Exhibit 10.17
EXECUTION COPY
REVOLVING CREDIT AGREEMENT
dated as of September 23, 2003
among
JLG INDUSTRIES, INC.,
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
SUNTRUST BANK,
as Issuing Bank, Swingline Lender
and Administrative Agent
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Syndication Agent
and
STANDARD FEDERAL BANK NA,
as Documentation Agent
================================================================================
SUNTRUST CAPITAL MARKETS, INC.,
as Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; CONSTRUCTION............................................................1
Section 1.1. Definitions.................................................................1
Section 1.2. Classifications of Loans and Borrowings....................................34
Section 1.3. Accounting Terms and Determination.........................................34
Section 1.4. Terms Generally............................................................34
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS.................................................35
Section 2.1. General Description of Facilities..........................................35
Section 2.2. Revolving Loans............................................................35
Section 2.3. Procedure for Revolving Borrowings.........................................35
Section 2.4. Swingline Commitment.......................................................36
Section 2.5. Procedure for Swingline Loans..............................................36
Section 2.6. Funding of Borrowings......................................................37
Section 2.7. Interest Elections.........................................................38
Section 2.8. Optional Reduction and Termination of Commitments..........................39
Section 2.9. Repayment of Loans.........................................................39
Section 2.10. Evidence of Indebtedness...................................................40
Section 2.11. Optional Prepayments.......................................................40
Section 2.12. Mandatory Prepayments......................................................40
Section 2.13. Interest on Loans..........................................................42
Section 2.14. Fees.......................................................................42
Section 2.15. Computation of Interest and Fees...........................................43
Section 2.16. Inability to Determine Interest Rates......................................43
Section 2.17. Illegality.................................................................44
Section 2.18. Increased Costs............................................................45
Section 2.19. Funding Indemnity..........................................................46
Section 2.20. Taxes......................................................................47
Section 2.21. Payments Generally; Pro Rata Treatment; Sharing of Set-offs................49
Section 2.22. Letters of Credit..........................................................51
Section 2.23. Extension of Revolving Commitment Termination Date.........................56
Section 2.24. Alternate Currency Provisions..............................................58
Section 2.25. European Economic and Monetary Union.......................................60
Section 2.26. Collateral.................................................................62
Section 2.27. Increase of Commitments, Additional Lenders................................62
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT.................................63
Section 3.1. Conditions To Effectiveness................................................63
Section 3.2. Each Credit Event..........................................................66
Section 3.3. Delivery of Documents......................................................67
ARTICLE IV REPRESENTATIONS AND WARRANTIES......................................................67
Section 4.1. Existence; Power...........................................................67
Section 4.2. Organizational Power; Authorization........................................67
Section 4.3. Governmental Approvals; No Conflicts.......................................67
Section 4.4. Financial Statements.......................................................68
Section 4.5. Litigation and Environmental Matters.......................................68
Section 4.6. Compliance with Laws and Agreements........................................69
Section 4.7. Investment Company Act, Etc................................................69
Section 4.8. Taxes......................................................................69
Section 4.9. Margin Regulations.........................................................69
Section 4.10. ERISA......................................................................69
Section 4.11. Ownership of Property......................................................70
Section 4.12. Disclosure.................................................................70
Section 4.13. Labor Relations............................................................70
Section 4.14. Subsidiaries...............................................................71
Section 4.15. Insolvency.................................................................71
Section 4.16. Subordination of Subordinated Debt; Senior Unsecured Notes.................71
ARTICLE V AFFIRMATIVE COVENANTS...............................................................71
Section 5.1. Financial Statements and Other Information.................................71
Section 5.2. Notices of Material Events.................................................73
Section 5.3. Existence; Conduct of Business.............................................73
Section 5.4. Compliance with Laws, Etc..................................................74
Section 5.5. Payment of Obligations.....................................................74
Section 5.6. Books and Records..........................................................74
Section 5.7. Visitation, Inspection, Etc................................................74
Section 5.8. Maintenance of Properties; Insurance.......................................75
Section 5.9. Use of Proceeds and Letters of Credit......................................75
Section 5.10. Cash Management............................................................75
Section 5.11. Additional Subsidiaries....................................................75
Section 5.12. Further Assurances.........................................................77
Section 5.13. Post-Closing Requirements..................................................77
ARTICLE VI FINANCIAL COVENANTS.................................................................78
Section 6.1. Leverage Ratio.............................................................78
Section 6.2. Senior Leverage Ratio......................................................78
Section 6.3. Fixed Charge Coverage Ratio................................................78
Section 6.4. Consolidated Tangible Net Worth............................................79
ARTICLE VII NEGATIVE COVENANTS..................................................................79
Section 7.1. Indebtedness; Preferred Equity.............................................79
Section 7.2. Negative Pledge............................................................81
Section 7.3. Fundamental Changes........................................................82
Section 7.4. Investments, Loans, Etc....................................................83
Section 7.5. Restricted Payments........................................................85
Section 7.6. Sale of Assets.............................................................86
Section 7.7. Transactions with Affiliates...............................................87
Section 7.8. Restrictive Agreements.....................................................87
Section 7.9. Sale and Leaseback Transactions............................................88
Section 7.10. Hedging Transactions.......................................................88
Section 7.11. Payment of and Amendments to Senior Unsecured Notes and Subordinated Debt..88
Section 7.12. Accounting Changes; Fiscal Year............................................89
ARTICLE VIII EVENTS OF DEFAULT...................................................................89
Section ▇.▇.▇▇▇▇▇▇ of Default.............................................................89
Section 8.2.Application of Proceeds After Acceleration or Maturity........................92
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ARTICLE IX THE ADMINISTRATIVE AGENT............................................................92
Section 9.1. Appointment of Administrative Agent........................................92
Section 9.2. Nature of Duties of Administrative Agent...................................93
Section 9.3. Lack of Reliance on the Administrative Agent...............................94
Section 9.4. Certain Rights of the Administrative Agent.................................94
Section 9.5. Reliance by Administrative Agent...........................................94
Section 9.6. The Administrative Agent in its Individual Capacity........................94
Section 9.7. Successor Administrative Agent.............................................94
Section 9.8. Authorization to Execute other Loan Documents..............................95
Section 9.9. Appointment of Syndication Agent and Documentation Agent...................95
ARTICLE X MISCELLANEOUS.......................................................................95
Section 10.1. Notices....................................................................95
Section 10.2. Waiver; Amendments.........................................................98
Section 10.3. Expenses; Indemnification..................................................99
Section 10.4. Successors and Assigns....................................................100
Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process................103
Section 10.6. WAIVER OF JURY TRIAL......................................................103
Section 10.7. Right of Setoff...........................................................104
Section 10.8. Counterparts; Integration.................................................104
Section 10.9. Survival..................................................................104
Section 10.10. Severability..............................................................105
Section 10.11. Confidentiality...........................................................105
Section 10.12. Interest Rate Limitation..................................................105
Section 10.13. Waiver of Effect of Corporate Seal........................................106
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Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule II - Existing Letters of Credit
Schedule III - Existing Synthetic Leases
Schedule 4.5 - Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 5.13 - Post Closing Bank Account Control Agreements
and Investment Control Agreements
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Exhibits
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Subsidiary Guaranty Agreement
Exhibit E - Form of Borrowing Base Certificate
Exhibit F Form of Investment Control Agreement
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.5 - Form of Notice of Swingline Loan
Exhibit 2.7 - Form of Notice of Conversion/Continuation
Exhibit 5.1(c) - Form of Compliance Certificate
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is made and
entered into as of September 23, 2003 by and among JLG INDUSTRIES, INC., a
Pennsylvania corporation (the "Borrower"), the several banks and other financial
institutions and lenders from time to time party hereto (the "Lenders"),
SUNTRUST BANK, in its capacity as administrative agent for the Lenders (the
"Administrative Agent"), as issuing bank (the "Issuing Bank") and as swingline
lender (the "Swingline Lender"), MANUFACTURERS AND TRADERS TRUST COMPANY, as
syndication agent (the "Syndication Agent") and STANDARD FEDERAL BANK NA, as
documentation agent (the "Documentation Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders establish a
$175,000,000 revolving credit facility in favor of the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders, the Issuing Bank and the Swingline Lender, to the extent of their
respective Commitments as defined herein, are willing severally to establish the
requested revolving credit facility, letter of credit subfacility and the
swingline subfacility in favor of the Borrower;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders, the Administrative Agent,
the Issuing Bank and the Swingline Lender agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1. Definitions. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein
specified:
"Account Debtor" shall mean any Person who is obligated under an
Account.
"Accounts" shall mean, for any Person, all "accounts" (as defined in
the UCC) and all amounts payable to such Person in respect of Customer
Financings, now or hereafter owned or acquired by such Person or in which such
Person now or hereafter has or acquires any rights.
"Adjusted LIBO Rate" shall mean, with respect to each Interest
Period for a Eurocurrency Borrowing, the rate per annum obtained by dividing (a)
LIBOR for such Interest Period by (b) a percentage equal to 1.00 minus the
Eurocurrency Reserve Percentage.
"Administrative Questionnaire" shall mean, with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly completed by
such Lender.
"Affiliate" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person. For the purposes of
this definition, "Control" shall mean the power, directly or indirectly, either
to (a) vote ten percent (10%) or more of the securities having ordinary voting
power for the election of directors (or persons performing similar functions) of
a Person or (b) direct or cause the direction of the management and policies of
a Person, whether through the ability to exercise voting power, by control or
otherwise. The terms "Controlling", "Controlled by", and "under common Control
with" have the meanings correlative thereto.
"Aggregate Revolving Commitment Amount" shall mean the aggregate
principal amount of the Aggregate Revolving Commitments from time to time. On
the Closing Date, the Aggregate Revolving Commitment Amount equals $175,000,000.
"Aggregate Revolving Commitments" shall mean, collectively, all
Revolving Commitments of all Lenders at any time outstanding.
"Alternate Currency" shall mean any freely convertible, transferable
foreign currency available to all Lenders.
"Alternate Currency Letter of Credit" shall mean any letter of
credit issued in an Alternate Currency by the Issuing Bank for the account of
the Borrower pursuant to Section 2.22.
