EXHIBIT 10
AMENDMENT NO. 4 AND WAIVER UNDER
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 4 AND WAIVER UNDER AMENDED AND RESTATED
CREDIT AGREEMENT (this "Amendment No. 4") is made the 8th day of July, 2003, by
and among JLG INDUSTRIES, INC., a Pennsylvania corporation ("JLG"), and certain
of its subsidiaries listed on Schedule 1 to the Credit Agreement (as defined
below) (each, together with JLG, individually a "Borrower" and individually and
collectively, the "Borrowers"); the Lenders listed on Schedule 2 to the Credit
Agreement; Wachovia Bank, National Association, as administrative agent and
documentation agent ("Administrative Agent"); and BankOne, Michigan, as
syndication agent ("Syndication Agent").
BACKGROUND
Borrowers, Lenders, Administrative Agent and Syndication Agent
entered into an Amended and Restated Credit Agreement dated June 17, 2002, as
amended by Amendment No. 1 to Amended and Restated Credit Agreement dated August
30, 2002, Amendment No. 2 and Waiver under Amended and Restated Credit Agreement
dated February 21, 2003 and Amendment No. 3 under Amended and Restated Credit
Agreement dated April 28, 2003 (as amended and as may be further amended from
time to time, the "Credit Agreement"), to finance the Borrowers' working capital
and general corporate requirements.
Borrowers and Lenders wish to make certain amendments to, and
grant certain waivers under, the Credit Agreement, as set forth herein and
subject to the terms and conditions hereof.
In consideration of the foregoing and the premises and the
agreements hereinafter set forth, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Definitions.
a. General Rule. Unless otherwise defined
herein, terms used herein which are defined in the Credit Agreement shall have
the respective meanings assigned to such terms in the Credit Agreement.
b. Additional Definitions. As of the Amendment
No. 4 Effective Date, the following definitions are hereby added to Section 1.1
of the Credit Agreement to read in their entirety as follows:
"Amendment No. 4" means that certain Amendment No. 4
and Waiver under Amended and Restated Credit Agreement by and
among Borrowers, Lenders, Administrative Agent and Syndication
Agent, dated July 8, 2003.
"Amendment No. 4 Effective Date" means the date on
which the conditions set forth in Paragraph 10 of Amendment
No. 4 have been satisfied.
"Fee Letter" shall mean that certain fee letter dated
as of June 27, 2003, executed by SunTrust Bank and SunTrust
Capital Markets, Inc. and accepted and agreed to by JLG
Industries, Inc.
"Mink Acquisition" means the acquisition of
substantially all of the assets and liabilities of the
telescopic material handler business of "OmniQuip Textron"
from the Seller pursuant to the Mink Purchase Agreement.
"Mink Purchase Agreement" means, that certain
Purchase and Sale Agreement by and among the Seller, Textron
Inc., JLG Acquisition Corporation and JLG.
"Mink Seller Note" shall mean that certain promissory
note, to be executed by JLG Acquisition Corporation in favor
of the Seller, in a principal amount not to exceed $15,000,000
and in substantially the form attached to Amendment No. 4 as
Exhibit A.
"Seller" shall mean Trak International, Inc.
c. Amended Definitions. As of the Amendment No.
4 Effective Date, the following definitions set forth in Section 1.1 of the
Credit Agreement are hereby amended and restated in their entirety as set forth
below:
"Administrative Agent" means SunTrust Bank in its
capacity as Administrative Agent hereunder, and any successor
thereto appointed pursuant to Section 12.9.
"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 New York,
New York, 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; provided that if such day relates to
a borrowing or continuation of, a payment or prepayment of
principal of or interest on, or the Interest Period for, a
LIBOR Rate Loan or a notice by the Borrower with respect to
any such Borrowing, continuation, payment, prepayment or
Interest Period, "Business Day" shall mean any day on which
the Trans-European Automated Real-Time Gross settlement
Express Transfer system (commonly known as TARGET) is open.
"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
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indebtedness, in each case for borrowed money, 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.
"Dollar Equivalent" shall mean, on any date, with
respect to any amount expressed in an Alternate Currency, the
amount of Dollars that would be required to purchase the
amount of such Alternate Currency on the Currency Calculation
Date based upon the spot selling rate quoted on the Reuters
NFX page for the sale of such Alternate Currency in the London
market prior to 4:OO p.m. (London time), as determined by the
Administrative Agent.
"Issuing Lender" means, (i) for all Letters of Credit
issued prior to the Amendment No. 4 Effective Date, Wachovia
Bank, National Association and (ii) for all Letters of Credit
issued on or after the Amendment No. 4 Effective Date,
SunTrust Bank, in its capacity as issuer of any Letter of
Credit, or any successor thereto.
"Prime Rate" means, at any time, the rate of interest
per annum publicly announced from time to time by SunTrust
Bank as its prime rate. Each change in the Prime Rate shall be
effective as oft he opening of business on the day such change
in the Prime Rate occurs. The parties hereto acknowledge that
the rate announced publicly by SunTrust Bank 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.
"Swingline Lender" means SunTrust Bank in its
capacity as swingline lender hereunder.
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"Swingline Termination Date" means the first to occur
of (a) the resignation of SunTrust Bank as Administrative
Agent in accordance with Section 12.9 and (b) the Termination
Date.
"Termination Date" means, the earliest of: (i)
December 31, 2003; (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).
"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 and Reimbursement
Obligations.
d. Deleted Definition. As of the Amendment No.
