and which has not been terminated, has been filed in any
state or other jurisdiction and no Borrower or any Subsidiary thereof has signed
any such financing statement or any security agreement or other document
authorizing any secured party thereunder to file any such financing statement,
except, in each case, to perfect those Liens permitted by Section 10.3 hereof.
(s) Debt and Guaranty Obligations. Except for such
Debt and Guaranty Obligations otherwise permitted pursuant to this Agreement,
Schedule 6.1(s) is a complete and correct listing of all Debt and Guaranty
Obligations of each Borrower and each Subsidiary as of the Effective Date in
excess of $1,000,000.
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(t) Litigation. Except for matters existing on the
Effective Date and set forth on Schedule 6.1(t), or other matters which would
not reasonably be expected to have a Material Adverse Effect, there are no
actions, suits or proceedings pending nor, to the knowledge of any Borrower,
threatened against or in any other way relating adversely to or affecting any
Borrower or any Subsidiary thereof or any of their respective properties in any
court or before any arbitrator of any kind or before or by any Governmental
Authority.
(u) Absence of Defaults. No event has occurred or is
continuing which constitutes a Default or an Event of Default, or which
constitutes, or which with the passage of time or giving of notice or both would
constitute, a default or event of default by any Borrower or any Subsidiary
under any Material Contract or judgment, decree or order to which any Borrower
or any Subsidiary is a party or by which any Borrower or any Subsidiary or any
of their respective properties may be bound or which would require any Borrower
or any Subsidiary to make any payment thereunder prior to the scheduled maturity
date therefore, except for those which would not reasonably be expected to have
a Material Adverse Effect.
(v) Accuracy and Completeness of Information. All
written information, reports and other papers and data produced by or on behalf
of each Borrower and any Subsidiary thereof and furnished to the Lenders, taken
as a whole, including without limitation all financial statements, were, at the
time the same were so furnished, complete and correct in all material respects
and did not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statement contained therein not materially
misleading. No document, including without limitation any financial statement,
furnished or written statement made to the Administrative Agent or the Lenders
by any Borrower or any Subsidiary thereof in connection with the negotiation,
preparation or execution of this Agreement or any of the Loan Documents contains
or will contain any untrue statement of a fact material to the creditworthiness
of any Borrower or any Subsidiary nor omits nor will omit to state a fact
necessary in order to make the statements contained therein not materially
misleading. As of the Effective Date, no Borrower is aware of any facts which it
has not disclosed in writing, including without limitation in public filings
under the 1934 Act, to the Administrative Agent having a Material Adverse Effect
as of the Effective Date.
(w) Fees and Commissions. No Borrower owes any fees
or commissions of any kind, or knows of any claim for any fees or commissions,
in connection with Borrowers' obtaining the Commitment or the Loans from
Lenders, except those provided herein.
(x) Foreign Assets Control Regulations. Neither the
borrowing by Borrowers nor their use of the proceeds thereof will violate the
Foreign Assets Control Regulations, the Foreign Funds Control Regulations, the
Transactions Control Regulations, the Cuban Assets Control Regulations, the
Iranian Assets Control Regulations, the Libyan Sanctions Regulations, the
Nicaraguan Trade Control Regulations or the South African Transactions
Regulations of the United States Treasury Department (31 C.F.R. Subtitle B,
Chapter V, as amended).
(y) Public Utility Holding Company Act. No Borrower
is a "public utility holding company" within the meaning of the Public Utility
Holding Company Act of
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1935, as amended (the "1935 Act"), nor does the execution, delivery and
performance of this Agreement and the Notes require any filing, authorization
or consent under the 1935 Act.
(z) Perfection of Security Interests. (i) To the extent
security interests in the assets created by the Security Agreement may be
perfected by filing financing statements under the Uniform Commercial Code,
upon the filing of UCC financing statement amendments in all places as, in the
opinion of Borrowers' counsel, are necessary to perfect security interests
against the Borrowers, no further action, including any filing or recording of
any document, is necessary in order to establish, perfect and maintain
Lenders' and Allfirst Bank's first priority security interests in the assets
created by the Security Agreement, except for the periodic filing of UCC
continuation statements under the Uniform Commercial Code of applicable
jurisdiction and (ii) upon the delivery into the possession of the
Administrative Agent of the shares of stock pledged pursuant to the Pledge
Agreement, no further action, including the filing or recording of any
document, is necessary in order to establish, perfect and maintain Lenders'
and Allfirst Bank's first priority security interests in the stock created by
the Pledge Agreement.
(aa) Senior Subordinated Debt. The Senior Subordinated
Debt is unsecured and subordinated in right of payment to the Obligations as
set forth in the Indenture. The Obligations are Designated Senior Indebtedness
as defined in the Indenture and JLG has taken all action necessary under the
Indenture to designate the Obligations as Designated Senior Indebtedness. As
of the Effective Date, all Debt that is Designated Senior Indebtedness is
listed on Schedule 6.1(aa) hereto.
Section 6.2. Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the
Loan Documents (including but not limited to any such representation or
warranty made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made or deemed to be made at
and as of the Effective Date, shall survive the Effective Date and shall not
be waived by the execution and delivery of this Agreement, any investigation
made by or on behalf of the Lenders or any borrowing hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 13.13 hereof, the Borrowers will furnish or cause to be
furnished to the Administrative Agent and to the Lenders at their respective
addresses as set forth on Schedule 2, or such other office as may be
designated by the Administrative Agent and Lenders from time to time:
Section 7.1. Financial Statements.
(a) Quarterly Financial Statements. As soon as
practicable and in any event within forty-five (45) days after the end of the
first three (3) fiscal quarters of each Fiscal Year, an unaudited Consolidated
balance sheet of JLG and its Consolidated Subsidiaries as of the close of such
fiscal quarter and unaudited Consolidated statements of income, retained
earnings
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and cash flows for the fiscal quarter then ended and that portion of the
Fiscal Year then ended, including the notes thereto, all in reasonable detail
setting forth in comparative form the corresponding figures for the preceding
Fiscal Year and prepared by the Borrowers in accordance with GAAP (excluding
normal year-end adjustments and other exceptions permitted under Regulation
S-X promulgated by the Securities Exchange Commission) and, if applicable,
containing disclosure of the effect on the financial position or results of
operations of any change in the application of accounting principles and
practices during the period, and certified by the chief financial officer or
director of treasury services of JLG to present fairly in all material
respects the financial condition of JLG and its Consolidated Subsidiaries on a
Consolidated basis as of their respective dates and the results of operations
of JLG and its Consolidated Subsidiaries on a Consolidated basis for the
respective periods then ended, subject to normal year end adjustments.
(b) Annual Financial Statements. As soon as practicable
and in any event within ninety (90) days after the end of each Fiscal Year, an
audited Consolidated balance sheet of JLG and its Consolidated Subsidiaries as
of the close of such Fiscal Year and audited Consolidated statements of
income, retained earnings and cash flows for the Fiscal Year then ended,
including the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures for the preceding Fiscal Year, and
the audit report prepared by a nationally recognized independent certified
public accounting firm in accordance with GAAP and, if applicable, containing
disclosure of the effect on the financial position or results of operation of
any change in the application of accounting principles and practices during
the year, and accompanied by a report thereon by such certified public
accountants that is not qualified with respect to scope limitations imposed by
JLG or any of its Consolidated Subsidiaries, as to "going concern" or like
qualification or with respect to accounting principles followed by JLG or any
of its Consolidated Subsidiaries not in accordance with GAAP.
(c) Quarterly Financial Statements of AFS. As soon as
practicable and in any event within forty-five (45) days after the end of the
first three (3) fiscal quarters of each Fiscal Year, an unaudited balance
sheet of AFS as of the close of such fiscal quarter and unaudited statements
of income, retained earnings and cash flows for the fiscal quarter then ended
and that portion of the Fiscal Year then ended, including the notes thereto,
all in reasonable detail prepared by AFS in accordance with GAAP (excluding
normal year-end adjustments and other exceptions permitted under Regulation
S-X promulgated by the Securities Exchange Commission) and, if applicable,
containing disclosure of the effect on the financial position or results of
operations of any change in the application of accounting principles and
practices during the period, and certified by the chief financial officer of
JLG to present fairly in all material respects the financial condition of AFS
and the results of operations of AFS for the period then ended, subject to
normal year end adjustments.
Section 7.2. Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 7.1 (a) or (b), a certificate of
the chief financial officer of JLG in the form of Exhibit E (an "Officer's
Compliance Certificate"), which shall include, without limitation: (i) a
report of delinquencies as of the last day of such fiscal quarter for lease
receivables that are reflected as liabilities on the Consolidated financial
statements of JLG and its Subsidiaries for such fiscal quarter, whether or not
the subject of a Monetization Transaction, (ii) the current percentage that is
reflected as a reserve on the Consolidated financial statements of
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JLG and its Subsidiaries with respect to lease receivables for such fiscal
quarter, (iii) the amount of any Investment in each Monetization Subsidiary by
JLG and its Subsidiaries, and (iv) the total assets (as determined in
accordance with GAAP) of each Monetization Subsidiary.
Section 7.3. Accountants' Certificate. At each time financial
statements are delivered pursuant to Section 7.1(b), a certificate of the
independent public accountants (i) certifying such financial statements
addressed to the Administrative Agent for the benefit of the Lenders, (ii)
stating that in making the examination necessary for the certification of such
financial statements, they obtained no knowledge of any Default or Event of
Default or, if such is not the case, specifying any such Default or Event of
Default and its nature and period of existence, (iii) specifying the reserve
percentage with respect to any Monetization Transactions which are reflected
as debt on the Consolidated balance sheet of JLG and its Consolidated
Subsidiaries for such period and (iv) specifying the amount of Recourse
Obligations.
Section 7.4. Other Reports.
(a) Promptly upon receipt thereof, copies of all final
material reports, if any, submitted to any Borrower or the Board of Directors
of any Borrower by its independent public accountants in connection with their
auditing function, including, without limitation, any management report and
any management responses thereto;
(b) promptly upon transmission thereof, copies of all
such financial statements, proxy statements, notices and reports as any
Borrower or Subsidiary shall send to its stockholders, copies of all
registration statements (without exhibits), and all annual, quarterly or other
reports which any Borrower or Subsidiary files with the Securities and
Exchange Commission (or any governmental body or agency succeeding to the
functions of the Securities and Exchange Commission) including without
limitation, Forms 10Q and Forms 10K; and
(c) Such other information regarding the operations,
business affairs and financial condition of any Borrower or Subsidiary as the
Administrative Agent or any Lender may reasonably request.