"Alternate Currency Loan" shall mean a Revolving Eurocurrency Loan
denominated in an Alternate Currency.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office, branch, affiliate or
correspondent of such Lender (or an Affiliate of such Lender) as such Lender may
from time to time designated by notice to the Administrative Agent and the
Borrower as the office by which its Loans of such Type are to be made and
maintained.
"Applicable Margin" shall mean, as of any date, with respect to
interest on all Revolving Loans and the Letter of Credit Fee, as applicable, a
percentage per annum determined by reference to the applicable Leverage Ratio
from time to time in effect as set forth on Schedule I; provided, that a change
in the Applicable Margin resulting from a change in the Leverage Ratio shall be
effective on the second Business Day after which the Borrower delivers the
financial statements required by Section 5.1(a) or (b) and the Compliance
Certificate required by Section 5.1(c); provided further, that if at any time
the Borrower shall have failed to deliver such financial statements and such
Compliance Certificate when so required, the Applicable Margin shall be at Level
I on Schedule I until such time as such financial statements and Compliance
Certificate are delivered, at which time the Applicable Margin shall be
determined as provided above. Notwithstanding the foregoing, the Applicable
Margin from the Closing Date until the financial statements and Compliance
Certificate for the Fiscal Quarter ending in January 2004 are delivered shall be
at Level I on Schedule I.
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"Applicable Percentage" shall mean, as of any date, with respect to
the Commitment Fee as of any date, a percentage per annum determined by
reference to the applicable Leverage Ratio from time to time in effect as set
forth on Schedule I; provided, that a change in the Applicable Percentage
resulting from a change in the Leverage Ratio shall be effective on the second
Business Day after which the Borrower delivers the financial statements required
by Section 5.1(a) or (b) and the Compliance Certificate required by Section
5.1(c); provided, further, that if at any time the Borrower shall have failed to
deliver such financial statements and such Compliance Certificate when so
required, the Applicable Percentage shall be at Level I as set forth on Schedule
I until such time as such financial statements and Compliance Certificate are
delivered, at which time the Applicable Percentage shall be determined as
provided above. Notwithstanding the foregoing, the Applicable Percentage for the
Commitment Fee from the Closing Date until the financial statements and
Compliance Certificate for the Fiscal Quarter ending in January 2004 are
required to be delivered shall be at Level I as set forth on Schedule I.
"Approved Fund" means any Person (other than a natural Person) that
is (or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business and that is administered or managed by (i) a Lender, (ii) an Affiliate
of a Lender or (iii) an entity or an Affiliate of an entity that administers or
manages a Lender.
"Asset Sale" shall have the meaning assigned to such term in Section
7.6.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit C attached hereto or any other form approved by
the Administrative Agent.
"Assuming Lender" shall have the meaning assigned to such term in
Section 2.23(d).
"Availability Period" shall mean the period from the Closing Date to
the Revolving Commitment Termination Date.
"Bank Account" shall have the meaning assigned to such term in
Section 5.10.
"Bank Account Control Agreement" shall mean each agreement among a
Loan Party, the Collateral Agent and a bank at which such Loan Party maintains
deposit accounts, granting "control" over such deposit accounts to the
Collateral Agent in a manner that perfects the Lien of the Collateral Agent
under the UCC.
"Base Rate" shall mean the higher of (a) the per annum rate which
the Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (b) the Federal Funds Rate, as
in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative
3
Agent's prime lending rate shall be effective from and including the date such
change is publicly announced as being effective.
"Blocked Accounts" shall have the meaning assigned to such term in
Section 5.10(a).
"Borrower Reimbursement Notice" shall have the meaning assigned to
such term in Section 2.22(d).
"Borrowing" shall mean a borrowing consisting of (a) Loans of the
same Class and Type, made, converted or continued on the same date and in the
case of Eurocurrency Loans, as to which a single Interest Period is in effect,
or (b) a Swingline Loan.
"Borrowing Availability" shall mean, at any time, the Borrowing
Limit less the Revolving Credit Exposure of all Lenders at such time.
"Borrowing Base" shall mean, at any time, the sum of (a) 85% of
Eligible Accounts, plus (b) 70% of Domestic Finished Equipment, plus (c) 45% of
Domestic Finished Replacement Parts, plus (d) 25% of Domestic Raw Materials,
plus (e) 55% of Domestic Used Equipment, plus (f) 35% of Domestic Rental Fleet
Equipment, minus (g) reserves for losses, expenses and liabilities as the
Administrative Agent shall determine are necessary in its reasonable credit
judgment based on the results of appraisals, field examinations and other
Collateral and Borrowing Base evaluations conducted by the Administrative Agent,
including without limitation, a $5,000,000 liquidation reserve as of the Closing
Date.
"Borrowing Base Certificate" shall mean a certificate of the chief
financial officer of the Borrower, substantially in the form of Exhibit E.
"Borrowing Limit" shall mean, at any time, the lesser of (a) the
Aggregate Revolving Commitment Amount at such time and (b) (i) the Borrowing
Base as reported in the Borrowing Base Certificate most recently delivered to
the Lenders pursuant to Section 3.1(b)(xiv) or Section 5.1(f), less (ii)
$10,000,000, less (iii) the amount outstanding under the Pari Passu Credit
Facility at such time, less (iv) the amount of the Defaulted Material Foreign
Indebtedness during any Material Foreign Indebtedness Cure Period, less (v) the
Swap Termination Value of the Citizens Interest Rate Hedge Agreement as of the
Business Day immediately preceding delivery of the most recently delivered
Borrowing Base Certificate pursuant to Section 5.1(f), less (vi) the Swap
Termination Value of the Tokyo Interest Rate Hedge Agreement as of the Business
Day immediately preceding delivery of the most recently delivered Borrowing Base
Certificate pursuant to Section 5.1(f).
"Business Day" shall mean any day other than (a) a Saturday, Sunday
or other day on which commercial banks in New York, New York are authorized or
required by law to close, (b) if such day relates to a Borrowing of, a payment
or prepayment of principal or interest on, a conversion of or into, or an
Interest Period for, a Eurocurrency Loan or a notice with respect to any of the
foregoing, (i) in a Currency other than Euros, any day on which dealings in the
applicable Currency are not carried on in the applicable interbank Eurocurrency
market in London, England and in the country of issue of the applicable
Currency, and (ii) in Euros, any day on which the Trans-European Automated
Real-time Gross settlement Express Transfer
4
system (commonly known as TARGET) is not open for settlement of payment in
Euros, and (c) in Euros and National Currency Unit, any day on which prime banks
in London, England that generally provide quotations for deposits denominated in
Euros and such National Currency Unit are not open for business.
"Calculation Date" means the last Business Day of each calendar
quarter.
"Capital Expenditures" shall mean for any period, without
duplication, (a) the additions to property, plant and equipment and other
capital expenditures of the Borrower and its Subsidiaries that are (or would be)
set forth on a consolidated statement of cash flows of the Borrower for such
period prepared in accordance with GAAP and (b) Capital Lease Obligations
incurred by the Borrower and its Subsidiaries during such period.
"Capital Lease Obligations" of any Person shall mean all obligations
of such Person to pay rent or other amounts under any Capital Lease, and the
amount of such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.
"Capital Leases" shall mean, as to any Person, any lease of any real
or personal property in respect of which the obligations of the lessee are
required, in accordance with GAAP, to be classified and accounted for as a
capital lease on the consolidated balance sheet of such Person.
"Capital Stock" of any Person shall mean any capital stock (or in
the case of a partnership or limited liability company, the partners' or
members' equivalent equity interest) of such Person, whether common or
preferred.
"Cayman Pledge Agreement" shall mean that certain Pledge Agreement,
dated as of the date hereof, executed by the Borrower and JLG International, in
favor of the Collateral Agent for the benefit of the Lenders, the lender under
the Pari Passu Credit Facility, Citizens Bank of Pennsylvania, The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch and any counterparties to Hedging
Transactions that are entered into to replace or refinance either the Tokyo
Interest Rate Hedge Agreement or the Citizens Interest Rate Hedge Agreement,
pursuant to which the Borrower shall pledge 66% of the general partnership and
limited partnership interests of JLG Investments, L.P., a Cayman Islands limited
partnership.
"Change in Control" shall mean the occurrence of one or more of the
following events: (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or "group" (within the meaning of the
Securities Exchange Act of 1934, as amended and the rules of the Securities and
Exchange Commission thereunder as in effect on the date hereof) of 30% or more
of the outstanding shares of the voting stock of the Borrower; or (b) occupation
of a majority of the seats (other than vacant seats) on the board of directors
of the Borrower by Persons who were neither (i) directors on the date hereof or
directors nominated by the board of directors of the Borrower or (ii) appointed
by directors on the date hereof or directors so nominated.
"Change in Law" shall mean (a) the adoption of any applicable law,
rule or regulation after the date of this Agreement, (b) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental
5
Authority after the date of this Agreement, or (c) compliance by any Lender (or
its Applicable Lending Office) or the Issuing Bank (or for purposes of Section
2.18(b), by such Lender's or the Issuing Bank's parent company, if applicable)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.
"Citizens Interest Rate Hedge Agreement" shall mean that certain
ISDA Master Agreement (including the Schedule thereto), dated as of June 6,
2003, pursuant to which the Borrower, certain of its Subsidiaries and Citizens
Bank of Pennsylvania entered into a Transaction (as such term is defined in the
Citizens Interest Rate Hedge Agreement) on June 6, 2003, in the notional amount
of $70,000,000 under the terms and conditions specified in the Citizens Swap
Transaction, as amended, restated, supplemented or otherwise modified from time
to time.
"Citizens Swap Transaction" shall mean that certain Confirmation (as
such term is defined in the Citizens Interest Rate Hedge Agreement) related to
the Citizens Interest Rate Hedge Agreement, as amended, restated, supplemented
or modified from time to time; provided, at no time shall the notional amount be
in excess of $70,000,000.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
or Swingline Loans and when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or a Swingline Commitment.
"Closing Date" shall mean the date on which the conditions precedent
set forth in Section 3.1 have been satisfied or waived in accordance with
Section 10.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended and
in effect from time to time.