4 Effective Date, the definition of "Wachovia" set forth in Section 1.1 of the
Credit Agreement is hereby deleted in its entirety.
2. Amendment to Article IV of the Credit Agreement. As
of the Amendment No. 4 Effective Date, Sections 4.4(a) and (b) of the Credit
Agreement are hereby amended and restated in their entirety as follows:
(a) 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. (New York 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.
(b) Intentionally Omitted.
3. Amendment to Article VII of the Credit Agreement. As
of the Amendment No. 4 Effective Date, Article VII of the Credit Agreement is
hereby amended by adding the following new Section 7.7 (Acquisition Documents):
Section 7.7 Acquisition Documents. Promptly upon
execution thereof and subject to any confidentiality
provisions contained therein, duly executed copies of all
principal acquisition documents related to any acquisition
permitted by Section 10.4(c), including the Mink Acquisition.
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4. Amendment to Section 9.1 (Leverage Ratio). As of the
Amendment No. 4 Effective Date, Section 9.1 of the Credit Agreement is hereby
amended and restated in its entirety as follows:
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 6.0:1.0.
5. Amendment to Section 9.2 (Adjusted Interest Coverage
Ratio). As of the Amendment No. 4 Effective Date, Section 9.2 of the Credit
Agreement is hereby amended and restated in its entirety as follows:
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 1.25:1.0.
6. Amendment to Section 9.4 (Adjusted Leverage Ratio).
As of the Amendment No. 4 Effective Date, Section 9.4 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
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
7.0:1.0.
7. Amendment to Section 9.5 (Senior Leverage Ratio). As
of the Amendment No. 4 Effective Date, Section 9.5 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
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 2.5:1.0.
8. Additional Section 10.1(s) (Limitations on Debt and
Guaranty Obligations). As of the Amendment No. 4 Effective Date, the Lenders
hereby agree that effective as of the date the Mink Acquisition is consummated
(the "Mink Acquisition Date"), (i) Section 10. 1(q) of the Credit Agreement is
hereby amended to replace "$15,000,000; and" with "$15,000,000;"; (ii) Section
10.1(r) of the Credit Agreement is hereby amended to replace "at any time." with
"at any time; and"; and (iii) the following subsection 10.1(s) is hereby added:
(s) (i) the Mink Seller Notes and a guaranty by
JLG of the obligations evidenced thereby, (ii) the Debt
described on Schedule 10.1(s) assumed pursuant to the Mink
Purchase Agreement and (iii) any renewal, refinancing,
refunding or extensions of Debt referred to in clauses (i) and
(ii) above so long as the aggregate principal amount thereof
is not increased, and rates of interest and fees with respect
thereto, are not increased by
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more than 2% per annum, the maturity or the weighted average
life thereof is not shortened, and the representations,
warranties, covenants and defaults contained therein are not
more restrictive or onerous than those contained in documents
evidencing or governing the Debt referred to in clauses (i)
and (ii) above;
9. Additional Section 10.3(0). As of the Amendment No. 4
Effective Date, the Lenders hereby agree that effective as of the Mink
Acquisition Date, (i) Section 10.3(m) of the Credit Agreement is hereby amended
to replace "margin financing; and" with "margin financing;"; (ii) Section
10.3(n) of the Credit Agreement is hereby amended to replace "Section 8.12(b)."
with "Section 8.12(b); and"; and (iii) the following subsection 10.3(0) is
hereby added:
(o) Liens on assets acquired pursuant to the
Mink Purchase Agreement to the extent described on Schedule
10.3(o).
10. Amendment to Section 10.4(c) (Limitations on Loans,
Advances, Investments and Acquisitions). As of the Amendment No. 4 Effective
Date, Section 10.4(c) of the Credit Agreement is hereby amended and restated in
its entirety as follows:
(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
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; provided, however, that for
purposes of the Mink Acquisition, (1) the requirement that the
financial information delivered pursuant to clauses (x) and
(y) give 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" shall not apply,
(2) the certification required in clause (x) above shall be
given as of July 31, 2003, after giving pro forma effect to
the Debt incurred in connection with the Mink Acquisition, but
not giving pro forma effect to EBITDA, Consolidated interest
expense and Adjusted Interest Expense related to the assets or
Persons acquired in the Mink Acquisition and (3) the
certifications required in clause (y) above shall be made on a
projected basis as if the Mink Acquisition closing occurred on
July 31, 2003; (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; (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; (iv) such
acquisition shall have been approved by the board of directors
or any committee or Person duly delegated with the authority
of a board of directors of the Person being acquired; (v) the
total consideration paid or payable by such Borrower or such
Subsidiary for such acquisition, excluding the effect of
customary purchase price adjustments, shall not exceed
$100,000,000; (vi) after giving effect to such acquisition,
JLG and its Consolidated Subsidiaries taken as a whole shall
be solvent; and (vii) all consents necessary for such
acquisition shall have been acquired;
11. Amendment to Section 12.1 (Appointment). As of the
Amendment No. 4 Effective Date, Section 12.1 of the Credit Agreement is hereby
amended and restated in its entirety as follows:
12.1 Appointment. Each of the Lenders hereby
irrevocably designates and appoints SunTrust Bank as
Administrative Agent of such Lender under this Agreement and
the other Loan Documents for the term hereof, and each such
Lender irrevocably authorizes SunTrust Bank, 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
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be deemed to refer to the Administrative Agent solely in its
capacity as Administrative Agent and not in its capacity as a
Lender.