Section 7.5. Notice of Litigation and Other Matters. Prompt (but in
no event later than ten (10) Business Days after a Responsible Officer of a
Borrower obtains knowledge thereof) telephonic and written notice of:
(a) the commencement of all proceedings and
investigations by or before any Governmental Authority and all actions and
proceedings in any court or before any arbitrator against or involving any
Borrower or any Subsidiary thereof or any of their respective properties,
assets or businesses, or the happening of any event or the assertion or threat
of any claim which, in any such case, would reasonably be expected to have a
Material Adverse Effect;
(b) any notice of any violation received by any
Borrower or any Subsidiary thereof from any Governmental Authority including,
without limitation, any notice of violation of Environmental Laws which would
reasonably be expected to have a Material Adverse Effect;
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(c) any labor controversy that has resulted in, or
threatens to result in, a strike or other work action against any Borrower or
any Subsidiary thereof that would reasonably be expected to have a Material
Adverse Effect;
(d) any attachment, judgment, lien, levy or order
exceeding $5,000,000 assessed against or threatened against any Borrower or
any Subsidiary thereof (other than Liens permitted under Section 10.3);
(e) any Default or Event of Default;
(f) (i) any unfavorable determination letter from the
Internal Revenue Service regarding the qualification of an Employee Benefit
Plan under Section 401(a) of the Code (along with a copy thereof), (ii) all
notices received by any Borrower or any ERISA Affiliate of the PBGC's intent
to terminate any Pension Plan or to have a trustee appointed to administer any
Pension Plan, (iii) all notices received by any Borrower or any ERISA
Affiliate from a Multiemployer Plan sponsor concerning the imposition or
amount of withdrawal liability pursuant to Section 4202 of ERISA and (iv) any
Borrower obtaining knowledge or reason to know that any Borrower or any ERISA
Affiliate has filed or intends to file a notice of intent to terminate any
Pension Plan under a distress termination within the meaning of Section
4041(c) of ERISA which would reasonably be expected to have a Material Adverse
Effect;
(g) with respect to the Environmental Laws, except as
would not reasonably be expected to have a Material Adverse Effect, in
connection with the conduct of any Borrower's or any Subsidiary's business(es)
or operations, any Person (including, without limitation, EPA or any state or
local agency) provides oral or written notification to any Borrower or any
Subsidiary, or any Borrower or any Subsidiary otherwise becomes aware of a
condition with regard to an actual or imminently threatened release of
Hazardous Substances; or an assertion of liability under the Environmental
Laws of any actual or alleged failure to comply with or perform, breach,
violation or default under any such statutes or regulations or of the
occurrence or existence of any facts, events or circumstances which with the
passage of time, the giving of notice, or both, could create such a breach,
violation or default; and
(h) any event which makes any of the representations
set forth in Section 6.1 inaccurate in any material respect as of the date it
was made.
Section 7.6. Accuracy of Information. All written information,
reports, statements and other papers and data furnished by or on behalf of the
Borrowers to the Administrative Agent or any Lender (other than financial
forecasts) whether pursuant to this Article VII or any other provision of this
Agreement, taken as a whole, shall be, at the time the same is so furnished,
complete and correct in all material respects and will not contain any untrue
statement of material fact or omit to state a material fact necessary to make
the statements contained therein not materially misleading.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in
full and the Commitments terminated, unless consent has been obtained in the
manner provided for in
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Section 13.13, each Borrower will, and will cause each Subsidiary (other than
a Monetization Subsidiary) to:
Section 8.1. Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 10.5: (i) preserve and maintain its separate
legal existence, (ii) maintain all rights, franchises, licenses and privileges
necessary to the conduct of its business (provided, that no Borrower shall be
required to maintain, and shall not be required to cause any of its
Subsidiaries to maintain, any such rights, franchises, licenses, or privileges
if the failure to do so would not reasonably be expected to result in a
Material Adverse Effect), and (iii) qualify and remain qualified as a foreign
corporation or other entity and authorized to do business in each jurisdiction
in which the failure to so qualify would have a Material Adverse Effect.
Section 8.2. Maintenance of Property. Except for Asset Sales
permitted by Section 10.6(b) or disuse in the ordinary course of business,
protect and preserve all properties useful in and material to its business,
including all material copyrights, patents, trade names and trademarks and
other intellectual property; maintain in good working order and condition,
normal wear and tear excepted, all material buildings, equipment and other
tangible real and personal property; and from time to time make or cause to be
made all renewals, replacements and additions to such material property
necessary for the conduct of its business.
Section 8.3. Insurance. Maintain insurance with financially sound and
reputable insurance companies, against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by the
Collateral Security Documents and Applicable Law, and on the Closing Date and
from time to time thereafter deliver to the Administrative Agent upon its
request a detailed list of the insurance then in effect, stating the names of
the insurance companies, the amounts and rates of the insurance, the dates of
the expiration thereof and the properties and risks covered thereby.
Section 8.4. Accounting Methods and Financial Records. Maintain a
system of accounting, and keep such books, records and accounts (which shall
be true and complete in all material respects) as may be required or as may be
necessary to permit the preparation of financial statements in accordance with
GAAP and in compliance with the regulations of any Governmental Authority
having jurisdiction over it or any of its properties.
Section 8.5. Payment and Performance of Obligations. Pay and perform
all Obligations under this Agreement and the other Loan Documents, and pay or
perform (a) all taxes, assessments and other governmental charges that may be
levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices; provided, that a Borrower or Subsidiary may contest any item
described in clauses (a) or (b) of this Section 8.5 in good faith so long as
adequate reserves are maintained with respect thereto in accordance with GAAP.
Section 8.6. Compliance With Laws and Approvals. Observe and remain
in compliance with all Applicable Laws and maintain in full force and effect
all Governmental Approvals, in each case applicable to the conduct of its
business, except where failure to comply or maintain would not reasonably be
expected to have a Material Adverse Effect.
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Section 8.7. Environmental Laws. In addition to and without limiting
the generality of Section 8.6, (a) comply with, and ensure such compliance by
all tenants and subtenants with all applicable Environmental Laws and obtain
and comply with and maintain, and ensure that all tenants and subtenants
obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, (b) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws, and promptly comply with all lawful orders and directives
of any Governmental Authority regarding Environmental Laws, except in the case
of clauses (a) and (b) where such non-compliance or failure to conduct,
complete or comply would not reasonably be expected to have a Material Adverse
Effect, and (c) defend, indemnify and hold harmless the Administrative Agent
and the Lenders, and their respective parents, Subsidiaries, Affiliates,
employees, agents, officers and directors, from and against any claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the presence of Hazardous Materials,
or the violation of, noncompliance with or liability under any Environmental
Laws applicable to the operations of any Borrower or Subsidiary, or any
orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing directly result from
the gross negligence or willful misconduct of the party seeking
indemnification therefor.
Section 8.8. Compliance with ERISA. In addition to and without
limiting the generality of Section 8.6, (a) comply in all material respects
with all applicable provisions of ERISA and the regulations and published
interpretations thereunder with respect to all Employee Benefit Plans, (b) not
take any action or fail to take action the result of which could be a material
liability to the PBGC or to a Multiemployer Plan, or incur any material
accumulated funding deficiency within the meaning of ERISA and the regulations
promulgated thereunder, (c) do or cause to be done all such acts and things
that are required to maintain the qualified status of each Employee Benefit
Plan intended to be a qualified plan and the tax exempt status of each trust
forming part of such Employee Benefit Plans, (d) operate each Employee Benefit
Plan that is a group health plan as defined in Section 4980B(g)(2) of the Code
in such a manner that will not incur material tax liability under Section
4980B of the Code or material liability to any qualified beneficiary as
defined in Section 4980B of the Code, (e) furnish to the Administrative Agent
upon the Administrative Agent's request such additional information about any
Employee Benefit Plan as may be reasonably requested by the Administrative
Agent, (f) not permit any event to occur (i) as described in Section 4042 of
ERISA or (ii) which is likely to result in the imposition of a lien pursuant
to Section 412 of the Code or Section 302 of ERISA, (g) notify Lenders in
writing promptly after it has come to the attention of a Borrower of the
assertion or threat of any "reportable event" for which the requirement of a
30-day notice to the PBGC is not waived or of any other event described in
Section 4042 of ERISA (relating to the soundness of an Employee Benefit Plan)
or of the PBGC's ability to assert a material liability against it which would
be reasonably expected to have a Material Adverse Effect or impose a lien on
any Borrower's, Subsidiary's, or ERISA Affiliate's properties or assets
pursuant to Section 412 of the Code or Section 302 of ERISA and (h) refrain
from engaging in any prohibited transactions or actions causing possible
liability under Section 502 of ERISA, except in the case of any of the
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foregoing clauses (a) through (h) where such non-compliance would not have a
Material Adverse Effect.
Section 8.9. Intentionally Omitted.
Section 8.10. Conduct of Business. Engage only in businesses in
substantially the same fields as the businesses conducted on the Closing Date
and in lines of business reasonably related thereto.
Section 8.11. Visits and Inspections. Permit representatives of the
Lenders from time to time, upon reasonable prior notice and during normal
business hours, to visit and inspect its properties; audit and make extracts
from its books, records and files, including, but not limited to, management
letters prepared by independent accountants; and discuss with its principal
officers, and its independent accountants, its business, assets, liabilities,
financial condition, results of operations and business prospects.
Section 8.12. Additional Subsidiaries; Monetization Subsidiaries.(a)
On or prior to the date any domestic Material Subsidiary of JLG (other than a
Monetization Subsidiary) is created or acquired after the Closing Date, such
domestic Material Subsidiary shall execute and deliver to the Administrative
Agent joinder documents, including without limitation a joinder agreement in
the form attached hereto as Exhibit F, joinders to the Collateral Security
Documents, favorable legal opinions addressed to the Administrative Agent and
Lenders, and such other documents and closing certificates as may be
reasonably requested by the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
(b) On or prior to the date any non-domestic Material
Subsidiary of JLG (other than a Monetization Subsidiary) is created or
acquired after the Closing Date, JLG or one of its Wholly-Owned Subsidiaries,
as the case may be, shall deliver to the Administrative Agent a Pledge
Agreement, in form and substance satisfactory to the Administrative Agent,
under which JLG or such Wholly-Owned Subsidiary pledges to the Administrative
Agent sixty-five percent (65%) of the capital stock or other ownership
interests of such non-domestic Material Subsidiary.
(c) Upon the creation of a Monetization Subsidiary, JLG
or the applicable Borrower shall enter into a Pledge Agreement or amendment to
Pledge Agreement in form and substance reasonably acceptable to Administrative
Agent for the benefit of Lenders, pledging all the stock of such Monetization
Subsidiary as collateral for the Obligations and any "Obligations" as defined
in the Overdraft Facility not exceeding $25,000,000 in principal amount;
provided, however, that if such pledge is prohibited by the parties to the
Monetization Transaction for which such Monetization Subsidiary was created,
such stock will not be pledged to Lenders, but shall be subject to the
prohibition on Liens set forth in Section 10.3 hereof.
Section 8.13. Deposit Account. Maintain a deposit account with
Administrative Agent; provided that a deposit account of JLG shall satisfy
this requirement for all Borrowers and their Subsidiaries.
Section 8.14. Transactions Among Affiliates. Cause all transactions
between and among Affiliates ("Affiliate Transactions") to be on an
arms-length basis and on such terms and
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conditions as are customary in the applicable industry between and among
unrelated entities. This Section 8.14 shall not apply to:
(a) transactions with or among the Borrowers:
(b) reasonable fees and compensation paid to, and any
indemnity provided on behalf of, officers, directors, employees, consultants
or agents of any of the Borrowers or any Subsidiary as determined in good
faith by such Borrower's Board of Directors;
(c) any transactions undertaken pursuant to any
contractual obligations or rights in existence on the Closing Date as in
effect on the Closing Date;
(d) any Monetization Transactions;
(e) any transaction with a joint venture or similar
entity otherwise permitted hereunder which would constitute an Affiliate
Transaction solely because the Borrower or Subsidiary owns an equity interest
in or otherwise controls the joint venture or similar entity; and
(f) loans and advances to officers, directors and
employees of any of the Borrowers or the Subsidiaries, in each case made in
the ordinary course of business and permitted pursuant to Section 10.4(g).
Section 8.15. Costs and Expenses. Pay or reimburse Administrative
Agent for all reasonable out-of-pocket costs and expenses (including but not
limited to reasonable attorneys' fees and disbursements) Administrative Agent
may pay or incur in connection with the preparation and review of this
Agreement and all waivers, consents and amendments in connection therewith and
all other documentation related thereto, and after a Default or Event of
Default, the collection, administration or enforcement of the same, including
without limitation any fees and disbursements incurred in defense of or to
retain amounts of principal, interest or fees paid. All obligations provided
for in this Section 8.14 shall survive any termination of this Agreement or
the Commitment and the repayment of the Obligations.