"Collateral" shall mean all personal property of any Loan Party that
is the subject of a Lien granted pursuant to a Collateral Document to the
Collateral Agent for the benefit of (i) the Lenders to secure the whole or any
part of the Obligations or any Guarantee thereof, (ii) the lender under the Pari
Passu Credit Facility to secure the whole or any part of the obligations of any
of the Loan Parties under the Pari Passu Credit Facility, (iii) The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch to secure the whole or any part of the
obligations of any of the Loan Parties under the Tokyo Swap Transaction and (iv)
Citizens Bank of Pennsylvania to secure the whole or any part of the obligations
of any of the Loan Parties under the Citizens Swap Transaction.
"Collateral Access Agreements" shall mean all landlord waivers,
warehouseman agreements, bailee acknowledgments and customs brokers
acknowledgments executed by any Loan Party and a third party with possession of
any Collateral or leasing real property to such Loan Party at which Collateral
is located, delivered in connection herewith.
"Collateral Agent" shall mean SunTrust Bank, in its capacity as the
collateral agent for the Lenders, the lender providing the Pari Passu Credit
Facility, The Bank of Tokyo-Mitsubishi, Ltd., New York Branch and Citizens Bank
of Pennsylvania.
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"Collateral Documents" shall mean, collectively, the Security
Agreement, the Pledge Agreements, all Investment Control Agreements, all Bank
Account Control Agreements, all Copyright Security Agreements, all Patent
Security Agreements, all Trademark Security Agreements, the Perfection
Certificate, all Collateral Access Agreements, and all other instruments and
agreements now or hereafter securing the whole or any part of the Obligations or
any Guarantee thereof, all UCC financing statements, stock powers, and all other
documents, instruments, agreements and certificates executed and delivered by
any Loan Party to the Collateral Agent, the Administrative Agent and the Lenders
in connection with the foregoing.
"Commitment" shall mean a Revolving Commitment, a Swingline
Commitment or any combination thereof (as the context shall permit or require).
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.14(b).
"Compliance Certificate" shall mean a certificate from the chief
financial officer of the Borrower in the form of, and containing the
certifications set forth in, Exhibit 5.1(c).
"Consenting Lender" shall have the meaning assigned to such term in
Section 2.23(c).
"Consolidated" shall mean, when used with reference to financial
statements or financial statement items of the Borrower and its Subsidiaries,
such statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.
"Consolidated EBITDA" shall mean, for any period, an amount equal to
the sum of (a) Consolidated Net Income for such period, plus (b) to the extent
deducted in determining Consolidated Net Income, (i) Consolidated Interest
Expense for such period, (ii) income tax expense for such period, determined on
a consolidated basis in accordance with GAAP, (iii) depreciation and
amortization for such period, determined on a consolidated basis in accordance
with GAAP, (iv) all restructuring charges of the Borrower and its Consolidated
Subsidiaries taken during such period related to the OmniQuip Acquisition, of
which the aggregate amount of all cash charges that may be added back during the
term of this Agreement shall not exceed $20,000,000, and (v) non-cash expenses
of the Borrower and its Consolidated Subsidiaries for such period relating to
stock options or other stock-based compensation (other than non-cash expenses
relating to restricted share awards determined in accordance with past practice)
to the extent required to be expensed under applicable laws or regulations, plus
(c) an amount equal to (i) on or prior to July 31, 2003, $1,500,000, (ii) after
July 31, 2003 and on or prior the last day of the Fiscal Quarter ending in
October 2003, $1,125,000, (iii) after the end of the Fiscal Quarter ending in
October 2003 and on or prior to the last day of the Fiscal Quarter ending in
January 2004, $750,000, (iv) after the end of the Fiscal Quarter ending in
January 2004 and on or prior to the last day of the Fiscal Quarter ending in
April 2004, $375,000, and (v) $0 thereafter.
"Consolidated Fixed Charges" shall mean, for any period, the sum of
(a) Consolidated Interest Expense paid in cash during such period, plus (b)
dividends and distributions to holders of Capital Stock, warrants and related
instruments of the Borrower and its Consolidated Subsidiaries paid in cash
during such period, plus (c) scheduled principal
7
payments required to be made on all Indebtedness of the Borrower and its
Consolidated Subsidiaries (excluding payments with respect to the Senior
Unsecured Notes and the Senior Subordinated Notes, but including the portion of
rental expense that would be attributed to principal of the Borrower and its
Consolidated Subsidiaries for such period in respect of Synthetic Leases as if
such Synthetic Leases were Capital Leases) during such period.
"Consolidated Interest Expense" shall mean, for any period, the sum
of (a) total interest expense of the Borrower and its Consolidated Subsidiaries
for such period measured on a consolidated basis in accordance with GAAP,
including without limitation the interest component of any payments in respect
of Capital Leases, plus (b) the net amount payable (or minus the net amount
receivable) with respect to interest rate Hedging Obligations during such period
plus (c) the portion of rental expense that would be attributed to interest of
the Borrower and its Consolidated Subsidiaries for such period in respect of
Synthetic Leases as if such Synthetic Leases were Capital Leases.
"Consolidated Net Funded Debt" shall mean, as of any date, (a)
Consolidated Total Debt as of such date, less (b) cash or cash equivalents of
the Borrower and its Consolidated Subsidiaries as of such date in excess of
$10,000,000 to the extent maintained in domestic accounts in which the
Collateral Agent has a perfected security interest that has the highest priority
that can be obtained by perfecting such security interest under the UCC.
"Consolidated Net Funded Senior Debt" shall mean, as of any date,
(a) Consolidated Net Funded Debt as of such date, less (b) the outstanding
principal amount of the all Subordinated Debt as of such date, less (c) up to
$125,000,000 of the outstanding principal amount of the Senior Unsecured Notes
as of such date.
"Consolidated Net Income" shall mean, for any period, the net income
(or loss) of the Borrower and its Consolidated Subsidiaries for such period
measured on a consolidated basis in accordance with GAAP, but excluding
therefrom (to the extent otherwise included therein) (a) any extraordinary gains
or losses, (b) any non-cash gains attributable to write-ups of assets (but
including any non-cash losses attributable to write-downs of assets), (c) any
equity interest of the Borrower or any Subsidiary in the unremitted earnings of
any Person that is not a Subsidiary, and (d) any income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary or its assets are acquired by
the Borrower or any Subsidiary.
"Consolidated Tangible Net Worth" shall mean, as of any date, (a)
total shareholders' equity of the Borrower and its Consolidated Subsidiaries as
of such date, less (b) the net book amount of all assets of the Borrower and its
Consolidated Subsidiaries that would be classified as intangible assets on a
consolidated balance sheet of the Borrower as of such date.
"Consolidated Total Debt" shall mean, as of any date, the aggregate
amount of all Indebtedness (other than operating leases that are not Synthetic
Leases) of the Borrower and its Consolidated Subsidiaries as of such date;
provided that Indebtedness of the type described in clauses (c), (d), (e), (f)
and (l) of the definition of Indebtedness and clause (i) of the definition of
Indebtedness with respect to guaranties of Indebtedness of the type described in
clauses (c) and (e) of the definition thereof, shall, in each case, be
calculated as of the last day of the
8
immediately preceding Fiscal Quarter for which financial statements have been
delivered in accordance with Section 5.1.
"Contractual Currency" shall have the meaning assigned to such term
in Section 2.24(b).
"Contractual Obligation" of any Person shall mean any material
provision of any security issued by such Person or of any material agreement,
instrument or undertaking under which such Person is obligated or by which it or
any material portion of the property in which it has an interest is bound.
"Conversion Date" shall have the meaning assigned to such term in
Section 2.24 (b).
"Copyright" shall have the meaning assigned to such term in the
Security Agreement.
"Copyright Security Agreements" shall mean, collectively, the Grant
of Security Interest in Copyright Rights agreements executed by the Loan Parties
owning Copyrights or licenses of Copyrights in favor of the Collateral Agent, on
behalf of itself, and the Lenders, the lender under the Pari Passu Credit
Facility, Citizens Bank of Pennsylvania, The Bank of Tokyo-Mitsubishi, Ltd., New
York Branch and any counterparties to Hedging Transactions that are entered into
to replace or refinance either the Tokyo Interest Rate Hedge Agreement or the
Citizens Interest Rate Hedge Agreement.
"Currency" shall mean Dollars or any Alternate Currency.
"Customer Financings" shall mean all leases (including operating
leases, financing leases, and synthetic leases) and all conditional sale
agreements, pursuant to which the Borrower or any of its Subsidiaries leases or
conditionally sells new or used equipment either manufactured or remanufactured
by the Borrower or any of its Subsidiaries, other than (a) any open accounts
receivable from the sale of equipment or (b) Monetization Assets that are the
subject of a Monetization Transaction.
"Default" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"Default Interest" shall have the meaning assigned to such term in
Section 2.13(b).
"Defaulted Material Foreign Indebtedness" shall have the meaning
assigned to such term in Section 8.1(g).
"Determination Date" shall mean:
(a) in connection with any new Alternate Currency Loan or Obligation
relating to an Alternate Currency Letter of Credit, the Business Day which
is the earlier of the date such credit is extended or the date the
interest rate is set, as applicable;
9
(b) in connection with the continuation of a Borrowing into a new
Interest Period, the Business Day which is the earlier of the date such
Borrowing is continued or the date the rate is set, as applicable; or
(c) the date of any reduction of the Revolving Commitments pursuant
to the terms of Article II; and
(d) such additional dates, not more frequently than once a calendar
quarter if no Default has occurred, as may be determined by the
Administrative Agent.
"Dollar(s)" and the sign "$" shall mean lawful money of the United
States of America.
"Dollar Equivalent" shall mean, on any date, (i) with respect to any
amount denominated in Dollars, such amount and (ii) with respect to any amount
denominated in an Alternate Currency, the amount of Dollars that would be
required to purchase the amount of such Alternate Currency on such date based
upon the Exchange Rate as of the applicable Determination Date.
"Domestic Finished Equipment" shall mean Eligible Inventory
consisting of finished equipment, including but not limited to all finished
aerial work platforms, telehandlers and telescoping hydraulic excavators.
"Domestic Finished Replacement Parts" shall mean Eligible Inventory
consisting of finished replacement parts for equipment.