12. Amendment to Section 13.l(b) Notices). As of the
Amendment No. 4 Effective Date, Section 13.l(b) of the Credit Agreement is
hereby amended and restated in its entirety as follows:
(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
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 SunTrust Bank as Administrative Agent:
SunTrust Bank
919 E. Main Street
22nd Floor
Richmond, VA 23219
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Attention: Stephen B. Derby
Telephone No.: (804) 782-7348
Telecopy No.: (804) 782-5413
With copies to:
King & Spalding LLP
191 Peachtree Street
Atlanta, GA 30303
Attention: Carolyn Z. Alford, Esquire
Telephone No.: (404) 572-3551
Telecopy No.: (404) 572-5149
If to any Lender: To the Address set forth on
Schedule 2 hereto.
The parties hereto further agree that address,
telephone and telecopy information for the Administrative
Agent in Section 9(b) of the Security Agreement and Paragraph
10 of the Pledge Agreement are hereby amended to the address,
telephone and telecopy information for SunTrust Bank and its
counsel, King & Spalding, set forth above.
13. Amendment to Section 13.4 (Governing Law). As of the
Amendment No. 4 Effective Date, Section 13.4 of the Credit Agreement is hereby
amended and restated in its entirety as follows:
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 State of New York, without
reference to the conflicts or choice of law principles
thereof.
The parties hereto further agree that governing law
provisions of Section 9 (d) of the Security Agreement and
Paragraph 12 of the Pledge Agreement are hereby amended such
that the Security Agreement and Pledge Agreement shall be
governed by, construed and enforced in accordance with the
laws of the State of New York, without reference to the
conflicts or choice of law principles thereof.
14. Amendment to Section 13.5 (Consent to Jurisdiction).
As of the Amendment No. 4 Effective Date, Section 13.5 of the Credit Agreement
is hereby amended and restated in its entirety as follows:
13.5 Consent to Jurisdiction. The
Borrowers hereby irrevocably consent to the personal
jurisdiction of the United States District Court of the
Southern District of New York, and of
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any state court of the State of Supreme Court of the State of
New York sitting in New York county, 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 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.
The parties hereto further agree that the consent to
jurisdiction provisions of Section 9(i) of the Security
Agreement and Paragraph 17 of the Pledge Agreement are hereby
amended such that the parties to the Security Agreement and
Pledge Agreement shall have irrevocably consented to the
personal jurisdiction of the United States District Court of
the Southern District of New York, and of any state court of
the State of Supreme Court of the State of New York sitting in
New York county, in any action, claim or other proceeding
arising out of any dispute in connection therewith.
16. Amendment to Relevant Time. As of the Amendment No. 4
Effective Date, all references to "Charlotte time" shall be deemed amended to
"New York time".
17. Amendment to Schedules. AS of the Amendment No. 4
Effective Date, the Lenders hereby agree that effective as of the Mink
Acquisition Date, the Credit Agreement is hereby amended by adding Schedules
10.1(s) and 10.3(o) attached hereto as Schedules 10.1(s) and 10.3(o) to the
Credit Agreement.
18. Representation as to Senior Indebtedness under the
Mink Seller Note. To induce the Lenders to enter into this Amendment, JLG
represents and warrants that the definition of "Senior Indebtedness" contained
in the Indenture referenced in the Mink Seller Note includes without limitation
the Credit Agreement, as amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement refinancing, replacing or otherwise restructuring all or any portion
of the indebtedness under the Credit Agreement or any successor or replacement
agreement.
19. Notices, Waivers and Consents for Successor
Administrative Agent.
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a. Administrative Agent Resignation Notice. As
of the Amendment No. 4 Effective Date, pursuant to Section 12.9 of the Credit
Agreement, Wachovia Bank, National Association hereby gives notice of its
resignation of its position as Administrative Agent and documentation agent
under the Credit Agreement, effective as of the Amendment No. 4 Effective Date.
b. Waiver. Section 12.9 of the Credit Agreement
requires that the Administrative Agent give at least twenty Business Days'
notice of its resignation to the Lenders and the Borrowers. As of the Amendment
No. 4 Effective Date, the Borrowers and Lenders hereby waive such twenty
Business Days' notice requirement in Section 12.9 and accept the resignation of
Wachovia Bank, National Association as Administrative Agent and Documentation
Agent.
C. Appointment of Successor Administrative
Agent. Effective as of the Amendment No. 4 Effective Date, the Lenders hereby
appoint SunTrust Bank as successor Administrative Agent under the Credit
Agreement (the "New Administrative Agent") to Wachovia Bank, National
Association (the "Retiring Administrative Agent"), and SunTrust Bank hereby
accepts such appointment. Pursuant to Section 12.9 of the Credit Agreement, as
of the Amendment No. 4 Effective Date, the New Administrative Agent succeeds to
and becomes vested with all rights, powers, privileges and duties of the
Retiring Administrative Agent, and the Retiring Administrative Agent is
discharged from its duties and obligations under the Credit Agreement.
d. Representations and Warranties of New
Administrative Agent. As of the Amendment No. 4 Effective Date, the New
Administrative Agent hereby represents and warrants to the Lenders that (i) it
is a Georgia banking corporation and (ii) it has minimum capital and surplus of
at least $500,000,000.