Section 8.16. Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the
Administrative Agent or any Lender may reasonably require to document and
consummate the transactions contemplated hereby and to vest completely in and
insure the Administrative Agent and the Lenders their respective rights under
this Agreement, the Notes, the Letters of Credit and the other Loan Documents.
Section 8.17. Intentionally Omitted.
Section 8.18. Intentionally Omitted.
Section 8.19. AFS Financing Agreement Transactions. On and after
October 4, 2001: (i) maintain at least ninety percent (90%) of the Customer
Financing Value of all Customer Financings as AFS Financing Agreements and
(ii) assure that the receivables created by AFS Financing Agreements are
reflected on the books of AFS.
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Section 8.20. Senior Subordinated Debt. Use the net proceeds from the
issuance of the Senior Subordinated Debt: (i) substantially concurrently with
the effectiveness of this Agreement, to pay in full all outstanding amounts
under (and shall irrevocably terminate) the Working Capital Facility and (ii)
to pay each LIBOR Rate Loan outstanding under this Agreement as of the
Effective Date no later than the last day of each Interest Period relating
thereto.
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 13.13 hereof, JLG and its Consolidated Subsidiaries will not:
Section 9.1. Leverage Ratio. As of the last day of each fiscal
quarter of JLG and its Consolidated Subsidiaries, permit the Leverage Ratio to
exceed the level in the right column below for the fiscal quarter ending
during the corresponding period in the left column below:
Period Level
------ -----
Effective Date through July 31, 2003 4.50 to 1.00
August 1, 2003 and thereafter 4.00 to 1.00
Section 9.2. Adjusted Interest Coverage Ratio. As of the last day of
each fiscal quarter of JLG and its Consolidated Subsidiaries, permit the
Adjusted Interest Coverage Ratio to be less than the level in the right column
below for the fiscal quarter ending during the corresponding period in the
left column below:
Period Level
------ -----
Effective Date through July 31, 2002 3.25 to 1.00
August 1, 2002 through October 31, 2002 3.50 to 1.00
November 1, 2002 through July 31, 2003 3.75 to 1.00
August 1, 2003 and thereafter 4.00 to 1.00
Section 9.3. Minimum Net Worth. As of the last day of each fiscal
quarter of JLG and its Consolidated Subsidiaries, permit Adjusted Net Worth to
be less than (i) $176,600,000 plus (ii) fifty percent (50%) of the
Consolidated net income (as determined in accordance with GAAP) of JLG and its
Consolidated Subsidiaries for each fiscal quarter of JLG and its Consolidated
Subsidiaries ending after July 31, 1998, without deduction for losses.
Section 9.4. Adjusted Leverage Ratio. As of the last day of each
fiscal quarter of JLG and its Consolidated Subsidiaries, permit the Adjusted
Leverage Ratio to exceed the level
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in the right column below for the fiscal quarter ending during the
corresponding period in the left column below:
Period Level
------ -----
Effective Date through July 31, 2003 4.75 to 1.00
August 1, 2003 and thereafter 4.50 to 1.00
Section 9.5. Senior Leverage Ratio. As of the last day of each fiscal
quarter of JLG and its Consolidated Subsidiaries, permit the Senior Leverage
Ratio to exceed the level in right column below for the fiscal quarter ending
during the corresponding period in the left column below:
Period Level
------ -----
Effective Date through July 31, 2003 2.25 to 1.00
August 1, 2003 and thereafter 2.00 to 1.00
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 13.13 hereof, each Borrower will not and will not permit any
of its Subsidiaries (other than Monetization Subsidiaries) to:
Section 10.1. Limitations on Debt and Guaranty Obligations. Create,
incur, assume or suffer to exist any Debt except:
(a) the Obligations;
(b) [intentionally omitted];
(c) Debt not exceeding $50,000,000 in aggregate
outstanding principal amount;
(d) Debt incurred in connection with: (i) Hedging
Agreements initiated through a Lender either with that Lender or an Affiliate
of that Lender, (ii) a Hedging Agreement with a counterparty and upon terms
and conditions (including interest rate terms and conditions) reasonably
satisfactory to the Administrative Agent or (ii) a Hedging Agreement set forth
on Schedule 10.1(d) hereto;
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(e) Senior Subordinated Debt and the renewal,
refinancing, refunding or extension thereof on substantially similar terms to
those in the Indenture in an aggregate outstanding principal amount not to
exceed $250,000,000;
(f) Debt existing on the Closing Date and not otherwise
permitted under this Section 10.1, as set forth on Schedule 6.1(t), and the
renewal and refinancing, refunding or extension (but not the increase of the
aggregate principal amount thereof) thereof;
(g) Debt of Subsidiaries that are not Borrowers,
provided that such outstanding Debt shall not exceed, in the aggregate
outstanding principal amount at any one time for all such Subsidiaries, Ten
Million Dollars ($10,000,000);
(h) so long as the aggregate principal amount
outstanding at any time does not collectively exceed twenty percent (20%) of
Adjusted Net Worth: (i) Debt of the Borrowers and their Subsidiaries incurred
in connection with Capital Leases; (ii) purchase money Debt of the Borrowers
and their Subsidiaries; and (iii) indebtedness of the Borrowers and their
Subsidiaries incurred in connection with Operating Leases, the amount of which
Operating Leases shall be determined by their respective Operating Lease
Values;
(i) the PIDA Debt, in an aggregate outstanding
principal amount not to exceed $3,615,198;
(j) Debt of any Borrower to any Subsidiary of any
Borrower and Debt of any Subsidiary of any Borrower to any Borrower or any
other Subsidiary of any Borrower; provided, however, that the aggregate
principal amount outstanding of Debt of Borrowers to all non-Borrower
Subsidiaries of any Borrower shall not exceed twenty percent (20%) of Adjusted
Net Worth;
(k) Guaranty Obligations relating to Debt, without
duplication, permitted under clauses (a) through (j) of this Section 10.1;
(l) Guaranty Obligations incurred in connection with
the sale or discount of assets to the extent permitted by Section 10.6(d).
(m) Debt incurred in connection with Monetization
Transactions; provided, that if the Recourse Obligations incurred in
connection with Monetization Transactions would exceed $500,000 for any
Monetization Transaction or $1,250,000 in the aggregate for all Monetization
Transactions in any fiscal quarter, JLG shall, before the closing of each such
Monetization Transaction, calculate compliance with each of the financial
covenants set forth in Article IX as of the end of the fiscal quarter
immediately preceding such closing, after giving pro forma effect to such
Monetization Transaction as though the closing had occurred on the last day of
such fiscal quarter, provided further, that if the related Recourse
Obligations would exceed $10,000,000 for any Monetization Transaction or
$25,000,000 in the aggregate for all Monetization Transactions in any fiscal
quarter, JLG shall deliver to the Administrative Agent, not less than ten (10)
days prior to the closing of such Monetization Transaction, a certificate of
the chief financial officer, a treasurer or any assistant treasurer of JLG
demonstrating compliance with each of the financial covenants set forth in
Article IX as of the end of the fiscal quarter
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immediately preceding such closing, after giving pro forma effect to such
Monetization Transaction as though the closing had occurred on the last day of
such fiscal quarter;
(n) Debt incurred in connection with Equipment
Sale/Leaseback and Rental Fleet Sale/Leaseback transactions; provided, that
(i) in connection with an Equipment Sale/Leaseback, the transaction is limited
to the equipment placed in service not more than six months prior to the
effective date of such Equipment Sale/Leaseback and (ii) the aggregate amount
of Debt outstanding in connection with Rental Fleet Sale/Leaseback
transactions shall not exceed 15% of Adjusted Net Worth;
(o) MOSAs;
(p) Debt of a Borrower or any of its Subsidiaries
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (including in the case of daylight
overdrafts so long as such overdrafts are paid in full by the close of
business on the day such overdraft was incurred) drawn against insufficient
funds in the ordinary course of business; provided that such Debt is
extinguished within two business days of incurrence; and
(q) Guaranty Obligations other than MOSAs which, when
aggregated with the outstanding amount of the following, would not exceed ten
percent (10%) of Adjusted Net Worth: (i) Investments in joint ventures, (ii)
Investments in customers, other than Customer Financings, in order to
facilitate sales of goods and services to such customers, and (iii) other
Investments not to exceed $15,000,000.
Section 10.2. Intentionally Omitted.
Section 10.3. Limitations on Liens. Create, incur, assume or suffer
to exist any Lien on or with respect to any of its assets or properties
(including without limitation shares of capital stock or other ownership
interests), real or personal, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental
charges or levies not yet due or as to which the period of grace (not to
exceed thirty (30) days), if any, related thereto has not expired or which are
being contested in good faith and by appropriate proceedings if adequate
reserves are maintained to the extent required by GAAP;
(b) the claims of materialmen, mechanics, carriers,
warehousemen, processors, landlords or mortgagees of landlords, for labor,
materials, supplies or rentals incurred in the ordinary course of business,
(i) which are not overdue for a period of more than thirty (30) days or (ii)
which are being contested in good faith and by appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the
ordinary course of business in connection with, or to secure payment of,
obligations under workers' compensation, unemployment insurance or similar
legislation or obligations under contracts arising in the ordinary course of
business;
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(d) Liens constituting encumbrances in the nature of
zoning restrictions, easements and rights or restrictions of record on the use
of real property, which in the aggregate are not substantial in amount and
which do not, in any case, detract from the value of such property or impair
the use thereof in the ordinary conduct of business;
(e) Liens not otherwise permitted by this Section 10.3
and in existence on the Closing Date and described on Schedule 10.3, and Liens
replacing Liens described on Schedule 10.3 pursuant to a renewal, refinancing,
refunding or extension of Debt as permitted by Section 10.1(f);
(f) Liens securing Debt permitted under Section
10.1(h); provided that (i) in the case of Debt described in clause (ii) of
Section 10.1(h) such Liens shall be created substantially simultaneously with
the acquisition of the related asset, (ii) such Liens do not at any time
encumber any assets other than the assets financed by such Debt and assets
related thereto, and (iii) the principal amount of Debt secured by any such
Lien shall at no time exceed one hundred percent (100%) of the original
purchase price of the assets financed by such Debt and assets related thereto
at the time it was acquired;
(g) Liens securing Debt not to exceed $25,000,000 in
principal amount permitted under Section 10.1(c) in connection with the
Overdraft Facility;
(h) Liens on Sale/Leaseback Transferred Assets incurred
in connection with Equipment Sale/Leaseback or Rental Fleet Sale/Leaseback
transactions;
(i) Liens on Monetization Assets that are the subject
of Monetization Transactions;
(j) Liens in favor of Administrative Agent for the
benefit of the Lenders to secure the Obligations;
(k) attachment, judgment or other similar Liens arising
in connection with court or arbitration proceedings for liabilities in excess
of $5,000,000; provided that the same are discharged within 30 days;
(l) statutory and contractual bankers' Liens on monies
held in bank accounts in the ordinary course of business;
(m) possessory Liens in favor of brokers and dealers
arising in connection with the acquisition or disposition of Investments
permitted by Section 10.4(b); provided that such Liens (i) attach only to such
Investments and (ii) secure only obligations not in excess of $250,000
incurred in the ordinary course and arising in connection with the acquisition
or disposition of such Investments and not any obligation in connection with
margin financing; and
(n) Liens on the capital stock of any non-domestic
Material Subsidiary that is not required to be pledged to the Administrative
Agent pursuant to Section 8.12(b).