"Domestic Pledge Agreement" shall mean that certain Pledge
Agreement, dated as of the date hereof, executed by each Loan Party that owns
any Capital Stock of a Material Domestic Subsidiary, in favor of the Collateral
Agent for the benefit of the Lenders, the lender under the Pari Passu Credit
Facility, Citizens Bank of Pennsylvania, The Bank of Tokyo-Mitsubishi, Ltd., New
York Branch and any counterparties to Hedging Transactions that are entered into
to replace or refinance either the Tokyo Interest Rate Hedge Agreement or the
Citizens Interest Rate Hedge Agreement, pursuant to which such Loan Parties
shall pledge 66% of the Capital Stock of JLG International and 100% of the
Capital Stock of each other Material Domestic Subsidiary.
"Domestic Raw Material" shall mean Eligible Inventory consisting of
purchased raw materials and component inventories.
"Domestic Rental Fleet Equipment" shall mean Eligible Inventory
consisting of equipment rented by the Borrower or any of its Subsidiaries to
third parties.
"Domestic Subsidiary" shall mean each Subsidiary that is not a
Foreign Subsidiary.
"Domestic Used Equipment" shall mean Eligible Inventory consisting
of finished equipment that has been previously rented to third parties, taken in
trade from third parties,
10
purchased on the open market, remanufactured, reconditioned or otherwise
acquired in any manner.
"Eligible Accounts" shall mean all Accounts of the Loan Parties
other than any Account:
(a) that does not arise from the sale of goods, Customer Financings
or the performance of services by any Loan Party in the ordinary course of
its business;
(b) upon which (i) the right to receive payment is not absolute or
is contingent upon the fulfillment of any condition whatsoever, other than
customary conditions applicable to any Loan Party in connection with
Customer Financings, (ii) such Loan Party is not able to bring suit or
otherwise enforce its remedies against the Account Debtor through judicial
process or (iii) if the Account represents a progress billing consisting
of an invoice for goods sold or used or services rendered pursuant to a
contract under which the Account Debtor's obligation to pay that invoice
is subject to completion of further performance by such Loan Party under
such contract or is subject to the equitable lien of a surety bond issuer;
(c) which is subject to any defense, right of set-off or
counterclaim, but only to the extent of such defense, set-off or
counterclaim, unless such Account Debtor has entered into a written
agreement reasonably acceptable to the Administrative Agent to waive such
defense, set-off or counterclaim;
(d) (i) that is not a bona fide, valid and enforceable obligation of
the Account Debtor, (ii) with respect to which, in whole or in part, a
check, promissory note, draft, trade acceptance or other instrument for
the payment of money has been received, presented for payment and returned
uncollected for any reason or (iii) that is subject to any dispute
actually asserted in writing by the Account Debtor;
(e) that arises from a sale to any director, officer, other employee
or Affiliate of any Loan Party;
(f) that is the obligation of an Account Debtor that is the United
States government or a political subdivision thereof, or any department,
agency or instrumentality thereof unless the Loan Party, if necessary or
desirable, has complied with respect to such obligation with the Federal
Assignment of Claims Act of 1940, as amended, or the Financial
Administration Act (Canada), as amended, as applicable, with respect to
such obligation to the reasonable satisfaction of the Administrative
Agent;
(g) with respect to which an invoice has not been sent (including by
electronic transmission) to the applicable Account Debtor;
(h) that is not owned solely by the Loan Parties or that is subject
to any right, claim, interest or Lien of another Person, other than a Lien
in favor of the Collateral Agent and Permitted Encumbrances, including
without limitation all Monetization Assets;
11
(i) that arises with respect to goods which are delivered on a
cash-on-delivery basis or placed on consignment (it being understood and
agreed that an Account that arises in connection with a sale of such goods
by the consignee thereof shall not be deemed to be ineligible by reason of
this clause (i)) or other terms by reason of which the payment by the
Account Debtor may be conditional;
(j) that is not paid within ninety (90) days from its due date, that
is owed by an Account Debtor that has suspended its business, made a
general assignment for the benefit of creditors or failed to pay its debts
generally as they come due, or that has filed, or had filed against it and
had not been dismissed, a petition under any bankruptcy law or any other
federal, state or foreign receivership, insolvency or similar law or that
arises under any Customer Financing with respect to which any other
Accounts with respect to such Customer Financing is more than ninety (90)
days past due on the date of determination;
(k) that arises from any ▇▇▇▇-and-hold arrangement or other
arrangement for the sale of goods which remain in the possession or
control of the Borrower and its Subsidiaries;
(l) as to which the Administrative Agent does not have a
first-priority perfected security interest;
(m) that is the obligation of an Account Debtor if fifty percent
(50%) or more of the Dollar amount of all Accounts owing by that Account
Debtor are ineligible under clause (j) above or if such Account Debtor is
in default with respect to any Indebtedness owed by such Account Debtor to
the Borrower or any of its Subsidiaries;
(n) to the extent such Account is evidenced by a judgment;
(o) Accounts which, together with the other Accounts of a single
Account Debtor or its Affiliates owed to the Loan Parties, constitute more
than twenty percent (20%) of all otherwise Eligible Accounts (but the
portion of the Eligible Accounts not in excess of such percentage shall be
Eligible Accounts);
(p) that is the obligation of an Account Debtor located in a foreign
country, (other than Canada) unless payment thereof is assured by a letter
of credit assigned and delivered to the Administrative Agent, reasonably
satisfactory to the Administrative Agent as to form, amount and issuer;
(q) that represents interest payments or shipping, finance and
similar charges owing to the Borrower or any of its Subsidiaries;
(r) Accounts of JLG OmniQuip, Inc. and its Subsidiaries, until the
earlier of (i) such time as such Accounts have been audited with results
reasonably acceptable to the Administrative Agent or (ii) ninety (90) days
after the Closing Date; and
12
(s) with respect to which any of the representations, warranties,
covenants, and agreements contained in this Agreement or any Borrowing
Base Certificate are not true and correct in any material respect when
made or deemed made.
Notwithstanding anything contained herein to the contrary, the
Administrative Agent shall have the right from time to time to adjust the
foregoing eligibility standards in the exercise of its reasonable credit
judgment based on the results of appraisals, field examinations and other
Collateral and Borrowing Base evaluations conducted by the Administrative Agent.
Any adjustments to such eligibility standards by the Administrative Agent shall
be made by written notice to the Borrower setting forth in reasonable detail the
basis for such change, and shall become effective upon the earlier of (i) the
first Borrowing Base Certificate that is delivered after delivery of such notice
by the Administrative Agent and (ii) five (5) Business Days after the date of
receipt by the Borrower of such written notice, and in the case of clause (ii)
such adjustments to the eligibility standards shall be applied to the Borrowing
Base Certificate most recently delivered pursuant to Section 5.1(f).
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a natural
Person) approved by the Administrative Agent, the Issuing Bank, and unless (i)
such Person is taking delivery of an assignment in connection with physical
settlement of a credit derivatives transaction or (ii) an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed).
"Eligible Inventory" shall mean all Inventory of the Loan Parties,
other than Inventory that:
(a) consists of work in progress;
(b) is not owned solely by one or more Loan Parties or that is
subject to any right, claim, interest or Lien of another Person, other
than a Lien in favor of the Collateral Agent and other than Permitted
Encumbrances;
(c) is (i) not located in the continental United States or Canada,
(ii) not located on real property owned by a Loan Party unless, if such
property is leased from or under the control of a third party, such third
party has executed and delivered to the Collateral Agent a Collateral
Access Agreement in form and substance reasonably acceptable to the
Collateral Agent, waiving any lien or other rights that such person may
hold in regard to the property of the Loan Parties located on such
premises and containing such other provisions as the Collateral Agent may
reasonably require;
(d) is in transit, other than (i) Inventory in transit from a
supplier to a Loan Party that is not in the control of a customs broker
and is fully insured and covered by a ▇▇▇▇ of lading reflecting that title
to such inventory has passed to such Loan Party, (ii) Inventory in transit
from a supplier to a Loan Party that is in the control of a customs broker
and is fully insured and covered by a ▇▇▇▇ of lading reflecting that title
to such inventory has passed to such Loan Party; provided, that such
customs broker, has executed and delivered to the Administrative Agent a
Collateral Access Agreement in
13
form and substance reasonably acceptable to the Administrative Agent,
waiving any lien or other rights that such person may hold in regard to
the property of the Loan Parties located on such premises and containing
such other provisions as the Administrative Agent may reasonably require,
(iii) Inventory in transit between facilities owned, leased or used by one
or more Loan Parties, so long as Inventory would not otherwise be excluded
from the Borrowing Base pursuant to clause (c) above;
(e) is covered by a negotiable document of title, unless such
document and evidence of acceptable insurance covering such Inventory has
been delivered to the Administrative Agent with all necessary
endorsements;
(f) is obsolete, unsalable, or unfit for further processing;
(g) consists of goods that are not held for sale, lease or rental in
the ordinary course of the Loan Parties' business;
(h) does not meet in all material respects all material standards
imposed by any Governmental Authority having regulatory authority over
such Loan Parties, including with respect to its production, acquisition
or importation (as the case may be);
(i) is placed on consignment with another Person or is held by a
Loan Party on consignment from another Person;
(j) is produced in violation of the Fair Labor Standards Act and
subject to the "hot goods" provisions contained in 29 U.S.C. Section 215
or any successor statute or section;
(k) with respect to which any of the representations, warranties,
covenants, and agreements contained in the Loan Documents are not true and
correct in all material respects when made or deemed made;
(l) Inventory of JLG OmniQuip Inc. and its Subsidiaries, until the
earlier of (i) such time as such Inventory has been audited with results
reasonably acceptable to the Administrative Agent or (ii) ninety (90) days
after the Closing Date; and
(m) is subject to any licensing, patent, royalty, trademark, trade
name or copyright agreement with any third parties, unless the Loan
Party's interest in any such license or other appropriate agreement is
subject to the Security Agreement or otherwise assigned to the
Administrative Agent.
Notwithstanding anything contained herein to the contrary, the
Administrative Agent shall have the right from time to time to adjust the
foregoing eligibility standards in the exercise of its reasonable credit
judgment based on the results of appraisals, field examinations and other
Collateral and Borrowing Base evaluations conducted by the Administrative Agent.