20. Representations and Warranties. As of the Amendment
No. 4 Effective Date, each Borrower hereby represents and warrants to Lenders as
follows:
a. Representations. (i) The representations and
warranties set forth in Article VI of the Credit Agreement, together with the
applicable Schedules related thereto, as amended and restated in connection with
this Amendment No. 4, are true and correct in all material respects as of the
Amendment No. 4 Effective Date, except for any representation or warranty made
as of an earlier date, which representation and warranty shall remain true and
correct in all material respects as of such earlier date; (ii) no Event of
Default or Default under the Credit Agreement has occurred and is continuing;
and (iii) no Borrower is aware of any Material Adverse Effect since July 31,
2002.
b. Power and Authority. Each Borrower has the
power and authority under the laws of its jurisdiction of incorporation or
formation and under its respective formation documents to execute and perform
this Amendment No. 4 and the other documents and agreements required hereunder
(collectively, the "Amendment Documents"); all necessary actions (corporate or
otherwise) for the execution and performance by each Borrower of the Amendment
Documents have been taken; and each of the Amendment Documents and the Credit
Agreement, as amended, constitute the valid and binding obligations of each
Borrower,
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enforceable in accordance with its respective terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
state, federal or foreign debtor relief laws from time to time in effect which
affect the enforcement of creditors' rights in general and the availability of
equitable remedies.
c. No Violations of Law or Agreements. The
execution and performance of the Amendment Documents by Borrowers in accordance
with their respective terms will not: (i) violate any provisions of any
applicable law or regulation, foreign, federal, state or local, or the formation
or organizational documents of any Borrower or (ii) result in any breach or
violation of, or constitute a default or require the obtaining of any consent
under, any material agreement or instrument by which any Borrower is a party or
by which any of its property may be bound.
21. Conditions to Effectiveness of Amendment. This
Amendment No. 4 shall be effective upon the satisfaction (or waiver in
accordance with Section 13.13 of the Credit Agreement) of each of the following
conditions:
a. Amendment No. 4. This Amendment No. 4 shall
have been duly executed by Borrowers, Required Lenders, the Retiring
Administrative Agent and the New Administrative Agent.
b. Overdraft Facility. The New Administrative
Agent shall have received an amendment to the documentation evidencing the
Overdraft Facility, effecting modifications of the Overdraft Facility that
conform to the modifications to the Credit Agreement effected by Amendment No. 4
in all pertinent respects, in form and substance reasonably acceptable to New
Administrative Agent.
c. Amendment Fees. The Borrowers shall have
paid to the New Administrative Agent, for the benefit of each Lender that has
executed this Amendment No. 4, on a pro rata basis, an amendment fee equal to
0.125% of each such executing Lender's Commitment.
d. Fee Letter. The Borrower shall have executed
and delivered to the New Administrative Agent the Fee Letter and paid to the
Administrative Agent all fees required to be paid thereunder.
e. Consents. The New Administrative Agent shall
have received certified copies of all consents, approvals, authorizations,
registrations and filings and orders required or advisable to be made or
obtained under any requirement of law, or by any contractual obligation of each
Borrower, in connection with the execution, delivery, performance, validity and
enforceability of this Amendment or any of the transactions contemplated
thereby, and such consents, approvals, authorizations, registrations, filings
and orders shall be in full force and effect, all applicable waiting periods
shall have expired.
f. Retiring Administrative Agent Fees.
Borrowers shall have paid Retiring Administrative Agent for all accrued fees and
out-of-pocket reasonable expenses (including without limitation reasonable fees
and expenses of counsel) incurred by the Retiring
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Administrative Agent in connection with the preparation, execution and delivery
of this Amendment No. 4.
g. Assignment and Acceptance. SunTrust Bank and
Wachovia Bank, National Association shall have entered into an Assignment and
Acceptance substantially in the form of Exhibit G to the Credit Agreement
assigning 100% of Wachovia Bank, National Association's Commitment and
outstanding Revolving Credit Exposure to SunTrust Bank.
h. Letters of Credit. SunTrust Bank shall have
issued Letters of Credit to Wachovia Bank, National Association in the amounts
and with the maturities matching those letters of credit identified on Exhibit C
hereto and otherwise on terms and conditions acceptable to SunTrust Bank and
Wachovia Bank, National Association.
22. Affirmations. Borrowers hereby: (i) affirm all the
provisions of the Credit Agreement, as amended by this Amendment No. 4, and (ii)
agree that the terms and conditions of the Credit Agreement and the Collateral
Security Documents shall continue in full force and effect as amended hereby.
23. Release. TO INDUCE THE NEW ADMINISTRATIVE AGENT AND
THE LENDERS TO AGREE TO THE TERMS OF THIS AMENDMENT NO.4, BORROWERS REPRESENT
AND WARRANT THAT AS OF THE DATE OF THIS AMENDMENT NO. 4, THERE ARE NO CLAIMS OR
OFFSETS AGAINST OR DEFENSES OR COUNTERCLAIMS TO ITS OBLIGATIONS UNDER THE LOAN
DOCUMENTS AND IN ACCORDANCE THEREWITH:
a. EACH BORROWER WAIVES ANY AND ALL SUCH
CLAIMS, OFFSETS, DEFENSES OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING
PRIOR TO THE DATE OF ITS EXECUTION OF THIS AMENDMENT NO. 4; AND
b. EACH BORROWER RELEASES AND DISCHARGES THE
RETIRING ADMINISTRATIVE AGENT, THE NEW ADMINISTRATIVE AGENT AND THE LENDERS, AND
THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS,
AFFILIATES AND ATTORNEYS (COLLECTIVELY, THE "RELEASED PARTIES") FROM ANY AND ALL
OBLIGATION, INDEBTEDNESS, LIABILITIES, CLAIMS, RIGHTS, CAUSES OF ACTION OR
DEMANDS WHATSOEVER, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, IN LAW
OR EQUITY, WHICH ANY BORROWER EVER HAD, NOW HAS, CLAIMS TO HAVE OR MAY HAVE
AGAINST ANY RELEASED PARTY ARISING PRIOR TO THE DATE HEREOF AND FROM OR IN
CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY,
OTHER THAN OBLIGATIONS UNDER THE LOAN DOCUMENTS.