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Section 10.4. Limitations on Investments. Make any Investment in any
Person (including any Investment by JLG in any of its Subsidiaries), except:
(a) Investments by Borrowers in other Borrowers and in
Wholly-Owned Subsidiaries (including without limitation Monetization
Subsidiaries) and Investments by Subsidiaries in Wholly-Owned Subsidiaries
(including without limitation Monetization Subsidiaries) and in Borrowers, not
otherwise permitted by this Section 10.4 (including without limitation the
contribution of equipment and related assets or Monetization Assets between
Borrowers in connection with Customer Financing transactions or Monetization
Transactions); provided, however, that Investments in all non-Borrower
Subsidiaries, other than Monetization Subsidiaries, by Borrowers shall not
exceed twenty percent (20%) of Adjusted Net Worth; provided, further, that
Investments in Monetization Subsidiaries (other than Monetization Subsidiaries
formed in connection with a sale or discount of accounts receivable permitted
under Section 10.6(d)) shall be limited to twenty-five percent (25%) of the
fair market value of the Monetization Assets transferred to such Monetization
Subsidiary;
(b) Investments in (i) marketable direct obligations
issued or unconditionally guaranteed by the United States of America or any
agency thereof maturing within 120 days from the date of acquisition thereof,
(ii) commercial paper maturing no more than 120 days from the date of creation
thereof and currently having the highest rating obtainable from either
Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies,
Inc. or Moody's Investors Service, Inc., (iii) certificates of deposit
maturing no more than 120 days from the date of creation thereof issued by
commercial banks incorporated under the laws of the United States of America,
each having combined capital, surplus and undivided profits of not less than
$500,000,000 and having a rating of A or better by a nationally recognized
rating agency; provided, that the aggregate amount invested in such
certificates of deposit shall not at any time exceed $5,000,000 for any one
such certificate of deposit and $10,000,000 for any one such bank, (iv) time
deposits maturing no more than 30 days from the date of creation thereof with
commercial banks or savings banks or savings and loan associations each having
membership either in the FDIC or the deposits of which are insured by the FDIC
and in amounts not exceeding the maximum amounts of insurance thereunder, (v)
United States Treasury Department securities, (vi) banker's acceptances, (vii)
corporate debt instruments having a rating of A or better by a nationally
recognized rating agency, (viii) repurchase agreements that are secured by
collateral having a value of 102% of such repurchase agreement, where such
collateral is held by a third party custodian or (ix) money market funds;
(c) Investments by a Borrower or any Subsidiary in the
form of acquisitions of all or substantially all of the business or a line of
business (whether by the acquisition of capital stock, assets or any
combination thereof) of any other Person, provided, that: (i) in the case of
any acquisition with respect to which the purchase price to be paid by the
Borrower or any Subsidiary is in excess of $20,000,000, at least ten (10)
Business Days prior to the consummation of such acquisition, JLG delivers to
Administrative Agent one (1) year of historical financial information for the
entity to be acquired and a certificate of the chief financial officer, a
treasurer or any assistant treasurer of JLG demonstrating compliance with (and
showing the calculations of) each of the financial covenants set forth in
Article IX: (x) as of the end of the fiscal quarter immediately preceding the
closing of such acquisition, after giving pro forma effect in accordance with
Regulation S-X promulgated by the Securities Exchange
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Commission, as in effect from time to time, to such acquisition as though the
closing had occurred on the last day of such fiscal quarter and (y) on a
projected basis for the fiscal year following the acquisition, after giving
pro forma effect in accordance with Regulation S-X promulgated by the
Securities Exchange Commission, as in effect from time to time, to such
acquisition as though the closing had occurred on the last day of the fiscal
quarter immediately preceding the closing of such acquisition; (ii) there is
no Event of Default or Default hereunder at the time of such acquisition or
Investment or which would be caused by such acquisition or Investment; and
(iii) such business or line of business is in substantially the same fields as
the businesses conducted on the Closing Date and in lines of business
reasonably related thereto;
(d) (i) Investments in joint ventures, (ii) Investments
in customers, not including Customer Financings, in order to facilitate sales
of goods or services to such customers and (iii) other Investments not to
exceed $15,000,000 at any time outstanding; so long as the aggregate
outstanding amount of the foregoing, plus the outstanding amount of Guaranty
Obligations (other than MOSAs) of the Borrowers and their Subsidiaries, does
not exceed ten percent (10%) of Adjusted Net Worth.
(e) Customer Financings; provided, that, to the extent
permitted by Section 8.19 hereof: (i) the Customer Financing Value of all
Customer Financings outstanding at any time (other than Customer Financings in
connection with AFS Financing Agreements), shall not exceed Fifteen Million
Dollars ($15,000,000) at any time and (ii) the Customer Financing Value of all
AFS Financing Agreements outstanding at any time shall not exceed One Hundred
and Fifty Million Dollars ($150,000,000);
(f) extensions of trade credit in the ordinary course
of business;
(g) loans and advances to officers, directors and
employees of any of the Borrowers or their respective Subsidiaries in the
ordinary course of business, including without limitation, for travel,
entertainment, moving and other relocation expenses;
(h) Investments received as a result of the bankruptcy
or reorganization of any Person or taken in settlement of or other resolution
of claims or disputes, and, in each case, extensions, modifications and
renewals thereof;
(i) Investments made by the Borrowers as a result of
non-cash consideration for dispositions permitted under Section 10.6; and
(j) Investments not otherwise permitted by this Section
10.4 which are described on Schedule 10.4; and any extension, modification or
renewal of any Investments listed on Schedule 10.4, excluding Investments
involving additional advances, contributions or other increases thereof, other
than as a result of the accrual or accretion of interest or original issue
discount or payment-in-kind pursuant to the terms of such Investment as of the
Effective Date.
Section 10.5. Limitations on Mergers and Liquidation. Merge,
consolidate or enter into any similar combination with any other Person or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution) except:
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(a) any Wholly-Owned Subsidiary of a Borrower may
merge, consolidate or enter into any similar combination with any Borrower or
any other Wholly-Owned Subsidiary of a Borrower;
(b) any Wholly-Owned Subsidiary may merge into the
Person such Wholly-Owned Subsidiary was formed to acquire in connection with
an acquisition permitted by Section 10.4(c);
(c) any Wholly-Owned Subsidiary of a Borrower may
wind-up into a Borrower or any other Wholly-Owned Subsidiary of a Borrower;
and
(d) any Wholly-Owned Subsidiary that is not a Borrower
may liquidate or dissolve itself (or suffer any liquidation or dissolution).
Section 10.6. Limitations on Sale of Assets. Enter into any Asset
Sale except:
(a) an Asset Sale of inventory in the ordinary course
of business (including without limitation leases or sales of equipment which
constitute Customer Financings);
(b) an Asset Sale in the ordinary course of business of
assets no longer used or usable in the business of a Borrower or any
Subsidiary;
(c) an Asset Sale to a Borrower or any Wholly-Owned
Subsidiary of a Borrower (including without limitation contributions of
equipment and related assets and Monetization Assets between Borrowers or to a
Monetization Subsidary in connection with Customer Financing transactions or
Monetization Transactions); provided, that Borrowers shall not enter into
Asset Sales with Monetization Subsidiaries which are not the subject of the
Monetization Transaction for which such Monetization Subsidiary was created;
(d) the sale or discount without recourse of accounts
receivable which arose in the ordinary course of business; provided, however,
that the aggregate face amount of outstanding accounts receivable so sold or
discounted and outstanding at any time shall not exceed One Hundred Million
Dollars ($100,000,000.00); provided further, however, that for purposes of
this Section 10.6(d), "outstanding" means accounts receivable which are by
their terms not due;
(e) leases of equipment, having a term of less than
twelve (12) months from the date of inception thereof, in the ordinary course
of business, on terms pursuant to which the leased equipment remains (for tax
and accounting purposes) an asset of a Borrower or a Subsidiary;
(f) an Asset Sale of Sale/Leaseback Transferred Assets
to a lessor in connection with permitted Equipment Sale/Leaseback or Rental
Fleet Sale/Leaseback transactions;
(g) Asset Sales of Monetization Assets to third parties
or Monetization Subsidiaries in connection with Monetization Transactions;
provided, that, with respect to each
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such Asset Sale other than a sale or discount of accounts receivable permitted
under clause (d) of this Section 10.6: (i) the Borrower or Subsidiary of a
Borrower party to such Asset Sale receives a purchase price no less than fair
market value of the Monetization Assets sold and (ii) the purchase price
financed by third parties in transactions with a Monetization Subsidiary is no
less than seventy-five percent (75%) of the fair market value of such
Monetization Assets;
(h) Asset Sales by any Borrower of assets having a fair
market value not to exceed $5,000,000 in the aggregate for any fiscal year;
and
(i) transactions which may constitute Asset Sales and
are otherwise permitted under Sections 10.3, 10.4 or 10.7.
Section 10.7. Limitations on Stock Transactions. (i) Purchase,
redeem, retire or otherwise acquire, directly or indirectly, any shares of its
capital stock other than, if no Default or Event of Default has occurred and
is continuing, (x) the purchase of up to one percent (1%) of its outstanding
shares on an annual basis, (y) repurchases by JLG of its common stock or
options, warrants or other securities exercisable or convertible into its
common stock from employees or directors of JLG or any of its Subsidiaries or
their authorized representatives upon the death, disability or termination of
employment or directorship of the employees or directors, in an aggregate
amount not to exceed $5,000,000 in the aggregate and (z) redemptions of any
common stock purchase rights issued under the JLG Rights Agreement at a
redemption price pursuant to the terms of such rights plan, so long as such
redemption is for common stock or cash in an aggregate amount not to exceed
$200,000; or (ii) make any distribution of cash, property or assets among the
holders of shares of its capital stock other than, (w) in the absence of a
Default or Event of Default, the payment of regular dividends in accordance
with reasonable business practice in the good faith judgment of the board of
directors of a Borrower, (x) distributions payable solely in common stock of
JLG, (y) distributions paid to a Borrower and distributions paid by any
Subsidiary to any Wholly-Owned Subsidiary and (z) distributions of common
stock or other equity securities upon exercise of the "Rights" as defined in
the JLG Rights Agreement.
Section 10.8. Intentionally Omitted.
Section 10.9. Certain Accounting Changes. Change its Fiscal Year end,
or make any change in its accounting treatment and reporting practices except
as permitted by GAAP, subject to Section 1.3(b) hereof.
Section 10.10. Amendments; Payments and Prepayments of Senior
Subordinated Debt. (i) Cancel, amend, restate, modify or supplement: (A) the
subordination provisions set forth in Articles X or XII of the Indenture or
(B) any defined terms relating to the subordination provisions set forth in
Articles X or XII of the Indenture in any way that adversely impacts the
Lenders; (ii) cancel or forgive, make any voluntary or optional payment or
prepayment on, or redeem or acquire for value (including without limitation by
way of depositing with any trustee with respect thereto money or securities
before due for the purpose of paying when due) any Senior Subordinated Debt or
(iii) offer to purchase the Senior Subordinated Debt under either Section 3.8
or 3.11 of the Indenture.
Section 10.11. Intentionally Omitted.
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Section 10.12. Use of Proceeds. Engage as its principal business in
the extension of credit to purchase or carry margin securities within the
meaning of Regulation U of the Board of Governors of the Federal Reserve
System.
ARTICLE XI
DEFAULT AND REMEDIES
Section 11.1. Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule or
regulation of any Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and
Reimbursement Obligations. The Borrowers shall default in any payment of
principal of any Loan, Note or Reimbursement Obligation when and as due
(whether at maturity, by reason of acceleration or otherwise).