Any adjustments to such eligibility standards by the Administrative Agent shall
be made by written notice to the Borrower setting forth in reasonable detail the
basis for such change, and shall become effective upon the earlier of (i) the
first Borrowing Base Certificate that is delivered after delivery of such notice
by the Administrative Agent and (ii) five (5) Business Days after the date of
receipt by the Borrower of such written notice, and in the case of clause
14
(ii) such adjustments to the eligibility standards shall be applied to the
Borrowing Base Certificate most recently delivered pursuant to Section 5.1(f).
"EMU" shall mean economic and monetary union as contemplated in the
Treaty on European Union.
"EMU Legislation" shall mean 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.
"Environmental Laws" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments or injunctions promulgated or entered
into by or with any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters.
"Environmental Liability" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) any exposure to any
Hazardous Materials, (d) the Release or threatened Release of any Hazardous
Materials or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) with respect to a Plan that does not satisfy the
requirements for a standard termination under Section 4041(b) of ERISA, the
incurrence by the Borrower or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (e) the receipt
by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator
appointed by the PBGC of any notice relating to an intention to terminate any
Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence
by the Borrower or any of its ERISA Affiliates of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g)
the receipt by the Borrower or any ERISA Affiliate of
15
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Euro" shall mean the single currency to which participating member
states are converting.
"Eurocurrency" when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, bears
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Eurocurrency Borrowing Minimum" shall mean, for any Eurocurrency
Loan, (a) in the case of a Borrowing denominated in Dollars, $3,000,000 and
integral multiples of $500,000; and in the case of a Borrowing denominated in
Euros or any other Alternate Currency, such minimum amounts and multiples in
excess thereof, the Dollar Equivalent of which shall be approximately equal to
$3,000,000 and integral multiples of $500,000, respectively, as determined by
the Administrative Agent from time to time.
"Eurocurrency Reserve Percentage" shall mean, with respect to any
Currency, the aggregate of the maximum reserve, liquid asset or similar,
percentages (including, without limitation, any emergency, supplemental, special
or other marginal reserves) expressed as a decimal (rounded upwards to the next
1/100th of 1%) in effect on any day to which the Administrative Agent is subject
with respect to the Adjusted LIBO Rate pursuant to regulations issued by any
Governmental Authority of the United States or of the jurisdiction of such
Currency or any jurisdiction in which Loans in such Currency are made to which
banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans in such Currency or by reference to
which interest rates applicable to loans in such Currency are determined. Such
liquid assets or similar percentages shall include those imposed pursuant to
Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under Regulation D or any other applicable law, rule or
regulation. The Eurocurrency Reserve Percentage shall be adjusted automatically
on and as of the effective date of any change in any reserve percentage.
"Euro unit" shall mean the currency unit of the Euro.
"Event of Default" shall have the meaning assigned to such term in
Article VIII.
"Exchange Rate" means on any day, with respect any Alternate
Currency, the offered rate at which such currency may be exchanged into Dollars,
as set forth at approximately 11:00 a.m. on such day on the Reuters NFX Page (or
if such page is not available, or the rate does not appear on such page, the
comparable page on the Telerate or Bloomberg Service) for such currency. In the
event that such rate does not appear on the applicable page of any such
services, the "Exchange Rate" shall be determined by reference to such other
publicly available services for displaying exchange rates as may be agreed upon
by the Administrative Agent and the Borrower, or, in the absence of such
agreement, such Exchange Rate shall instead be the offered spot rate of exchange
of the Administrative Agent or, if the Administrative Agent shall so determine,
one of its affiliates in the market where its foreign currency exchange
operations in
16
respect of such currency are then being conducted, at or about 10:00 a.m., local
time, on such date for the purchase of Dollars for delivery two Business Days
later; provided that if at the time of any such determination, for any reason,
no such spot rate is being quoted, the Administrative Agent, after consultation
with the Borrower, may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest
error.
"Excluded Taxes" shall mean with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America or any political subdivision or taxing authority thereof or therein,
or by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other
jurisdiction in which any Lender is located, and (c) in the case of a Foreign
Lender, any withholding tax that (i) is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, (ii) is imposed on amounts payable to such Foreign Lender at any time
that such Foreign Lender designates a new lending office, other than Taxes that
have accrued prior to the designation of such lending office that are otherwise
not Excluded Taxes, or (iii) is attributable to such Foreign Lender's failure to
comply with Section 2.20(e).
"Existing Credit Agreement" shall mean that certain Amended and
Restated Credit Agreement, dated as of June 17, 2002, by and among the Borrower,
certain of its Subsidiaries signatory thereto, the lenders signatory thereto,
SunTrust Bank, as administrative agent and documentation agent and BankOne,
Michigan as syndication agent, as heretofore amended, restated, supplemented or
otherwise modified from time to time.
"Existing Letters of Credit" shall mean those certain letters of
credit listed on Schedule II issued by the Issuing Bank pursuant to the Existing
Credit Agreement for the account of the Borrower.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published by
the Federal Reserve Bank of New York on the next succeeding Business Day or if
such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th
of 1% of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
"Fee Letter" shall mean that certain fee letter, dated as of July
30, 2003, executed by SunTrust Capital Markets, Inc. and SunTrust Bank and
accepted by Borrower.
"First-Tier Foreign Subsidiary" shall mean any Foreign Subsidiary
that is owned directly in whole or in part by the Borrower or any Domestic
Subsidiary.
17
"Fiscal Month" shall mean any fiscal month of the Borrower.
"Fiscal Quarter" shall mean any fiscal quarter of the Borrower.
"Fiscal Year" shall mean any fiscal year of the Borrower.
"Fixed Charge Coverage Ratio" shall mean, as of any date, the ratio
of (a) (i) Consolidated EBITDA, less (ii) income tax expense of the Borrower and
its Consolidated Subsidiaries paid in cash (net of any tax refunds received in
cash, to the extent of such income tax expense), less (iii) the actual amount
paid by the Borrower and its Consolidated Subsidiaries in cash on account of
Capital Expenditures to (b) Consolidated Fixed Charges, in each case measured
for the four consecutive Fiscal Quarters ending on such date.
"Foreign Lender" shall mean any Lender that is not a United States
person under Section 7701(a)(3) of the Code.
"Foreign Subsidiary" shall mean any Subsidiary that is organized
under the laws of a jurisdiction other than one of the fifty states of the
United States or the District of Columbia.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of Section
1.3.
"Governmental Authority" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other monetary obligation of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (d) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guarantee (other than a MOSA) 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 Guarantee is made and (b) the maximum
amount for which such Person may be liable pursuant to the terms of the
instrument embodying such Guarantee, unless such primary obligation and the
maximum amount for which such Person may be liable are not stated or
determinable, in which case the amount of such Guarantee shall be the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to
18
perform thereunder) as determined by such Person in good faith. The amount of
any MOSA of the Borrower or any of its Subsidiaries shall be deemed to be the
lesser of (i) the capitalized amount of all customer financings covered by such
MOSA, as determined in accordance with GAAP, and (ii) if any, the stated
limitation of the obligations of the Borrower 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 the Borrower and its Consolidated
Subsidiaries. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Obligations" of any Person shall mean any and all
obligations of such Person, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired under (a) any and all Hedging
Transactions, (b) any and all cancellations, buy backs, reversals, terminations
or assignments of any Hedging Transactions, and (c) any and all extensions,
renewals, refinancings and replacements of any Hedging Transactions and any and
all substitutions for any Hedging Transactions.
"Hedging Transaction" of any Person shall mean any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between such Person that is a rate swap, basis swap, forward rate
transaction, commodity swap, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collateral transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"Indebtedness" of any Person shall mean, without duplication, (a)
obligations of such Person for borrowed money, (b) obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (c) Maximum
Loss Exposure, (d) non-contingent obligations under any MOSA, (e) obligations of
such Person in respect of the deferred purchase price of property or services
(other than accounts payables incurred in the ordinary course of business), (f)
obligations of such Person under any conditional sale or other title retention
agreement(s) relating to property acquired by such Person, (g) capitalized
amount of all obligations of such Person, as lessee, under Capital Leases, (h)
obligations, contingent or otherwise, of such Person in respect of letters of
credit (whether or not drawn), acceptances or similar extensions of credit, (i)
Guarantees by such Person of the type of indebtedness described in clauses (a)
through (e) above, (j) indebtedness of a third party secured by any lien on
property owned by such Person, whether or not such indebtedness has been assumed
by such Person, (k) obligations of such Person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any common stock of such
Person, and (l) Operating Lease Value of operating leases.
19
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Information Memorandum" shall mean the Confidential Information
Memorandum dated August 2003 relating to the Borrower and the transactions
contemplated by this Agreement and the other Loan Documents.
"Intercreditor Agreement" shall mean that certain Intercreditor
Agreement, dated as of the date hereof, by and among the Collateral Agent, the
Lenders, the lender providing the Pari Passu Credit Facility, The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch, Citizens Bank of Pennsylvania and the
Borrower.
"Interest Period" shall mean with respect to any Eurocurrency
Borrowing, a period of one, two, three or six months; provided, that:
(a) the initial Interest Period for such Borrowing shall commence on
the date of such Borrowing (including the date of any conversion from a
Borrowing of another Type), and each Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(b) if any Interest Period would otherwise end on a day other than a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless such Business Day falls in another
calendar month, in which case such Interest Period would end on the next
preceding Business Day;
(c) any Interest Period which 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; and
(d) no Interest Period may extend beyond the Revolving Commitment
Termination Date.
"Inventory" shall mean, for any Person, all "inventory" (as defined
in the UCC) now or hereafter owned or acquired by such Person or in which such
Person now or hereafter has or acquires any rights, wherever located, and, in
any event, shall mean and include equipment, machinery, inventory, merchandise,
goods and other personal property which are held by or on behalf of such Person
for sale or lease or are furnished or are to be furnished under a contract of
service, or which constitute raw materials, work in process or materials used or
consumed or to be used or consumed in such Person's business or in the
processing, production, packaging, promotion, delivery or shipping of the same,
including other supplies.