24. Miscellaneous.
a. Borrowers agree to pay or reimburse the New
Administrative Agent for all out-of-pocket reasonable fees and expenses
(including without limitation
-13-
reasonable fees and expenses of counsel) incurred by the New Administrative
Agent in connection with the preparation, execution and delivery of this
Amendment No. 4.
b. This Amendment No.4 shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflicts of law or choice of law principles.
c. This Amendment No.4 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.
d. Except as expressly set forth herein, the
execution, delivery and performance of this Amendment No. 4 shall not operate as
a waiver of any right, power or remedy of the New Administrative Agent or
Lenders under the Credit Agreement and the agreements and documents executed in
connection therewith or constitute a waiver of any provision thereof, nor shall
anything contained herein be construed as or constitute a consent to or waiver
of any further period or provision of the Credit Agreement.
e. Borrowers acknowledge and agree that
Retiring Administrative Agent shall be entitled to all indemnification rights
existing under the Credit Agreement with respect to all actions and inactions
performed by it as Administrative Agent, Issuing Bank, Swingline Lender and
Lender prior to the Amendment No. 4 Effective Date.
25. Assignment of Liens and Filings. Retiring
Administrative Agent hereby (i) agrees to execute and deliver such assignments
or amendments to deeds of trust or mortgages, intellectual property filings, and
other documents as the Borrower or New Administrative Agent may reasonably
request and (ii) authorizes the Borrowers and the New Administrative Agent to
file all Uniform Commercial Code financing statement amendments, in each case at
the expense of the Borrower in order to evidence or give public notice of the
change in Administrative Agent, so long as such assignments, amendments or other
documents are without recourse or warranty to the Retiring Administrative
Agent. Retiring Administrative Agent agrees to deliver to the New Administrative
Agent, promptly after the Amendment No. 4 Effective Date, all promissory notes,
stock certificates and other collateral in its possession, with all instruments
of transfer or stock powers delivered in connection therewith, and until such
time acknowledges that it is retaining control over such notes, stock
certificates and other collateral on behalf of the New Administrative Agent. The
Borrowers acknowledge and agree that the change in Administrative Agent shall
not affect in any manner the creation, perfection or priority of any Liens
previously or hereafter granted to the Administrative Agent under the Loan
Documents, and agrees to give, execute, deliver, file and/or record any notice,
statement, instrument document, agreement or other papers that may be necessary
or desirable, or that the Administrative Agent may request, in order to evidence
the change in the Administrative Agent.
26. Confidentiality. Each of the Administrative Agent and
the Lenders hereby acknowledges and agrees that pursuant to Section 2 of the
Confidentiality Agreement attached hereto as Exhibit B (the "Confidentiality
Agreement" ) (i) JLG has informed them of the confidential nature of all
Information (as defined in the Confidentiality Agreement) and (ii) the
-14-
Administrative Agent or such Lender will keep the Information that it is
furnished confidential, will not (without the prior written consent of the
appropriate Disclosing Party) disclose such Information in any manner
whatsoever, and will not use any Information other than in connection with
evaluating the Mink Acquisition, except to the extent permitted by the
Confidentiality Agreement.
-15-
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 4
the day and year first above written.
Attest: JLG INDUSTRIES, INC.
By: /s/ Edward K. Duplaga By: /s/ James H. Woodward, Jr.
------------------------------- -----------------------------------
Name: Edward K. Duplaga Name:
Title: Assistant Secretary Title:
Attest: FULTON INTERNATIONAL, INC.
By: /s/ Edward K. Duplaga By: /s/ James H. Woodward, Jr.
------------------------------- -----------------------------------
Name: Edward K. Duplaga Name:
Title: Assistant Secretary Title:
Attest: JLG EQUIPMENT SERVICES, INC.
By: /s/ Edward K. Duplaga By: /s/ James H. Woodward, Jr.
------------------------------- -----------------------------------
Name: Edward K. Duplaga Name:
Title: Assistant Secretary Title:
Attest: GRADALL INDUSTRIES, INC.
By: /s/ Edward K. Duplaga By: /s/ James H. Woodward, Jr.
------------------------------- -----------------------------------
Name: Edward K. Duplaga Name:
Title: Assistant Secretary Title:
Attest: THE GRADALL COMPANY
By: /s/ Edward K. Duplaga By: /s/ James H. Woodward, Jr.
------------------------------- -----------------------------------
Name: Edward K. Duplaga Name:
Title: Assistant Secretary Title:
[EXECUTIONS CONTINUED]
-16-
Attest: ACCESS FINANCIAL SOLUTIONS, INC.
By: /s/ Edward K. Duplaga By: /s/ James H. Woodward, Jr.
------------------------------- -----------------------------------
Name: Edward K. Duplaga Name:
Title: Assistant Secretary Title:
Attest: JLG MANUFACTURING, LLC
By: /s/ JGL INDUSTRIES, INC.
By: Edward K. Duplaga By: /s/ James H. Woodward, Jr.