(b) Other Payment Default. The Borrowers shall default
in the payment when and as due (whether at maturity, by reason of acceleration
or otherwise) of (i) interest on any Loan, Note or Reimbursement Obligation
and such default shall remain uncured for a period of three (3) Business Days
after the scheduled date of payment of such interest or (ii) any other
Obligation (including without limitation any fees due to Administrative Agent
or Lenders hereunder) and such default shall remain uncured for a period of
three (3) Business Days following notice by the Administrative Agent.
(c) Misrepresentation. Any representation or warranty
made or deemed to be made in accordance with the terms hereof by any Borrower
or any Subsidiary under this Agreement, any Loan Document or any amendment
hereto or thereto, shall at any time prove to have been incorrect or
misleading in any material respect when made or deemed made.
(d) Default in Performance of Certain Covenants. Any
Borrower or any Subsidiary shall default in the performance or observance of
any covenant or agreement contained in: (i) Sections 7.1, 7.2 or 7.5(e) of
this Agreement, and such default shall remain uncured for a period of five (5)
Business Days following the due date of each delivery thereunder, or (ii)
Articles IX or X of this Agreement.
(e) Default in Performance of Other Covenants and
Conditions. Any Borrower or any Subsidiary thereof shall default in the
performance or observance of any term, covenant, condition or agreement
contained in this Agreement (other than as specifically provided for otherwise
in this Section 11.1) or any other Loan Document and such default shall
continue for a period of thirty (30) days after written notice thereof has
been given to the Borrowers by the Administrative Agent.
(f) Intentionally Omitted.
(g) Debt Cross-Default. Any Borrower or any Subsidiary
(other than a Monetization Subsidiary) shall (i) default in the payment of any
Debt (other than the Notes or any Reimbursement Obligation) the aggregate
outstanding amount of which Debt is in excess of
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$10,000,000 beyond the period of grace, if any, provided in the instrument or
agreement under which such Debt was created, or (ii) default in the observance
or performance of any other agreement or condition relating to any Debt (other
than the Notes or any Reimbursement Obligation) the aggregate outstanding amount
of which Debt is in excess of $10,000,000 or contained in any instrument or
agreement evidencing, securing or relating thereto or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Debt (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required any such Debt to become due prior to its stated maturity
(any applicable grace period having expired).
(h) Intentionally Omitted.
(i) Change in Control. (i) Any person or group of
persons (within the meaning of Section 13(d) of the 1934 Act), shall obtain
ownership or control in one or more series of transactions of more than twenty
percent (20%) of the common stock or twenty percent (20%) of the voting power
of JLG entitled to vote in the election of members of the board of directors
of JLG, or (ii) there shall have occurred under any indenture or other
instrument evidencing any Debt in excess of $5,000,000 any change in control
(as defined in such indenture or other evidence of Debt) obligating a Borrower
to repurchase, redeem or repay all or any part of the Debt or capital stock
provided for therein (any such event, a "Change in Control").
(j) Voluntary Bankruptcy Proceeding. Any Borrower or
any Subsidiary thereof (other than a Monetization Subsidiary) shall (i)
commence a voluntary case under the federal bankruptcy laws (as now or
hereafter in effect), (ii) file a petition seeking to take advantage of any
other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts, (iii)
consent to or fail to contest in a timely and appropriate manner any petition
filed against it in an involuntary case under such bankruptcy laws or other
laws, (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its property, domestic or foreign, (v) admit in writing its inability to
pay its debts as they become due, (vi) make a general assignment for the
benefit of creditors, or (vii) take any corporate action, including without
limitation by the adoption by its board of directors or other governing body
of any resolution, for the purpose of authorizing any of the foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other
proceeding shall be commenced against any Borrower or any Subsidiary thereof
(other than a Monetization Subsidiary) in any court of competent jurisdiction
seeking (i) relief under the federal bankruptcy laws (as now or hereafter in
effect) or under any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or adjustment of debts, or (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like for such
Borrower or any Subsidiary thereof (other than a Monetization Subsidiary) or
for all or any substantial part of their respective assets, domestic or
foreign, and such case or proceeding shall continue without dismissal or stay
for a period of sixty (60) consecutive days, or an order granting the relief
requested in such case or proceeding (including, but not limited to, an order
for relief under such federal bankruptcy laws) shall be entered.
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(l) Failure of Agreements. Any material provision of
this Agreement or of any other Loan Document shall for any reason cease to be
valid and binding on any Borrower or Subsidiary party thereto or any such
Person shall so state in writing, or this Agreement or any other Loan Document
shall for any reason cease to create a valid and perfected first priority lien
on or security interest in any of the Collateral purported to be covered
thereby, in each case, other than in accordance with the express terms hereof
or thereof.
(m) Termination Event. The occurrence of any of the
following events: (i) to the extent it would reasonably be expected to have a
Material Adverse Effect, the Borrower or any ERISA Affiliate fails to make
full payment when due of all amounts which, under the provisions of any
Pension Plan or Section 412 of the Code, such Borrower or ERISA Affiliate is
required to pay as contributions thereto, and such failure to make full
payment when due is not cured within fifteen (15) days after the occurrence of
the event or condition giving rise to the required notice to the PBGC, (ii) an
accumulated funding deficiency, as defined in Section 412 of the Code, in
excess of $5,000,000 occurs or exists, whether or not waived, with respect to
any Pension Plan, or (iii) a Termination Event which would reasonably be
expected to have a Material Adverse Effect.
(n) Judgment. A judgment or order for the payment of
money which causes the aggregate amount of all such judgments to exceed
$5,000,000 in any Fiscal Year shall be entered against any Borrower or any
Subsidiary (other than a Monetization Subsidiary) by any court and such
judgment or order shall continue without discharge or stay for a period of
thirty (30) days.
(o) Custody and Control. If custody or control of any
substantial part of the property of any Borrower or any Subsidiary (other than
a Monetization Subsidiary) shall be assumed by any governmental agency or any
court of competent jurisdiction at the instance of any governmental agency; if
any material license or franchise shall be suspended, revoked or otherwise
terminated; if any Borrower or any Subsidiary is required by any franchising
authority or by court order or administrative order to halt construction or
operations under any license or franchise and such action shall continue
uncorrected for ninety (90) days after such Borrower or Subsidiary has
received notice thereof; or if any governmental regulatory authority or
judicial body shall make any other final non-appealable determination; and the
effect of any of the foregoing, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
(p) Environmental Laws. If any event or condition shall
occur or exist on any property owned, leased or operated by any Borrower or
Subsidiary (other than a Monetization Subsidiary) in violation of any
Environmental Law and as a result of such event or condition, Borrowers and
their Subsidiaries (other than a Monetization Subsidiary) have incurred or are
reasonably likely to incur a liability in excess of $5,000,000 during any
consecutive twelve (12) month period.
Section 11.2. Remedies. Upon the occurrence of an Event of Default,
with the consent of the Required Lenders, the Administrative Agent may, or
upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrowers:
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(a) Acceleration; Termination of Facilities. Declare
the principal of and interest on the Loans, the Notes and the Reimbursement
Obligations at the time outstanding, and all other amounts owed to the Lenders
and to the Administrative Agent under this Agreement or any of the other Loan
Documents (including, without limitation, all L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) and all other Obligations (other
than obligations owing under any Hedging Agreement), to be forthwith due and
payable, whereupon the same shall immediately become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived, anything in this Agreement or the other Loan Documents to
the contrary notwithstanding, terminate the Credit Facility and any right of
the Borrowers to request borrowings or Letters of Credit thereunder and
immediately exercise its rights to enforce or realize on any collateral
security granted therefore in any manner or order it deems expedient without
regard to any equitable principles of marshalling or otherwise; provided, that
upon the occurrence of an Event of Default specified in Section 11.1(j) or
(k), the Credit Facility shall be automatically terminated and all Obligations
(other than obligations owing under any Hedging Agreement) shall automatically
become due and payable.
(b) Letters of Credit. With respect to all Letters of
Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to the preceding paragraph, require the
Borrowers at such time to deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon,
if any, shall be applied to repay the other Obligations. After all such
Letters of Credit shall have expired or been fully drawn upon, the
Reimbursement Obligation shall have been satisfied and all other Obligations
shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Borrowers.
(c) Rights of Collection. Exercise on behalf of the
Lenders all of its other rights and remedies under this Agreement, the
Collateral Security Documents, the other Loan Documents and Applicable Law, in
order to satisfy all of the Borrowers' Obligations.
Section 11.3. Rights and Remedies Cumulative; Non-Waiver, etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy
given hereunder or under the Loan Documents or that may now or hereafter exist
in law or in equity or by suit or otherwise. No delay or failure to take
action on the part of the Administrative Agent or any Lender in exercising any
right, power or privilege shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or privilege preclude
other or further exercise thereof or the exercise of any other right, power or
privilege or shall be construed to be a waiver of any Event of Default. No
course of dealing between the Borrowers, the Administrative Agent and the
Lenders or their respective agents or employees shall be effective to change,
modify or discharge any provision of this Agreement or any of the other Loan
Documents or to constitute a waiver of any Event of Default.
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ARTICLE XII
THE ADMINISTRATIVE AGENT
Section 12.1. Appointment. Each of the Lenders hereby irrevocably
designates and appoints Wachovia as Administrative Agent of such Lender under
this Agreement and the other Loan Documents for the term hereof, and each such
Lender irrevocably authorizes Wachovia, as Administrative Agent for such
Lender, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the
terms of this Agreement and such other Loan Documents, together with such
other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement or such other Loan
Documents, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein and therein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or the other Loan Documents or otherwise exist against the
Administrative Agent. Any reference to the Administrative Agent in this
Article XII shall be deemed to refer to the Administrative Agent solely in its
capacity as Administrative Agent and not in its capacity as a Lender.
Section 12.2. Delegation of Duties. The Administrative Agent may
execute any of its respective duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact (other than the Administrative Agent's
employees) selected by the Administrative Agent with reasonable care.
Section 12.3. Exculpatory Provisions. Neither the Administrative
Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates shall be (a) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or the other Loan Documents (except for actions
occasioned solely by its or such Person's own gross negligence or willful
misconduct), or (b) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrowers or
any of their Subsidiaries or any officer thereof contained in this Agreement
or the other Loan Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Agreement or the other Loan Documents
or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or the other Loan Documents or for any failure
of the Borrowers or any of their Subsidiaries to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Borrowers or
any of their Subsidiaries.
Section 12.4. Reliance by the Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be fully protected
in relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be
genuine and
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correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrowers), independent accountants and other
experts selected by the Administrative Agent. The Administrative Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
unless such Note shall have been transferred in accordance with Section 13.10
hereof. The Administrative Agent shall be fully justified in failing or
refusing to take any action under this Agreement and the other Loan Documents
unless it shall first receive such advice or concurrence of the Required
Lenders (or, when expressly required hereby or by the relevant other Loan
Document, all the Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action except for its own gross negligence or willful
misconduct. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the Notes in
accordance with a request of the Required Lenders (or, when expressly required
hereby, all the Lenders), and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Notes.
Section 12.5. Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless it has received notice from a Lender or the
Borrowers referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." In the event
that the Administrative Agent receives such a notice, it shall promptly give
notice thereof to the Lenders. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders, except to the
extent that other provisions of this Agreement expressly require that any such
action be taken or not be taken only with the consent and authorization or the
request of the Lenders or Required Lenders, as applicable.
Section 12.6. Non-Reliance on the Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent hereinafter
taken, including any review of the affairs of the Borrowers or any of their
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and their Subsidiaries and
made its own decision to make its Loans and issue or participate in Letters of
Credit hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make
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such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of
the Borrowers and their Subsidiaries. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder or by the other Loan Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
operations, property, financial and other condition or creditworthiness of the
Borrowers or any of their Subsidiaries which may come into the possession of
the Administrative Agent or any of its respective officers, directors,
employees, agents, attorneys-in-fact, Subsidiaries or Affiliates.