"Investment Control Agreement" shall mean an agreement among a Loan
Party, the Collateral Agent and (a) the issuer of uncertificated securities with
respect to uncertificated securities in the name of any Loan Party that are not
held in a securities account in the name of any Loan Party, (b) a securities
intermediary with respect to securities, whether certificated or uncertificated,
securities entitlements and other financial assets held in a securities account
in the name of any Loan Party, or (c) a futures commission merchant or clearing
house, as applicable, with respect to commodity accounts and commodity contracts
held by any Loan Party, in the
20
form of Exhibit F attached hereto or otherwise in form and substance reasonably
acceptable to the Collateral Agent.
"Investments" shall have the meaning assigned to such term in
Section 7.4.
"Issuing Bank" shall mean SunTrust Bank in its capacity as the
issuer of Letters of Credit pursuant to Section 2.22.
"JLG International" shall mean JLG International LLC, a Pennsylvania
limited liability company.
"LC Commitment" shall mean that portion of the Aggregate Revolving
Commitment Amount that may be used by the Borrower for the issuance of Letters
of Credit, the aggregate LC Exposure of which shall not exceed $25,000,000.
"LC Disbursement" shall mean a payment made by the Issuing Bank to a
beneficiary pursuant to a Letter of Credit.
"LC Documents" shall mean the Letters of Credit and all
applications, agreements and instruments relating to the Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit denominated in U.S. Dollars
at such time, plus (b) the Dollar Equivalent of the aggregate undrawn amount of
all outstanding Alternate Currency Letters of Credit, plus (c) the aggregate
amount of all LC Disbursements (including the Dollar Equivalent of any LC
Disbursements with respect to Alternate Currency Letters of Credit) that have
not been reimbursed by or on behalf of the Borrower at such time. The LC
Exposure of any Lender shall be its Pro Rata Share of the total LC Exposure at
such time.
"Lenders" shall have the meaning assigned to such term in the
opening paragraph of this Agreement and shall include, where appropriate, the
Swingline Lender.
"Letter of Credit" shall mean any Existing Letter of Credit and any
stand-by or documentary letter of credit issued pursuant to Section 2.22 by the
Issuing Bank for the account of the Borrower.
"Letter of Credit Fee" shall have the meaning assigned to such term
in Section 2.14(c).
"Leverage Ratio" shall mean, as of any date, the ratio of (a)
Consolidated Net Funded Debt as of such date to (b) Consolidated EBITDA measured
for the four consecutive Fiscal Quarters ending on the last day of the Fiscal
Quarter for which the most recent financial statements required under Section
5.1(a) or (b) have been delivered.
"LIBOR" shall mean, for any Interest Period with respect to any
Eurocurrency Loan in any Currency, the British Bankers' Association Interest
Settlement Rate per annum for deposits in such Currency for a period equal to
such Interest Period appearing on the display designated as Page 3750 on the Dow
▇▇▇▇▇ Markets Service (or such other page on that service
21
or such other service designated by the British Bankers' Association for the
display of such Association's Interest Settlement Rates for Dollar deposits) as
of 11:00 a.m. (London, England time) on the day that is two Business Days prior
to the first day of such Interest Period or if such Page 3750 is unavailable for
any reason at such time, the rate which appears on the Reuters Screen ISDA Page
as of such date and such time; provided, that if the Administrative Agent
determines that the relevant foregoing sources are unavailable for the relevant
Interest Period, LIBOR shall mean the rate of interest determined by the
Administrative Agent to be the average (rounded upward, if necessary, to the
nearest 1/100th of 1%) of the rates per annum at which deposits in such Currency
are offered to the Administrative Agent two (2) Business Days preceding the
first day of such Interest Period by leading banks in the London interbank
market as of 10:00 a.m. for delivery on the first day of such Interest Period,
for the number of days comprised therein and in an amount comparable to the
amount of the Eurocurrency Loan of the Administrative Agent.
"Lien" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), encumbrance, hypothecation, assignment for security,
or other arrangement (including any conditional sale or other title retention
agreement and any capital lease) having substantially the same practical effect
as any of the foregoing.
"Liquidation Currency" shall have the meaning assigned to such term
in Section 2.24(c).
"Loan Documents" shall mean, collectively, this Agreement, the Notes
(if any), the LC Documents, the Subsidiary Guaranty Agreement, the Intercreditor
Agreement, the Collateral Documents, all Notices of Borrowing, all Notices of
Conversion/Continuation, all Borrowing Base Certificates, all Compliance
Certificates, the Fee Letter, all other instruments, agreements, documents and
writings delivered to the Administrative Agent or Collateral Agent pursuant to
Section 3.1 hereof, all amendments, waiver and modifications of the foregoing,
and all instruments, agreements, documents and writings delivered in connection
with any amendments, waivers, or modifications of the foregoing.
"Loan Parties" shall mean the Borrower and the Subsidiary Loan
Parties.
"Loans" shall mean all Revolving Loans and Swingline Loans, in the
aggregate or any of them, as the context shall require.
"Master Agreement" shall mean any agreement substantially in the
form of the Master Agreement (Multicurrency-Cross Border) published by the
International Swaps and Derivatives Association, Inc, together with all
schedules and credit support annexes thereto.
"Material Adverse Effect" shall mean, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singularly or in conjunction with any other event or
events, act or acts, condition or conditions, occurrence or occurrences whether
or not related, that results in a material adverse change in, or a material
adverse effect on, (a) the business, results of operations, financial condition,
assets, liabilities or prospects of the Borrower and its Subsidiaries taken as a
whole, (b) the ability of the Loan Parties to perform any of their
22
respective obligations under the Loan Documents that are material to the rights
or interests of the Lenders, (c) the rights and remedies of the Administrative
Agent, the Collateral Agent, the Issuing Bank, Swingline Lender and the Lenders
under any of the Loan Documents, or (d) the legality, validity or enforceability
of any of the Loan Documents.
"Material Domestic Subsidiaries" shall mean all Domestic
Subsidiaries, other than (i) Monetization Subsidiaries and (ii) those Domestic
Subsidiaries that in the aggregate (a) have total assets less than five percent
(5%) of the total assets of the Borrower and its Consolidated Subsidiaries
measured on a consolidated basis in accordance with GAAP as of the last day of
the most recently ended Fiscal Quarter for which financial statements have been
delivered pursuant to Section 5.1(a) or (b), or (b) have Consolidated EBITDA
that is less than five percent (5%) of the Consolidated EBITDA of the Borrower
and its Consolidated Subsidiaries measured on a consolidated basis in accordance
with GAAP for the four Fiscal Quarter period ending on the last day of the
Fiscal Quarter for which the most recent financial statements required under
Section 5.1(a) or (b) have been delivered, but in any event including each
Domestic Subsidiary (other than any Monetization Subsidiary) that has total
assets or Consolidated EBITDA in an amount that equals or exceeds (x) two and
one-half percent (2.5%) of the total assets of the Borrower and its Consolidated
Subsidiaries measured on a consolidated basis in accordance with GAAP as of the
last day of the most recently ended Fiscal Quarter for which financial
statements have been delivered pursuant to Section 5.1(a) or (b), or (y) two and
one-half percent (2.5%) of the Consolidated EBITDA of the Borrower and its
Consolidated Subsidiaries measured on a consolidated basis in accordance with
GAAP for the four Fiscal Quarter period ending on the last day of the Fiscal
Quarter for which the most recent financial statements required under Section
5.1(a) or (b) have been delivered.
"Material First-Tier Foreign Subsidiaries" shall mean all First-Tier
Foreign Subsidiaries other than (i) Monetization Subsidiaries and (ii) those
First-Tier Foreign Subsidiaries that in the aggregate (a) have total assets less
than five percent (5%) of the total assets of the Borrower and its Consolidated
Subsidiaries measured on a consolidated basis in accordance with GAAP as of the
last day of the most recently ended Fiscal Quarter for which financial
statements have been delivered pursuant to Section 5.1(a) or (b), or (b) have
Consolidated EBITDA that is less than five percent (5%) of the Consolidated
EBITDA of the Borrower and its Consolidated Subsidiaries measured on a
consolidated basis in accordance with GAAP for the four Fiscal Quarter period
ending on the last day of the Fiscal Quarter for which the most recent financial
statements required under Section 5.1(a) or (b) have been delivered, but in any
event including each Foreign Subsidiary that has total assets or Consolidated
EBITDA in an amount that equals or exceeds (x) two and one-half percent (2.5%)
of the total assets of the Borrower and its Consolidated Subsidiaries measured
on a consolidated basis as of the last day of the most recently ended Fiscal
Quarter for which financial statements have been delivered pursuant to Section
5.1(a) or (b), or (y) two and one-half percent (2.5%) of the Consolidated EBITDA
of the Borrower and its Consolidated Subsidiaries measured on a consolidated
basis in accordance with GAAP for the four Fiscal Quarter period ending on the
last day of the Fiscal Quarter for which the most recent financial statements
required under Section 5.1(a) or (b) have been delivered.
"Material Foreign Indebtedness Cure Period" shall have the meaning
assigned to such term in Section 8.1(g).
23
"Material Foreign Subsidiaries" shall mean all Foreign Subsidiaries
other than (i) Monetization Subsidiaries and (ii) those Foreign Subsidiaries
that in the aggregate (a) have total assets less than five percent (5%) of the
total assets of the Borrower and its Consolidated Subsidiaries measured on a
consolidated basis in accordance with GAAP as of the last day of the most
recently ended Fiscal Quarter for which financial statements have been delivered
pursuant to Section 5.1(a) or (b), or (b) have Consolidated EBITDA that is less
than five percent (5%) of the Consolidated EBITDA of the Borrower and its
Consolidated Subsidiaries measured on a consolidated basis in accordance with
GAAP for the four Fiscal Quarter period ending on the last day of the Fiscal
Quarter for which the most recent financial statements required under Section
5.1(a) or (b) have been delivered, but in any event including each First-Tier
Foreign Subsidiary that has total assets or Consolidated EBITDA in an amount
that equals or exceeds (x) two and one-half percent (2.5%) of the total assets
of the Borrower and its Consolidated Subsidiaries measured on a consolidated
basis as of the last day of the most recently ended Fiscal Quarter for which
financial statements have been delivered pursuant to Section 5.1(a) or (b), or
(y) two and one-half percent (2.5%) of the Consolidated EBITDA of the Borrower
and its Consolidated Subsidiaries measured on a consolidated basis in accordance
with GAAP for the four Fiscal Quarter period ending on the last day of the
Fiscal Quarter for which the most recent financial statements required under
Section 5.1(a) or (b) have been delivered.