------------------------------- -----------------------------------
Name: Edward K. Duplaga Name:
Title: Assistant Secretary Title:
Attest: JLG EUROPE BV
By: _______________________________ By: /s/ James H. Woodward, Jr.
-----------------------------------
Name: Name:
Title: Title:
Attest: JLG MANUFACTURING EUROPE BVBA
By: _______________________________ By: /s/ James H. Woodward, Jr.
-----------------------------------
Name: Name:
Title: Title:
[EXECUTIONS CONTINUED]
-17-
LENDERS
WACHOVIA BANK, NATIONAL ASSOCIATION
as the Retiring Administrative Agent
By: /s/ JORGE A. GONZALEZ
----------------------------------------
Name: JORGE A. GONZALEZ
Title: Managing Director
BANK ONE, NA, successor by merger to Bank
One, Michigan, individually as a Lender and
in its capacity as Syndication Agent
By: ________________________________________
Name:
Title:
JP MORGAN CHASE BANK, successor by merger to
THE CHASE MANHATTAN BANK, N.A., as a Lender
By: ________________________________________
Name:
Title:
BANCO ESPIRITO SANTO, S.A., NASSAU BRANCH,
as a Lender
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
[EXECUTIONS CONTINUED]
-18-
LENDERS
WACHOVIA BANK, NATIONAL ASSOCIATION as the
Retiring Administrative Agent
By: ________________________________________
Name:
Title:
BANK ONE, NA, successor by merger to Bank
One, Michigan, individually as a Lender and
in its capacity as Syndication Agent
By: ________________________________________
Name:
Title:
JP MORGAN CHASE BANK, successor by merger to
THE CHASE MANHATTAN BANK, N.A., as a Lender
By: ________________________________________
Name:
Title:
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
[EXECUTIONS CONTINUED]
MANUFACTURERS AND TRADERS TRUST COMPANY,
successor in interest to Allfirst Bank,
f/k/a The First National Bank of Maryland,
as a Lender
By: /s/ Kellie M. Matthews
----------------------------------------
Name: Kellie M. Matthews
Title: Administrative Vice President
HARRIS TRUST AND SAVINGS BANK, as a Lender
By: ________________________________________
Name:
Title:
NATIONAL CITY BANK OF PENNSYLVANIA, as a
Lender
By: ________________________________________
Name:
Title:
COMERICA BANK, as a Lender
By: ________________________________________
Name:
Title:
CITIZENS BANK OF PENNSYLVNIA, as a Lender
By: ________________________________________
Name:
Title:
[EXECUTIONS CONTINUED]
MANUFACTURERS AND TRADERS TRUST
COMPANY, successor in interest to Allfirst Bank,
f/k/a The First National Bank of Maryland, as a
Lender
By: ____________________________________________
Name:
Title:
HARRIS TRUST AND SAVINGS BANK,
as a Lender
By: /s/ MICHAEL D. PINCUS
-------------------------------------------
Name: MICHAEL D. PINCUS
Title: MANAGING DIRECTOR
NATIONAL CITY BANK OF PENNSYLVANIA,
as a Lender
By: ____________________________________________
Name:
Title:
COMERICA BANK, as a Lender
By: ____________________________________________
Name:
Title:
CITIZENS BANK OF PENNSYLVANIA, as a
Lender
By: ____________________________________________
Name:
Title:
[EXECUTIONS CONTINUED]
MANUFACTURERS AND TRADERS TRUST
COMPANY, successor in interest to Allfirst Bank,
f/k/a The First National Bank of Maryland, as a
Lender
By: ____________________________________________
Name:
Title:
HARRIS TRUST AND SAVINGS BANK,
as a Lender
By: ____________________________________________
Name:
Title:
NATIONAL CITY BANK OF PENNSYLVANIA,
as a Lender
By: ____________________________________________
Name:
Title:
COMERICA BANK, as a Lender
By: ____________________________________________
Name:
Title:
CITIZENS BANK OF PENNSYLVANIA, as a
Lender
By: /s/ Joseph N. Butto
--------------------------------------------
Name: Joseph N. Butto
Title: Vice President
[EXECUTIONS CONTINUED]
SUNTRUST BANK, as the New Administrative
Agent and a Lender
By: /s/ William Christensen
--------------------------------------------
Name: William Christensen
Title: Vice President
BANK HAPOALIM B.M., as a Lender
By: ____________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a Lender
By: ____________________________________________
Name:
Title:
THE BANK OF NEW YORK, as a Lender
By: ____________________________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender
By: ____________________________________________
Name:
Title:
[EXECUTIONS CONTINUED]
SUNTRUST BANK, as the New Administrative
Agent and a Lender
By: ____________________________________
Name:
Title:
BANK HAPOALIM B.M., as a Lender
By: ____________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ Jay Chall
------------------------------------
Name: Jay Chall
Title: Director
By: /s/ Cassandra Droogan
------------------------------------
Name: CASSANDRA DROOGAN
Title: ASSOCIATE
THE BANK OF NEW YORK, as a Lender
By: ____________________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender
By: ____________________________________
Name:
Title:
[EXECUTIONS CONTINUED]
CREDIT LYONNAIS NEW YORK BRANCH, as a
Lender
By: ____________________________________
Name:
Title:
ERSTE BANK, as a Lender
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
STANDARD FEDERAL BANK, N.A.,
as a Lender
By: /s/ Mark T Ossman
------------------------------------
Name: MARK T OSSMAN
Title: AVP
SUNBANK,
as a Lender
By: ____________________________________
Name:
Title:
-19-
Schedule 10.1(s)
DEBT ASSUMED IN MINK ACQUISITION
1. approximately $3,600,000 of Capital Leases in
connection with the Lease Agreement dated February 1, 1999 between the City of
Oakes, North Dakota and Oakes Enhancement, Inc.