Section 12.7. Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not reimbursed
by the Borrowers and without limiting the obligation of the Borrowers to do
so), ratably according to the respective amounts of their Commitment
Percentages, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Notes or any
Reimbursement Obligation) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement
or the other Loan Documents, or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection
with any of the foregoing; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Administrative Agent's bad faith, gross negligence
or willful misconduct. The agreements in this Section 12.7 shall survive the
payment of the Notes, any Reimbursement Obligation and all other amounts
payable hereunder and the termination of this Agreement.
Section 12.8. The Administrative Agent in Its Individual Capacity.
The Administrative Agent and its respective Subsidiaries and Affiliates may
make loans to, accept deposits from and generally engage in any kind of
business with the Borrowers as though the Administrative Agent were not an
Administrative Agent hereunder. With respect to any Loans made or renewed by
it and any Note issued to it and with respect to any Letter of Credit issued
by it or participated in by it, the Administrative Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not an Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
Section 12.9. Resignation of the Administrative Agent; Successor
Administrative Agent. Subject to the appointment and acceptance of a successor
as provided below, the Administrative Agent may resign at any time by giving
at least twenty Business Days' notice thereof to the Lenders and the
Borrowers. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Administrative Agent, which successor shall be a
financial institution chartered under the laws of the United States of America
or a state or commonwealth thereof and have minimum capital and surplus of at
least $500,000,000. If no successor Administrative Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the Administrative Agent's giving of notice of
resignation, then the Administrative Agent may, on behalf of the Lenders,
appoint a
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successor Administrative Agent, which successor shall be a financial
institution chartered under the laws of the United States of America or a
state or commonwealth thereof and have minimum capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 12.9 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as Administrative Agent.
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Notices.
(a) Method of Communication. All notices and
communications hereunder shall be in writing, or by telephone subsequently
confirmed in writing. Any notice shall be effective if delivered by hand
delivery or sent via telecopy, recognized overnight courier service or
certified mail, return receipt requested, and shall be presumed to be received
by a party hereto (i) on the date of delivery if delivered by hand or sent by
telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed
to be the controlling and proper notice in the event of failure to receive a
confirming written notice.
(b) Addresses for Notices. Notices to any party shall
be sent to it at the following addresses, or any other address as to which all
the other parties are notified in writing.
If to the Borrowers:
JLG Industries, Inc.
1 JLG Drive
McConnellsburg, PA 17233-9533
Attention: James H. Woodward, Jr.
Executive Vice President and
Chief Financial Officer
Telephone No.: (717) 485-5161
Telecopy No.: (717) 485-6462
With copies to:
Covington and Burling
1201 Pennsylvania Avenue, N.W.
Washington, DC 20044-7566
Attention: W. Andrew Jack, Esquire
Telephone No.: (202) 662-5232
Telecopy No.: (202) 662-6291
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and
Covington and Burling
1330 Avenue of the Americas
New York, NY 10019
Attention: David A. Rosinus, Esquire
Telephone No.: (212) 841-1197
Telecopy No.: (212) 841-1144
If to Wachovia as
Administrative Agent: Wachovia Bank, National Association
301 South College Street, TW-10
Charlotte, NC 28288-0608
Attention: Syndication Agency Services
Telephone No.: (704) 383-7698
Telecopy No.: (704) 383-0288
With copies to: Wachovia Securities, Inc.
301 South College Street (DC-5)
Charlotte, NC 28288-0760
Attention: George L. Woolsey
Telephone No.: (704) 374-7907
Telecopy No.: (704) 715-1117
and
Pepper Hamilton LLP
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103-2799
Attention: Lisa D. Kabnick, Esquire
Telephone No.: (215) 981-4814
Telecopy No.: (215) 981-4750
If to any Lender: To the Address set forth on Schedule 2
hereto.
(c) Administrative Agent's Office. The Administrative
Agent hereby designates its office located at the address set forth above, or
any subsequent office which shall have been specified for such purpose by
written notice to the Borrowers and Lenders, as the Administrative Agent's
Office referred to herein, to which payments due are to be made and at which
Loans will be disbursed and Letters of Credit issued.
Section 13.2. Expenses; Indemnity. The Borrowers will (a) pay all
reasonable out-of-pocket expenses of the Administrative Agent in connection
with (i) the preparation, execution and delivery of this Agreement and each
other Loan Document, whenever the same shall be executed and delivered,
including without limitation all reasonable out-of-pocket syndication and due
diligence expenses and reasonable fees and disbursements of counsel for the
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Administrative Agent and (ii) the preparation, execution and delivery of any
waiver, amendment or consent by the Administrative Agent or the Lenders
relating to this Agreement or any other Loan Document, including without
limitation reasonable fees and disbursements of counsel for the Administrative
Agent, (b) pay all reasonable out-of-pocket expenses of the Administrative
Agent and each Lender actually incurred in connection with the administration
and enforcement of any rights and remedies of the Administrative Agent and
Lenders under the Credit Facility, including consulting with appraisers,
accountants, engineers, attorneys and other Persons concerning the nature,
scope or value of any right or remedy of the Administrative Agent or any
Lender hereunder or under any other Loan Document or any factual matters in
connection therewith, which expenses shall include without limitation the
reasonable fees and disbursements of such Persons, and (c) defend, indemnify
and hold harmless the Administrative Agent and the Lenders, and their
respective parents, Subsidiaries, Affiliates, employees, agents, officers and
directors, from and against any losses, penalties, fines, liabilities,
settlements, damages, costs and expenses, suffered by any such Person in
connection with any claim, investigation, litigation or other proceeding
(whether or not the Administrative Agent or any Lender is a party thereto) and
the prosecution and defense thereof, arising out of or in any way connected
with the Agreement, any other Loan Document or the Loans or the transactions
contemplated hereby, including without limitation reasonable attorney's and
consultant's fees, except to the extent that any of the foregoing directly
result from the gross negligence or willful misconduct of the party seeking
indemnification therefor.
Section 13.3. Set-off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the
continuance thereof, the Lenders and any assignee or participant of a Lender
in accordance with Section 13.10 are hereby authorized by the Borrowers at any
time or from time to time, without notice to the Borrowers or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, time or
demand, including, but not limited to, indebtedness evidenced by certificates
of deposit, whether matured or unmatured) and any other indebtedness at any
time held or owing by the Lenders, or any such assignee or participant to or
for the credit or the account of any Borrower against and on account of the
Obligations irrespective of whether or not (a) the Lenders shall have made any
demand under this Agreement or any of the other Loan Documents or (b) the
Administrative Agent shall have declared any or all of the Obligations to be
due and payable as permitted by Section 11.2 and although such Obligations
shall be contingent or unmatured.
Section 13.4. Governing Law. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be
governed by, construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania, without reference to the conflicts or choice of
law principles thereof.
Section 13.5. Consent to Jurisdiction. The Borrowers hereby
irrevocably consent to the personal jurisdiction of the state and federal
courts located in Philadelphia County, Pennsylvania, in any action, claim or
other proceeding arising out of any dispute in connection with this Agreement,
the Notes and the other Loan Documents, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations. The Borrowers
hereby irrevocably consent to the service of a summons and complaint and other
process in any
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action, claim or proceeding brought by the Administrative Agent or any Lender
in connection with this Agreement, the Notes or the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such
rights and obligations, on behalf of itself or its property, in the manner
specified in Section 13.1. Nothing in this Section 13.5 shall affect the right
of the Administrative Agent or any Lender to serve legal process in any other
manner permitted by Applicable Law or affect the right of the Administrative
Agent or any Lender to bring any action or proceeding against the Borrowers or
their properties in the courts of any other jurisdictions.
Section 13.6. Waiver of Jury Trial.
(a) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE NOTES OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
ANY LENDER OR ADMINISTRATIVE AGENT. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR EACH LENDER'S ENTERING INTO THIS AGREEMENT.
(b) Preservation of Certain Remedies. The parties
hereto and the other Loan Documents preserve, without diminution, certain
remedies that such Persons may employ or exercise freely, either alone, in
conjunction with or during a dispute. Each such Person shall have and hereby
reserves the right to proceed in any court of proper jurisdiction or by self
help to exercise or prosecute the following remedies: (i) all rights to
foreclose against any real or personal property or other security by
exercising a power of sale granted in the Loan Documents or under applicable
law or by judicial foreclosure and sale, (ii) all rights of self help
including peaceful occupation of property and collection of rents, set off,
and peaceful possession of property, (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and in filing an involuntary bankruptcy proceeding,
and (iv) when applicable, a judgment by confession of judgment.
Section 13.7. Reversal of Payments. To the extent a Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and
effect as if such payment or proceeds had not been received by the
Administrative Agent.
Section 13.8. Injunctive Relief; Punitive Damages.
(a) Each Borrower recognizes that, in the event such
Borrower fails to perform, observe or discharge any of its obligations or
liabilities under this Agreement, any remedy of law may prove to be inadequate
relief to the Lenders. Therefore, each Borrower
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agrees that the Lenders, at the Lender's option, shall be entitled to
temporary and permanent injunctive relief in any such case without the
necessity of proving actual damages.
(b) The Administrative Agent, Lenders and Borrowers (on
behalf of themselves and their Subsidiaries) hereby agree that no such Person
shall have a remedy of punitive or exemplary damages against any other party
to a Loan Document and each such Person hereby waives any right or claim to
punitive or exemplary damages that they may now have or may arise in the
future in connection with any dispute, whether such dispute is resolved
through arbitration or judicially.
Section 13.9. Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by
any Borrower or any Subsidiary thereof to determine compliance with any
covenant contained herein, shall, except as otherwise expressly contemplated
hereby or unless there is an express written direction by the Administrative
Agent to the contrary agreed to by a Borrower, be performed in accordance with
GAAP.
Section 13.10. Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be
binding upon and inure to the benefit of the Borrowers, the Administrative
Agent and the Lenders, all future holders of the Notes, and their respective
successors and assigns, except that the Borrowers shall not assign or transfer
any of their rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Assignment by Lenders. Each Lender may, with the
consent of the Borrowers (so long as no Default or Event of Default has
occurred and is continuing) and the consent of the Administrative Agent, which
consents shall not be unreasonably withheld, assign to one or more Eligible
Assignees all or a portion of its interests, rights and obligations under this
Agreement (including, without limitation, all or a portion of the Extensions
of Credit at the time owing to it and the Notes held by it); provided that:
(i) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Lender's rights
and obligations under this Agreement;
(ii) if less than all of the assigning Lender's
Commitment is to be assigned, the Commitment so assigned shall not be less
than $5,000,000.
(iii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance in the form of Exhibit
G attached hereto (an Assignment and Acceptance ), together with any Note or
Notes subject to such assignment;
(iv) such assignment shall not, without the
consent of the Borrowers, require the Borrowers to file a registration
statement with the Securities and Exchange Commission or apply to or qualify
the Loans or the Notes under the blue sky laws of any state; and
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(v) the assigning Lender shall pay to the
Administrative Agent an assignment fee of $3,000 upon the execution by such
Lender of the Assignment and Acceptance; provided that no such fee shall be
payable (i) upon any assignment by a Lender to an Affiliate thereof and (ii)
with respect to any assignment made prior to June 24, 1999.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective
date shall be at least five (5) Business Days after the execution thereof, (A)
the assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a Lender
hereby and (B) the Lender thereunder shall, to the extent provided in such
assignment, be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and
delivering an Assignment and Acceptance, the assigning Lender thereunder and
the assignee thereunder confirm to and agree with each other and the other
parties hereto as set forth in such Assignment and Acceptance.