"Material Indebtedness" shall mean (i) Indebtedness (other than
Revolving Credit Exposure) of any one or all of the Loan Parties and their
Subsidiaries, individually or in an aggregate principal amount exceeding
$10,000,000, (ii) Indebtedness under the Pari Passu Credit Facility, (iii)
Hedging Obligations in an amount exceeding $10,000,000, and (iv) whether or not
exceeding $10,000,000, Hedging Obligations under the Citizens Interest Rate
Hedge Agreement and the Tokyo Interest Rate Hedge Agreement. For purposes of
determining the amount of attributed Indebtedness from Hedging Obligations, the
"amount" of any Hedging Obligations at any time shall be the Net ▇▇▇▇-to-Market
Exposure of such Hedging Obligations.
"Maximum Loss Exposure" shall mean, as of any date, the estimated
maximum amount of contractual loss that the Borrower or any of its Subsidiaries
may incur under Monetization Transactions or securitization transactions as a
result of payment defaults by obligors with respect to assets either monetized
or securitized, as determined by the Borrower in good faith.
"Monetization Assets" shall mean (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
Borrower and its Subsidiaries, (ii) equipment and equipment residuals relating
to any of the foregoing, (iii) related contractual rights, guarantees, letters
of credits, Liens, insurance proceeds, collections and other related assets and
(iv) proceeds of all of the foregoing.
"Monetization Subsidiary" shall mean a direct or indirect Subsidiary
formed in connection with a Monetization Transaction.
"Monetization Transaction" shall mean any transaction or series of
transactions pursuant to which the Borrower or any of its Subsidiaries sells,
conveys, assigns, pledges or otherwise transfers for value any Monetization
Assets to any Monetization Subsidiary or to any
24
other Person that is not an Affiliate of the Borrower, or creates a Lien in
Monetization Assets in favor of any Monetization Subsidiary or any other Person
that is not an Affiliate of the Borrower to secure Indebtedness incurred in
connection with such Monetization Transaction.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"MOSA" shall mean a mandate-of-sale agreement, remarketing
agreement, cooperation agreement, deed of undertaking, guaranty or similar
agreement or instrument entered into by the Borrower or any of its Subsidiaries
as a credit enhancement of financing obtained by customers of the Borrower or
any of its Subsidiaries to finance the acquisition by such customers of
equipment manufactured by the Borrower or any of its Subsidiaries.
"Multiemployer Plan" shall have the meaning assigned to such term in
Section 4001(a)(3) of ERISA.
"National Currency Unit" shall mean the unit of currency (other than
a Euro Unit) of a participating member state.
"Net Cash Proceeds" shall mean the excess, if any, of (i) the
aggregate amount received in cash (including any cash received by way of
deferred payment pursuant to a note receivable or otherwise, but only as and
when such cash is so received) in connection with any Asset Sale or issuance of
equity securities, over (ii) the sum of (A) reasonable out-of-pocket expenses
and fees incurred with respect to legal, investment banking, brokerage, advisor
and accounting and other professional fees, sales commissions and disbursements
and all reasonable fees, expenses and charges, in each case actually incurred in
connection with such Asset Sale or issuance of equity securities and paid to
non-Affiliates, (B) all income, transfer or other taxes payable in connection
with such Asset Sale or issuance of equity securities, whether actually paid or
estimated by the Borrower to be payable in connection with such Asset Sale or
issuance of equity securities, (C) the amount of any Indebtedness which is
secured by any such asset or which is required to be, and is, repaid in
connection with such Asset Sale (other than Indebtedness hereunder) and (D)
reserves required to be established in accordance with GAAP or the definitive
agreements relating to such Asset Sale with respect to such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations.
"Net ▇▇▇▇-to-Market Exposure" of any Person shall mean, as of any
date of determination with respect to any Hedging Obligation, the excess (if
any) of all unrealized losses over all unrealized profits of such Person arising
from such Hedging Obligation. "Unrealized losses" shall mean the fair market
value of the cost to such Person of replacing the Hedging Transaction giving
rise to such Hedging Obligation as of the date of determination (assuming the
Hedging Transaction were to be terminated as of that date), and "unrealized
profits" means the fair market value of the gain to such Person of replacing
such Hedging Transaction as of the date of determination (assuming such Hedging
Transaction were to be terminated as of that date).
"Non-Consenting Lender" shall have the meaning assigned to such term
in Section 2.23 (c).
25
"Notes" shall mean, collectively, the Revolving Credit Notes and the
Swingline Note.
"Notices of Borrowing" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Loan.
"Notice of Conversion/Continuation" shall mean the notice given by
the Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.7(b).
"Notice of Revolving Borrowing" shall have the meaning assigned to
such term in Section 2.3.
"Notice of Swingline Loan" shall have the meaning assigned to such
term in Section 2.5.
"Obligations" shall mean all amounts owing by the Borrower to the
Administrative Agent, the Issuing Bank or any Lender (including the Swingline
Lender) pursuant to or in connection with this Agreement or any other Loan
Document, including without limitation, all principal, interest (including any
interest accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses (including all
reasonable, out-of-pocket fees and expenses of counsel to the Administrative
Agent, the Issuing Bank and any Lender (including the Swingline Lender) incurred
pursuant to this Agreement or any other Loan Document), whether direct or
indirect, absolute or contingent, liquidated or unliquidated, now existing or
hereafter arising hereunder or thereunder, together with all extensions,
modifications, renewals, refinancings and replacements thereof.
"OmniQuip Acquisition" shall mean the acquisition of the Lull and
Sky Trak brands and related assets from Trak International, Inc. and its
Subsidiaries and the assumption of liabilities related thereto pursuant to the
OmniQuip Acquisition Agreement.
"OmniQuip Acquisition Agreement" shall mean that certain Purchase
and Sale Agreement, dated as of July 7, 2003, among Trak International, Inc., as
seller, Textron Inc., as guarantor, JLG Acquisition Corporation, as Purchaser
and Borrower.
"Operating Lease Value" shall mean, as of any date, the amount of
all scheduled payments in the nature of rent required to be made by the Borrower
or any of its Subsidiaries, as lessee, under the terms of all operating leases
during the remaining fixed term thereof, discounted to present value using a
discount rate of 10%.
"OSHA" shall mean the Occupational Safety and Health Act of 1970, as
amended from time to time, and any successor statute.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment
26
made hereunder or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement or any other Loan Document.
"Pari Passu Credit Facility" shall mean a revolving credit facility
provided to the Borrower by Manufacturers and Traders Trust Company, a Lender or
another financial institution reasonably acceptable to the Collateral Agent.
"Participant" shall have the meaning assigned to such term in
Section 10.4(d).
"Participating Member State" shall mean each state so described in
any EMU Legislation.
"Patent" shall have the meaning assigned to such term in the
Security Agreement.
"Patent Security Agreements" shall mean, collectively, the Grant of
Security Interest in Patent Rights agreements executed by the Loan Parties
owning Patents or licenses of Patents in favor of the Collateral Agent, on
behalf of itself and the Lenders, the lender under the Pari Passu Credit
Facility, Citizens Bank of Pennsylvania, The Bank of Tokyo-Mitsubishi, Ltd., New
York Branch and any counterparties to Hedging Transactions that are entered into
to replace or refinance either the Tokyo Interest Rate Hedge Agreement or the
Citizens Interest Rate Hedge Agreement.
"Payment Office" shall mean the office of the Administrative Agent
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
location as to which the Administrative Agent shall have given written notice to
the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA, and any successor entity performing similar functions.
"Perfection Certificate" shall have the meaning assigned to such
term in the Security Agreement.
"Permitted Encumbrances" shall mean:
(a) Liens imposed by law for taxes, assessments and other
governmental charges not yet due or as to which the period of grace related
thereto, if any, has not expired or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(b) Liens of landlords or mortgagees of landlords, carriers,
warehousemen, processors, mechanics, materialmen, customs brokers,
broker/dealers and similar Liens arising by operation of law or pursuant to the
terms of real property leases or other contracts in the ordinary course of
business for amounts not yet due or not overdue for a period of more than thirty
(30) days (or any longer grace period available under the terms of the
applicable underlying obligation) or which are being contested in good faith by
appropriate proceedings and with respect to which reserves are being maintained
to the extent required in accordance with GAAP;
27
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, and statutory or contractual bankers' liens
or monies held in bank accounts, in each case in the ordinary course of
business;
(e) judgment and attachment Liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal proceeding
that are currently being contested in good faith by appropriate proceedings and
with respect to which reserves are being maintained to the extent required in
accordance with GAAP; and
(f) minor imperfections in title to real property and easements,
zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from the value of any
property that is material to, or materially interfere with the ordinary conduct
of business of the Borrower and its Subsidiaries, taken as a whole;
provided, that the term "Permitted Encumbrances" shall not include
any Lien securing Indebtedness for borrowed money.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States (or
by any agency thereof to the extent such obligations are backed by the
full faith and credit of the United States), in each case maturing within
one year from the date of acquisition thereof;
(b) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or ▇▇▇▇▇'▇ and in either case maturing within
six months from the date of acquisition thereof;
(c) certificates of deposit, bankers' acceptances and time deposits
maturing within one hundred eighty (180) days of the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States or any state thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) repurchase agreements that are secured by collateral having a
value of at least 102% of such repurchase agreement, where such collateral
(i) is held by a third party custodian, (ii) has a term of not more than
thirty (30) days for securities described in clause (a) above and (ii) is
entered into with a financial institution satisfying the criteria
described in clause (c) above;
28
(e) corporate debt instruments maturing within 180 days and having a
rating of at least A by S&P or A2 by ▇▇▇▇▇'▇; and
(f) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (a) through (e) above.
"Permitted MOSAs" shall mean MOSAs relating to up to $125,000,000 of
customer financings.