2. Guaranty of Textron, Inc. dated September 28, 1999 in
favor of First Union National Bank (guarantee of First Union's Irrevocable
Letter of Credit No. S138931 in the amount of $157,000, issued November 20, 1997
in favor of Transport Insurance Company and/or Continental Casualty Company
and/or Transcontinental Technical Services, Inc. for the account of the Seller)
3. approximately $4,700,000 of Operating Lease Value in
connection with various Operating Leases
4. approximately $16,300,000 of Recourse Obligations in
connection with the third party customer financings of the Seller(1)
5. other Debt being assumed by JLG or any of its
Subsidiaries in connection with the transactions contemplated by the Mink
Purchase Agreement not to exceed $1,000,000.
- -----------------------------
(1) The amount of Recourse Obligations listed represents the stated
amount of the obligations pursuant to such customer financings, as required by
the definition of Guaranty Obligations. The actual liability of JLG and its
Subsidiaries is expected to be significantly less because any payments required
to be made as a result of these assumed obligations should be substantially
mitigated by the resale value of the assets that are the subject of such
customer financings.
-22-
Schedule 10.3(o)
LIENS ASSUMED IN MINK ACQUISITION
Liens on assets acquired in connection with the Mink Acquisition in connection
with:
1. Capital Leases in connection with the Lease Agreement
dated February 1, 1999 between the City of Oakes, North Dakota and Oakes
Enhancement, Inc.;
2. Liens securing the guarantee by Textron, Inc. dated
September 28, 1999 in favor of First Union National Bank, which guarantees the
reimbursement obligation associated with First Union's Irrevocable Letter of
Credit No. S138931 in the amount of $157,000, issued November 20, 1997 in favor
of Transport Insurance Company and/or Continental Casualty Company and/or
Transcontinental Technical Services, Inc. for the account of the Seller to the
extent that the liability associated with such Lien does not exceed $157,000;
3. Liens in favor of GFC Leasing, a Division of Gordon
Flesch Company, Inc. on equipment (UYP02217 FAX) located at 901 Sunset Drive,
Port Washington, WI 53074 and equipment (UYP20215 FAX) located at 369 W Western
Avenue, Port Washington, WI 53074;
4. Liens in favor of J. Rubin & Co. on between 80,000
and 150,000 pounds of steel bars and shapes delivered to Seller on a monthly
basis;
5. Liens in favor of Associates Leasing Inc. on New
Daewoo Model G30S Forklift Truck, Serial #CX-01023 & G30S Serial #99-02859;
6. Liens in favor of Wisconsin Lift Truck Corp. on one
1998 American Lincoln Model 6150 Serial Number: 630300;
-23-
EXHIBIT A
FORM OF MINK SELLER NOTE
UNSECURED SUBORDINATED PROMISSORY NOTE
FIFTEEN MILLION DOLLARS ($15,000,000) [_______________], 2003
FOR VALUE RECEIVED, JLG ACQUISITION COMPANY, a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of TRAK
INTERNATIONAL, INC., a Delaware corporation (the "Lender") on [__________], 2005
(the "Maturity Date"), the principal sum of Fifteen Million Dollars
($15,000,000) (the "Loan"), together with all accrued and unpaid interest
thereon to the date of payment as hereinafter provided.
Recitals
A. Concurrent with the execution of this Unsecured Subordinated
Promissory Note (this "Note"), the Borrower, the Lender, JLG Industries, Inc.
("JLG") and Textron Inc. entered into that certain Purchase and Sale Agreement,
dated as of even date herewith (as amended, restated or otherwise modified from
time to time, the "Purchase Agreement"), pursuant to which the Borrower will
purchase certain assets and assume certain liabilities of the Lender.
Capitalized terms used, but not defined, in this Note shall have the meanings
ascribed thereto in the Purchase Agreement.
B. The Borrower has requested that the Lender extend credit to
the Borrower to finance a portion of the purchase price for the Borrower's
acquisition pursuant to the Purchase Agreement, and the Lender has so agreed,
subject to the terms and conditions set forth herein.
1. Subject to paragraph 5 below, interest shall accrue on the
unpaid principal balance of this Note (computed on the basis of a 360-day year
for the actual number of days elapsed) from and including the date hereof until
but excluding the Maturity Date at the fixed rate of eight and one-quarter
percent (8.25%) per annum (the "Applicable Rate"). Such interest shall be
payable by the Borrower monthly in arrears on the first Business Day of each
calendar month, following the Closing Date, and ending on but excluding the date
on which the Loan is repaid in full. As used herein. "Business Day" shall mean
any day other than a Saturday, Sunday or any other day on which banking
institutions in Washington, DC, are required or permitted to be closed.
2. All payments of principal and interest shall be made to the
Lender in lawful money of the United States of America and in immediately
available funds. If any payment hereunder becomes due and payable on a day other
than a Business Day, the due date of such payment shall be extended to the next
succeeding Business Day, and, in the case of any payment of principal, interest
shall accrue thereon during such extension.