(d) Register. The Administrative Agent shall maintain a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders and the amount of the
Extensions of Credit with respect to each Lender from time to time (the
"Register" ). The entries in the Register shall be conclusive, in the absence
of manifest error, and the Borrowers, the Administrative Agent and the Lenders
may treat each person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrowers or Lenders at any reasonable time and from
time to time upon reasonable prior notice.
(e) Issuance of New Notes. Upon its receipt of an
Assignment and Acceptance executed by an assigning Lender and an Eligible
Assignee together with any Note or Notes subject to such assignment and the
written consent to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is substantially in the form
of Exhibit G:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein
in the Register;
(iii) give prompt notice thereof to the Lenders
and the Borrowers; and
(iv) promptly deliver a copy of such Assignment
and Acceptance to the Borrowers.
Within five (5) Business Days after receipt of notice, the Borrowers shall
execute and deliver to the Administrative Agent, in exchange for the
surrendered Note or Notes, a new Note or Notes to the order of such Eligible
Assignee in amounts equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and a new Note or Notes to the order of the
assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such
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surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of the assigned
Notes delivered to the assigning Lender. Each surrendered Note or Notes shall be
canceled and returned to the Borrowers.
Section 13.11. Participations. Each Lender may sell participations to
one or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Extensions of Credit and the Notes held by it) (it being
understood that no participation by a Lender shall increase any amount that
any Borrower would be obligated to pay under this Agreement or any of the
Notes beyond the amount such Borrower would have been obligated to pay under
this Agreement or any of the Notes if such Lender had not sold such
participation); provided that:
(a) each such participation shall be in an amount not
less than $5,000,000;
(b) such Lender's obligations under this Agreement
(including, without limitation, its Commitment) shall remain unchanged;
(c) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations;
(d) such Lender shall remain the holder of the Notes
held by it for all purposes of this Agreement;
(e) the Borrowers, the Administrative Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement;
(f) such Lender shall not permit such participant the
right to approve any waivers, amendments or other modifications to this
Agreement or any other Loan Document other than waivers, amendments or
modifications which would reduce the principal of or the interest rate on any
Loan or Reimbursement Obligation, extend the term or increase the amount of
the Commitment, reduce the amount of any fees to which such participant is
entitled, extend any scheduled payment date for principal of any Loan; and
(g) any such disposition shall not, without the consent
of the Borrowers, require the Borrowers to file a registration statement with
the Securities and Exchange Commission to apply to qualify the Loans or the
Notes under the blue sky law of any state.
Section 13.12. Disclosure of Information; Confidentiality. The
Administrative Agent and the Lenders shall hold all non-public information
with respect to the Borrowers obtained pursuant to the Loan Documents in
accordance with their customary procedures for handling confidential
information; provided, that the Administrative Agent may disclose information
relating to this Agreement to Gold Sheets and other similar bank trade
publications, such information to consist of deal terms and other information
customarily found in such publications and provided further, that the
Administrative Agent and Lenders may disclose any such information to the
extent such disclosure is required by law. Any Lender may, in
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connection with any assignment, proposed assignment, participation or proposed
participation pursuant to this Section 13.10, disclose to the assignee,
participant, proposed assignee or proposed participant, any information
relating to the Borrowers furnished to such Lender by or on behalf of the
Borrowers; provided, that prior to any such disclosure, each such assignee,
proposed assignee, participant or proposed participant shall agree with the
Borrowers or such Lender to preserve the confidentiality of any confidential
information relating to the Borrowers received from such Lender.
Section 13.13. Certain Pledges or Assignments; Amendments. Nothing
herein shall prohibit any Lender from pledging or assigning any Note to any
Federal Reserve Bank in accordance with Applicable Law. Except as set forth
below, any term, covenant, agreement or condition of this Agreement or any of
the other Loan Documents (other than any Hedging Agreement, the terms and
conditions of which may be amended, modified or waived by the parties thereto
in accordance with the provisions thereof) may be amended or waived by the
Lenders, and any consent given by the Lenders, if, but only if, such
amendment, waiver or consent is in writing signed by the Required Lenders (or
by the Administrative Agent with the consent of the Required Lenders) and
delivered to the Administrative Agent and, in the case of an amendment, signed
by the Borrowers; provided, that no amendment, waiver or consent shall (a)
increase the amount or extend the time of the obligation of the Lenders to
make Loans or issue or participate in Letters of Credit (including without
limitation pursuant to Section 2.7), (b) extend the originally scheduled time
or times of payment of the principal of any Loan or Reimbursement Obligation
or the time or times of payment of interest on any Loan or Reimbursement
Obligation, (c) reduce the rate of interest or fees payable on any Loan or
Reimbursement Obligation, (d) reduce the principal amount of any Loan or
Reimbursement Obligation, (e) permit any subordination of the principal or
interest on any Loan or Reimbursement Obligation, (f) permit any assignment
(other than as specifically permitted or contemplated in this Agreement) of
any Borrower's rights and obligations hereunder or (g) amend the provisions of
this Section 13.13 or the definition of Required Lenders, without the prior
written consent of each Lender. In addition, no amendment, waiver or consent
to the provisions of (a) Article XII shall be made without the written consent
of the Administrative Agent and (b) Article III without the written consent of
the Issuing Lender.
Section 13.14. Costs and Expenses of Borrowers. The Borrowers'
obligations under this Agreement and each of the Loan Documents shall be
performed by the Borrowers at their sole cost and expense.
Section 13.15. Authorization Coupled with an Interest. All
authorizations granted to the Lenders, the Administrative Agent and any
Persons designated by the Administrative Agent or any Lender pursuant to any
provisions of this Agreement or any of the other Loan Documents shall be
deemed coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied or the Credit Facility has not been
terminated.
Section 13.16. Full Force and Effect. Notwithstanding any
termination of this Agreement, the indemnities to which the Administrative
Agent and the Lenders are entitled under the provisions of this Article XIII
and any other provision of this Agreement and the Loan Documents shall
continue in full force and effect and shall protect the Administrative Agent
and
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the Lenders with respect to acts or omissions prior to such termination
against claims made after such termination as well as before.
Section 13.17. Headings. Titles and captions of Articles, Sections
and subsections in this Agreement are for convenience only, and neither limit
nor amplify the provisions of this Agreement.
Section 13.18. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remainder of such
provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 13.19. Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and shall be binding upon all parties, their successors and assigns, and all
of which taken together shall constitute one and the same agreement.
Section 13.20. Agreement in Effect. This Agreement shall remain in
effect from the Closing Date through and including the date upon which all
Obligations shall have been indefeasibly and irrevocably paid and satisfied in
full. No termination of this Agreement shall affect the rights and obligations
of the parties hereto arising prior to such termination.
Section 13.21. Credit Agreement Controls. In the event there is a
conflict or inconsistency between this Agreement and any other Loan Document,
the terms of this Agreement shall control; provided, that any provision of the
Collateral Security Documents which imposes additional burdens on any Borrower
or any Subsidiary or further restricts the rights of any Borrower or any
Subsidiary or gives the Administrative Agent or Lenders additional rights
shall not be deemed to be in conflict or inconsistent with this Agreement and
shall be given full force and effect.
Section 13.22. Covenants Independent. The Borrowers expressly
acknowledge and agree that each covenant contained in Articles VIII, IX, or X
hereof shall be given independent effect. Accordingly, the Borrowers shall not
engage in any transaction or other act otherwise permitted under any covenant
contained in Articles VIII, IX, or X if, before or after giving effect to such
transaction or act, the Borrowers shall or would be in breach of any other
covenant contained in Articles VIII, IX, or X.
Section 13.23. PNC Three Party Agreement. As of October 4, 2001, or
the date any Lender shall become a party to this Agreement pursuant to Section
13.10, as applicable, each Lender shall be bound by the following Sections of
the Three Party Agreement ("PNC Three Party Agreement") dated as of October 4,
2001, by and among Market Street Funding Corporation, PNC Bank, National
Association, and the Administrative Agent, until their termination, by their
terms or otherwise, without any further action by any party: (i) Sections 5(b)
and 6(b) and (ii) Section 6(a), solely with respect to transfers of
"Securitization Assets" (as defined in the Three Party
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Agreement) prior to March 18, 2002 and the validity, enforceability, priority
or perfection of interests in the Receivables Subsidiary (as defined in the
Three Party Agreement) or any assignee of the Receivables Subsidiary in any of
the Securitization Assets created prior to March 18, 2002. The signature of
any Lender that becomes a party to this Agreement pursuant to Section 13.10 on
the applicable Assignment and Acceptance shall constitute agreement to be
bound by the above-referenced Sections of the PNC Three Party Agreement.
Section 13.24. Termination. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all
Obligations shall have been indefeasibly and irrevocably paid and satisfied in
full. The Administrative Agent is hereby permitted to release all Liens on the
Collateral in favor of the Administrative Agent, for the ratable benefit of
itself and the Lenders and Allfirst Bank, upon repayment in cash of the
outstanding principal of and all accrued interest on the Loans, payment of all
outstanding fees and expenses hereunder and the irrevocable termination of the
Commitments and in accordance with the terms of the Security Agreement or any
other Loan Document. No termination of this Agreement shall affect the rights
and obligations of the parties hereto arising prior to such termination.
Section 13.25. Confirmation of Collateral Security Documents.Those
Lenders who have executed this Amended and Restated Credit Agreement hereby
consent and agree to the amendments to the Security Agreement and Pledge
Agreement dated of even date herewith. Borrowers hereby (a) affirm all of the
provisions of the Collateral Security Documents, as amended through the
Effective Date, to which they are a party and the collateral security granted
thereunder and (b) agree that the terms and conditions of the Collateral
Security Documents, as amended through the Effective Date, shall continue in
full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed under seal by their duly authorized officers, all as
of the day and year first written above.
Attest: BORROWERS:
JLG INDUSTRIES, INC., as a Borrower
By: /s/ Thomas D. Singer By: /s/ James H. Woodward, Jr.
----------------------------------------- ----------------------------------
Name: Thomas D. Singer Name: James H. Woodward, Jr.
Title: Secretary Title: Executive Vice President and Chief Financial Officer
Attest: FULTON INTERNATIONAL, INC.,
as a Borrower
By: /s/ Thomas D. Singer By: /s/ James H. Woodward, Jr.
----------------------------------------- ----------------------------------
Name: Thomas D. Singer Name: James H. Woodward, Jr.
Title: Secretary Title: President
Attest: JLG EQUIPMENT SERVICES, INC.,
as a Borrower
By: /s/ Thomas D. Singer By: /s/ James H. Woodward, Jr.
----------------------------------------- ----------------------------------
Name: Thomas D. Singer Name: James H. Woodward, Jr.
Title: Assistant Secretary Title: Secretary and Treasurer
Attest: JLG MANUFACTURING, LLC
By: JLG INDUSTRIES, INC., Authorized
Member
By: /s/ Thomas D. Singer By: /s/ James H. Woodward, Jr.
----------------------------------------- ----------------------------------
Name: Thomas D. Singer Name: James H. Woodward, Jr.
Title: Secretary Title: Executive Vice President and Chief Financial Officer
Attest: ACCESS FINANCIAL SOLUTIONS, INC.
By: /s/ Thomas D. Singer By: /s/ James H. Woodward, Jr.
----------------------------------------- ----------------------------------
Name: Thomas D. Singer Name: James H. Woodward, Jr.
Title: Secretary Title: President
[EXECUTIONS CONTINUED]
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Attest: GRADALL INDUSTRIES, INC.,
as a Borrower
By: /s/ Thomas D. Singer By: /s/ James H. Woodward, Jr.
- ----------------------------------- -------------------------------------------
Name: Thomas D. Singer Name: James H. Woodward, Jr.
Title: Assistant Secretary Title: Vice President
Attest: THE GRADALL COMPANY,
as a Borrower
By: /s/ Thomas D. Singer By: /s/ James H. Woodward, Jr.
----------------------------------------- ----------------------------------
Name: Thomas D. Singer Name: James H. Woodward, Jr.
Title: Assistant Secretary Title: Vice President
Attest: THE GRADALL ORRVILLE COMPANY,
as a Borrower
By: /s/ Thomas D. Singer By: /s/ James H. Woodward, Jr.
----------------------------------------- ----------------------------------
Name: Thomas D. Singer Name: James H. Woodward, Jr.
Title: Assistant Secretary Title: Vice President
LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION
as Administrative Agent, Documentation Agent and Lender
By: /s/ George L. Woolsey
----------------------------------
Name: George L. Woolsey
Title: Vice President
BANK ONE, MICHIGAN,
individually as a Lender and in its capacity as Syndication Agent
By: /s/ Glenn A. Currin
----------------------------------
Name: Glenn A. Currin
Title: Director
[EXECUTIONS CONTINUED]
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JP MORGAN CHASE BANK,
successor by merger to
THE CHASE MANHATTAN BANK,
N.A.,
as a Lender
By: /s/ Christine M. McLeod
----------------------------------
Name: Christine M. McLeod
Title: Vice President
BANCO ESPIRITO SANTO, S.A., NASSAU BRANCH, as a Lender
By: /s/ Terry R. Hull
----------------------------------
Name: Terry R. Hull
Title: Senior Vice President
By: /s/ Andrew M. Orsen
----------------------------------
Name: Andrew M. Orsen
Title: Vice President
ALLFIRST BANK, f/k/a The First National Bank of
Maryland, as a Lender
By: /s/ Kellie M. Matthews
----------------------------------
Name: Kellie M. Matthews
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Christopher Taylor
----------------------------------
Name: Christopher Taylor
Title: Vice President
[EXECUTIONS CONTINUED]
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HARRIS TRUST AND SAVINGS BANK,
as a Lender
By: /s/ Helen A. Dimitriou
----------------------------------
Name: Helen A. Dimitriou
Title: Vice President
NATIONAL CITY BANK OF PENNSYLVANIA, as a Lender
By: /s/ Debra W. Riefner
----------------------------------
Name: Debra W. Riefner
Title: Vice President
COMERICA BANK, as a Lender
By: /s/ Jeffrey M. Lafferty
----------------------------------
Name: Jeffrey M. Lafferty
Title: Account Officer
CITIZENS BANK OF PENNSYLVANIA, as a Lender
By: /s/ Joseph N. Butto
----------------------------------
Name: Joseph N. Butto
Title: Vice President
[EXECUTIONS CONTINUED]
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SUNTRUST BANK, ATLANTA, as a Lender
By: /s/ Stephen Derby
----------------------------------
Name: Stephen Derby
Title: Director
BANK HAPOALIM B.M., as a Lender
By: /s/ James P. Sarless /s/ Laura Anne Raffa
------------------------------------------------------------
Name: James P. Sarless Laura Anne Raffa
Title: Vice President Senior Vice President and
Corporate Manager
FLEET NATIONAL BANK, as a Lender
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK, as a Lender
By: /s/ Walter C. Parelli
----------------------------------
Name: Walter C. Parelli
Title: Vice President
[EXECUTIONS CONTINUED]
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BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as a Lender
By: /s/ Spencer Hughes
----------------------------------
Name: Spencer Hughes
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH, as a Lender
By: /s/ Attila Koc
----------------------------------
Name: Attila Koc
Title: Senior Vice President
ERSTE BANK, as a Lender
By: /s/ Robert J. Wagman
----------------------------------
Name: Robert J. Wagman
Title: Vice President
By: /s/ John S. Runnion
----------------------------------
Name: John S. Runnion
Title: Managing Director
STANDARD FEDERAL BANK, N.A.,
as a Lender
By: /s/ Kathleen Hallberg
----------------------------------
Name: Kathleen Hallberg
Title: Assistant Vice President
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EXHIBITS
Exhibit A - Form of Notice of Borrowing
Exhibit B - Form of Notice of Account Designation
Exhibit C - Form of Notice of Prepayment
Exhibit D - Form of Notice of Conversion/Continuation
Exhibit E - Form of Officer's Certificate
Exhibit F - Form of Joinder Agreement
Exhibit G - Form of Assignment and Acceptance
SCHEDULES
Schedule 1 - Borrowers
Schedule 2 - Lenders and Commitments
Schedule 3 - Calculation of MLA Costs
Schedule 4 - Orrville Restructuring Charge
Schedule 5 Existing Letters of Credit
Schedule 6.1(a) - Jurisdictions of Organization and Qualification
Schedule 6.1(b) - Subsidiaries and Capitalization
Schedule 6.1(i) - ERISA Plans
Schedule 6.1(i)(ii) - Multiemployer Plans
Schedule 6.1(i)(vii) - Benefits under Pension Plans
Schedule 6.1(i)(ix) - Unfunded Liabilities
Schedule 6.1(l) - Material Contracts
Schedule 6.1(m) - Labor and Collective Bargaining Agreements
Schedule 6.1(s) - Debt and Guaranty Obligations
Schedule 6.1(t) - Litigation
Schedule 6.1(aa) - Designated Senior Indebtedness
Schedule 10.1(d) - Hedging Agreements
Schedule 10.3 - Existing Liens
Schedule 10.4 - Existing Loans, Advances and Investments
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SCHEDULE 1
(Borrowers)
JLG Industries, Inc.
JLG Equipment Services, Inc.
JLG Manufacturing, LLC
Fulton International, Inc.
Gradall Industries, Inc.
The Gradall Company
The Gradall Orrville Company
Access Financial Solutions, Inc.
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SCHEDULE 2
(Lenders and Commitments)
LENDER COMMITMENT COMMITMENT
PERCENTAGE
Wachovia Bank, National Association 13.0% 32,500,000
301 South College Street (TW-10)
Charlotte, NC 28288-0760 Swingline Commitment
Attention: Syndication Agency Services $20,000,000
Telephone No.: (704) 383-7698
Telecopy No.: (704) 383-0288
Bank One, Michigan 7.1% 17,750,000
611 Woodward Avenue, 2nd Floor
M11-8074
Detroit, MI 48226
Attention: Pat Dumphy
Telephone No.: (313) 225-1940
Telecopy No.: (313) 225-1212
Banco Espirito Santo e Comercial 2.0% 5,000,000
29th Floor
320 Park Avenue
New York, NY 10022
Attention: Terry Hull
Telephone No.: (212) 702-3430
Telecopy No.: (212) 750-3999
Allfirst Bank 3.2% 8,000,000
2055 South Queen Street
MC 182-02-01
York, PA 17403
Attention: Kellie Matthews
Telephone No.: (717) 771-4905
Telecopy No.: (717) 771-4914
PNC Bank, National Association 4.4% 11,000,000
4242 Carlisle Pike
Camp Hill, PA 17011
Attention: Christopher Taylor
Telephone No.: (610) 725-5727
Harris Trust & Savings Bank 6.2% 15,500,000
111 West Monroe Street
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10th Floor West
Chicago, IL 60603-0755
Attention: Helen Dimitriou
Telephone No.: (312) 461-5304
Telecopy No.: (312) 461-5225
National City Bank of Pennsylvania 6.2% 15,500,000
National City Center
20 Stanwix Street
Pittsburgh, PA 15222-4802
Attention: Debra Riefner
Telephone No.: (412) 644-8880
Telecopy No.: (412) 644-8889
Comerica Bank 6.2% 15,500,000
Comerica Tower, De
troit Center
500 Woodward Avenue
MC3280, 9th Floor
Detroit, MI 48226-3280
Attention: Jeff Lafferty
Telephone No.: (313) 222-7806
Telecopy No.: (313) 222-3330
Citizens Bank of Pennsylvania 6.2% 15,500,000
10 S. 2nd Street
Harrisburg, PA 17101
Attention: Joseph Butto
Telephone No.: (717) 777-3357
Telecopy No.: (717) 777-3363
JP Morgan Chase Bank 8.3% 20,750,000
1975 Lake Street
Elmira, NY 14901
Attention: Christine M. McLeod
Vice President
Telephone No.: (607) 734-7824
Telecopy No.: (607) 734-7645
SunTrust Bank 4.4% 11,000,000
919 East Main Street
Richmond, VA 23219
Attention: Steve Derby
Telephone No.: (804) 782-7348
Telecopy No.: (804) 782-5413
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Bank Hapolaim BM (New York) 3.2% 8,000,000
1177 Avenue of the Americas
12th Floor
New York, NY 10036-2790
Attention: Laura Anne Rafa
Telephone No.: (212) 782-2177
Telecopy No.: (212) 782-2382
Fleet National Bank 8.8% 22,000,000
Transportation Division &
Specialty Finance
100 Federal Street
MS - MA DE 10008B
Boston, MA 02110
Attention: Jeffrey A. Millman
Director
Telephone No.: (617) 434-7944
Telecopy No.: (617) 434-0816
The Bank of New York 4.4% 11,000,000
One Wall Street
18th Floor
New York, NY 10286
Attention: Walter Parelli
Telephone No.: (212) 635-6820
Telecopy No.: (212) 635-7978
Bank of Tokyo - Mitsubishi Trust Company 4.4% 11,000,000
1251 Avenue of the Americas
U.S. Corporate Banking Division
15th Floor
New York, NY 10020-1104
Attention: Karen Opsolinski
Telephone No.: (212) 782-4798
Fax: (212) 782-6445
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Credit Lyonnais 4.4% 11,000,000
2200 Ross Avenue
Suite 4400 West
Dallas, TX 75201
Attention: Brian Myers
Telephone No.: (214) 220-2308
Fax: (214) 220-2323
Erste Bank 3.2% 8,000,000
280 Park Avenue
32nd Floor, West Building
New York, NY 10017
Attention: Bob Wagman
Telephone No.: (212) 894-5663
Fax: (212) 984-5627
Standard Federal Bank, N.A. 4.4% 11,000,000
27777 Inkster Road
MC 10-36
Farmington Hills, MI 48333
Attention: Kathleen Hallberg
Inside Counsel
Telephone No.: (248) 822-5707
Fax: (248) 473-4345
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SCHEDULE 3
CALCULATION OF MLA COSTS
(e) The MLA Cost for any Alternate Currency Loan made
by any Lender is calculated in accordance with the following formula:
BY + L(Y-X) + S(Y-Z) % per annum = MLA Cost
-------------------------------------------
100 - (B+S)
where on the day of application of the formula:
B is the percentage of such Lender's eligible liabilities
which the Bank of England requires such Lender to hold on a
non-interest-bearing deposit account in accordance with its cash
ratio requirements;
Y is the interest rate applicable to such Alternate Currency
Loan;
L is the percentage of eligible liabilities which the Bank of
England requires such Lender to maintain as secured money with
members of the London Discount Market Association and/or as secured
call money with certain money brokers and gilt-edged primary market
makers;
X is the rate at which secured Pounds Sterling deposits in the
relevant amount may be placed by such Lender with members of the
London Discount Market Association and/or as secured call money with
certain money brokers and gilt-edged primary market makers at or
about 11:00 a.m. on that day for the relevant period;
S is the percentage of such Lender's eligible liabilities
which the Bank of England requires such Lender to place as a special
deposit; and
Z is the interest rate per annum allowed by the Bank of
England on special deposits.
(f) For the purposes of this Schedule 3:
"eligible liabilities" and "special deposits" have the meanings given to them
at the time of application of the formula by the Bank of England
-i-