-24-
3. The obligations of the Borrower to the Lender under this Note
are guaranteed by JLG pursuant to Section 17.4 of the Purchase Agreement. The
Lender (and each transferee or assignee of the Lender) by its acceptance of this
Note covenants and agrees that any and all obligations JLG may have in respect
of this Note, whether as guarantor pursuant to Section 17.4 of the Purchase
Agreement or otherwise, and including any liability in respect of payments of
principal and interest on this Note, are unsecured and subordinated and subject
in right of payment and priority to the prior payment as and when due of all
Senior Indebtedness (as defined in paragraph 6 hereof).
4. This Note may be prepaid at any time and from time to time,
upon one Business Day's written notice to the Lender, in whole or in part,
without premium or penalty. If any such notice is given, the amount specified in
such notice shall be due and payable by the Borrower on the date specified
therein, together with accrued interest to (but excluding) such date on the
principal amount prepaid. In the event of prepayment of this Note in part only,
a new Note for the unpaid portion hereof shall be issued in the name of the
person or entity in whose name this Note is registered upon the cancellation
hereof.
5. In the event that the Borrower fails to pay any principal of
the Loan when the same becomes due and payable or any interest on the Loan
within five (5) Business Days after the same becomes due and payable, then such
failure shall constitute an "Event of Default" hereunder. Following the
occurrence of an Event of Default, and for so long as such Event of Default
continues, this Note shall bear interest at a rate equal to the Applicable Rate
plus two percent (2%) per annum.
6. The Borrower covenants and agrees, and the Lender (and each
transferee or assignee of the Lender) by its acceptance of this Note likewise
covenants and agrees; that the payment of the principal of, and interest on,
this Note shall be unsecured and subordinated and subject in right of payment
and priority to the prior payment as and when due of all Senior Indebtedness. As
used herein, "Senior Indebtedness" shall mean the principal of, premium, if any,
and interest due and payable on or in connection with, and all fees, costs,
expenses and other amounts accrued or due on or in connection with (i) that
certain Indenture, dated June 17, 2002, by and among JLG, the Note Guarantors
party thereto, and The Bank of New York, as trustee, as the same may be amended,
restated or otherwise modified from time to time (the "Indenture"), (ii) any
Senior Indebtedness, as defined in the Indenture, (iii) the JLG Industries, Inc.
8 1/4% Senior Notes due 2008 issued pursuant to that certain Indenture, dated as
of May 5, 2003, among JLG, the Note Guarantors party thereto, and The Bank of
New York, as trustee, (iv) that certain Amended and Restated Credit Agreement,
dated June 17, 2002, by and among JLG and its subsidiaries listed on Schedule 1
thereto, as borrowers, and the lenders listed on Schedule 2 thereto and Wachovia
Bank, National Association, as Administrative Agent and Documentation Agent, and
Bank One, Michigan, as Syndication Agent, as the same may be amended, restated
or otherwise modified from time to time, and (v) any Indebtedness, as defined in
the Indenture, that by its express terms is senior in right of payment to this
Note.
The Borrower and each endorser hereof waives demand, presentment,
protest, diligence, notice of dishonor and any other formality in connection
with this Note. Should the obligations evidenced by this Note or any part
thereof be collected in any proceeding or be placed in the hands of attorneys
for collection, the Borrower agrees to pay, in addition to the principal,
interest
-25-
and other sums due and payable hereon, all reasonable out-of-pocket costs of
collecting this Note, including reasonable attorneys' fees and expenses.
7. Any notice required or permitted to be given hereunder shall
be deemed given if mailed, first class, postage prepaid, or sent by courier to
the address below, or in either case as either such party may designate to the
other in writing;
if to the Lender:
c/o Textron Inc.
40 Westminster Street
Providence, Rhode Island 02903
Attention: Executive Vice President and General Counsel
Facsimile: (401) 457-3666
and if to Borrower:
c/o JLG Industries, Inc.
13224 Fountainhead Plaza
Hagerstown, MD 21742-2678
Attention: Senior Vice President and General Counsel
Facsimile: (240) 313-1807
8. No amendment or waiver of any provision of this Note, or
consent to any departure by Borrower therefrom, shall in any event be effective
unless the same is in writing and signed by the Lender, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
9. No failure on the part of the Lender to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
are cumulative and not exclusive of any remedies provided by law.
10. This Note shall be binding upon and inure to the benefit of
the Borrower and the Lender and their respective successors and assigns. The
Lender may assign to any person all or any part of, or any interest in, the
Lender's rights and benefits under this Note.
11. This Note is made under, and shall be governed by and
construed in accordance with, the laws of the State of Delaware applicable to
contracts made and to be performed entirely within such State and without giving
effect to choice of law principles of such State.
-26-
BORROWER:
JLG ACQUISITION CORPORATION
By: ___________________________
Name:
Title:
-27-
EXHIBIT B
MINK CONFIDENTIALITY AGREEMENT
[CIRCULATED SEPARATELY, TO BE ATTACHED.]
-28-
EXHIBIT C
OUTSTANDING LETTERS OF CREDIT
LC NUMBER BENEFICIARY APPLICANT AMOUNT MATURITY
--------- ----------- --------- ------ --------
1 SM410114P Safety Mutual Casualty Company Gradall $ 25,000 10/28/03
2 SM422067W ABN AMRO, Brussels JLG $ 140,000 7/25/03
3 SM200250W Royal Indemnity Company JLG $1,696,000 8/1/03
Commonwealth National
4 SM201289W Bank JLG $6,200,000 12/17/03
5 SM416578 Akbank Gradall $ 858,270 8/20/03
6 SM201674W Commonwealth of PA JLG $ 326,487 1/15/04