"Person" shall mean any individual, partnership, firm, corporation,
S-corporation, association, joint venture, limited liability company, trust or
other entity, or any Governmental Authority.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreements" shall mean, collectively, the Domestic Pledge
Agreement, the Cayman Pledge Agreement and all other pledge agreements, share
charges and similar instruments executed by a Loan Party in connection herewith
on or after the Closing Date.
"Projections" shall mean the Borrower's forecasted consolidated (a)
balance sheets, (b) profit and loss statements, and (c) cash flow statements,
all prepared in accordance with GAAP consistently applied, together with
appropriate supporting details.
"Pro Rata Share" shall mean with respect to any Revolving Commitment
of any Lender at any time, as well as with respect to a Lender's portion of any
Revolving Loans, Revolving Borrowings, Letters of Credit, the Borrowing Limit
and payments related to the foregoing under the Revolving Commitments, a
percentage, the numerator of which shall be such Lender's Revolving Commitment
(or if the Revolving Commitments have been terminated or expired or the Loans
have been declared to be due and payable, such Lender's Revolving Credit
Exposure), and the denominator of which shall be the sum of all Revolving
Commitments of all Lenders (or if the Revolving Commitments have been terminated
or expired or the Loans have been declared to be due and payable, the Revolving
Credit Exposure of all Lenders).
"Received Currency" shall have the meaning assigned to such term in
Section 2.24(c).
"Redenominate" means the conversion of each Alternate Currency Loan
from one Alternate Currency into Dollars or another Alternate Currency.
"Refinancing" shall mean the repayment in full by Borrower of its
obligations under the Existing Credit Agreement on the Closing Date.
29
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time, and
any successor regulations.
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" shall mean any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Required Lenders" shall mean, at any time, Lenders holding at least
51% of the aggregate outstanding Commitments at such time or if no Commitments
are outstanding, then Lenders holding at least 51% of the Revolving Credit
Exposure of all Lenders.
"Requirement of Law" for any Person shall mean the articles or
certificate of incorporation, bylaws, partnership certificate and agreement, or
limited liability company certificate of organization and agreement, as the case
may be, and other organizational and governing documents of such Person, and any
law, treaty, rule or regulation, or determination of a Governmental Authority,
in each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Reset Date" shall have the meaning assigned to such term in Section
2.24(e)(i).
"Responsible Officer" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer, the
treasurer or a vice president of the Borrower or such other representative of
the Borrower as may be designated in writing by any one of the foregoing with
the consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed); and, with respect to the Compliance Certificate only, the
chief financial officer of the Borrower.
"Restricted Payment" shall have the meaning assigned to such term in
Section 7.5.
"Revolving Commitment" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Letters of Credit and Swingline Loans in an aggregate principal
amount not exceeding the amount set forth with respect to such Lender on Annex
I, or in the case of a Person becoming a Lender after the Closing Date through
an assignment of an existing Revolving Commitment, the amount of the assigned
"Revolving Commitment" as provided in the Assignment and Acceptance executed by
such Person as an assignee, as the same may be increased or deceased pursuant to
terms hereof.
"Revolving Commitment Termination Date" shall mean the earliest of
(a) September 23, 2006, as such date may be extended pursuant to Section 2.23,
(b) the date on which the Revolving Commitments are terminated pursuant to
Section 2.8 and (c) the date on
30
which all amounts outstanding under this Agreement have been declared or have
automatically become due and payable (whether by acceleration or otherwise).
"Revolving Credit Exposure" shall mean, with respect to any Lender
at any time, the sum of (a) the Dollar Equivalent of the outstanding principal
amount of such Lender's Revolving Loans, (b) the LC Exposure and (c) the
Swingline Exposure at such time.
"Revolving Credit Note" shall mean a promissory note of the Borrower
payable to the order of a Lender in the principal amount of such Lender's
Revolving Commitment, in substantially the form of Exhibit A.
"Revolving Loan" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrower under its Revolving Commitment, which may
either be a Base Rate Loan or a Eurocurrency Loan, and which shall include
Alternate Currency Loans.
"Security Agreement" shall mean that certain Security Agreement,
dated as of the date hereof, executed by the Loan Parties in favor of the
Collateral Agent for the benefit of the Lenders, the lender providing the Pari
Passu Credit Facility, Citizens Bank of Pennsylvania, The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch and any counterparties to Hedging
Transactions that are entered into to replace or refinance either the Tokyo
Interest Rate Hedge Agreement or the Citizens Interest Rate Hedge Agreement and
each other security agreement executed from time to time in connection herewith.
"S&P" shall mean Standard & Poor's, a Division of the ▇▇▇▇▇▇-▇▇▇▇
Companies.
"Senior Leverage Ratio" shall mean, as of any date, the ratio of (a)
Consolidated Net Funded Senior Debt as of such date to (b) Consolidated EBITDA
measured for the four consecutive Fiscal Quarters ending on the last day of the
Fiscal Quarter for which the most recent financial statements required under
Section 5.1(a) or (b) have been delivered.
"Senior Subordinated Notes" shall mean those certain 8 3/8% JLG
Industries, Inc. Senior Subordinated Notes due 2012.
"Senior Unsecured Notes" shall mean those certain 8 1/4% JLG
Industries, Inc. Senior Unsecured Notes due in 2008.
"Subordinated Debt" shall mean (a) the Senior Subordinated Notes and
(b) any Indebtedness of the Borrower or any Subsidiary (i) that is expressly
subordinated to Obligations on terms reasonably satisfactory to the
Administrative Agent and the Required Lenders, and (ii) that is evidenced by an
indenture or other similar agreement in form and substance reasonably
satisfactory to the Administrative Agent.
"Subordinated Debt Documents" shall mean any indenture, agreement or
similar instrument governing any Subordinated Debt.
"Subsidiary" shall mean, with respect to any Person (the "parent"),
any corporation, partnership, joint venture, limited liability company,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated
31
financial statements if such financial statements were prepared in accordance
with GAAP as of such date, as well as any other corporation, partnership, joint
venture, limited liability company, association or other entity of which
securities or other ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power, or in the case of a partnership,
more than 50% of the general partnership interests are, as of such date, owned,
controlled or held by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent. Unless otherwise
indicated, all references to "Subsidiary" hereunder shall mean a Subsidiary of
the Borrower.
"Subsidiary Guaranty Agreement" shall mean the Subsidiary Guaranty
Agreement, dated as of the date hereof and substantially in the form of Exhibit
D, made by the Subsidiary Loan Parties in favor of the Collateral Agent for the
benefit of the Lenders.
"Subsidiary Guaranty Supplement" shall mean each supplement
substantially in the form of Annex I to the Subsidiary Guaranty Agreement
executed and delivered by a Material Domestic Subsidiary of the Borrower after
the Closing Date.
"Subsidiary Loan Party" shall mean any Subsidiary that guarantees
the Obligations from time to time.
"Swap Termination Value" shall mean (a) for the Citizens Interest
Rate Hedge Agreement, on any date of determination, an amount reasonably
determined by the Administrative Agent equal to the amount, if any, that would
be payable by Borrower or any of its Subsidiaries to its counterparty in
accordance with the terms of such agreement, as if (i) the Citizens Interest
Rate Hedge Agreement was being terminated early on such date of determination as
a result of an "Event of Default" (as defined therein), and (ii) the
Administrative Agent was the party determining such payment amount (with the
Administrative Agent making such determination pursuant to the provisions of the
applicable Master Agreement); and (b) for the Tokyo Interest Rate Hedge
Agreement, on any date of determination, an amount reasonably determined by the
Administrative Agent equal to the amount, if any, that would be payable by
Borrower or any of its Subsidiaries to its counterparty in accordance with the
terms of such agreement, as if (i) the Tokyo Interest Rate Hedge Agreement was
being terminated early on such date of determination as a result of an "Event of
Default" (as defined therein), and (ii) the Administrative Agent was the party
determining such payment amount (with the Administrative Agent making such
determination pursuant to the provisions of the applicable Master Agreement).
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $15,000,000.
"Swingline Exposure" shall mean, with respect to each Lender,
without duplication, the principal amount of the Swingline Loans in respect of
which such Lender is legally obligated either to make a Base Rate Loan or to
purchase a participation in accordance with Section 2.5, which shall equal such
Lender's Pro Rata Share of all outstanding Swingline Loans.
32
"Swingline Lender" shall mean SunTrust Bank.
"Swingline Loan" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
"Swingline Note" shall mean the promissory note of the Borrower
payable to the order of the Swingline Lender in the principal amount of the
Swingline Commitment, substantially the form of Exhibit B.
"Swingline Rate" shall mean the rate as offered by the
Administrative Agent and accepted by the Borrower.
"Synthetic Lease" means (a) a lease transaction under which the
parties intend that (i) the lease will be treated as an "operating lease" by the
lessee pursuant to Statement of Financial Accounting Standards No. 13, as
amended and (ii) the lessee will be entitled to various tax and other benefits
ordinarily available to owners (as opposed to lessees) of like property; or (b)
those leases identified on Schedule III hereto.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Tokyo Interest Rate Hedge Agreement" shall mean that certain ISDA
Master Agreement (including the Schedule thereto), dated as of July 14, 2003,
pursuant to which the Borrower, certain of its Subsidiaries and The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch entered into a Transaction (as such term
is defined in the Tokyo Interest Rate Hedge Agreement) on July 14, 2003, in the
notional amount of $62,500,000 under the terms and conditions specified in the
Tokyo Swap Transaction, as amended, restated, supplemented or otherwise modified
from time to time.
"Tokyo Swap Transaction" shall mean that certain Confirmation (as
such term is defined in the Tokyo Interest Rate Hedge Agreement) related to the
Tokyo Interest Rate Hedge Agreement, as amended, restated, supplemented or
modified from time to time; provided, at no time shall the notional amount be in
excess of $62,500,000.
"Trademark" shall have the meaning assigned to such term in the
Security Agreement.
"Trademark Security Agreements" shall mean, collectively, the Grant
of Security Interest in Trademark Rights agreements executed by the Loan Parties
owning Trademarks or licenses of Trademarks in favor of the Collateral Agent, on
behalf of itself and the Lenders, the lender under the Pari Passu Credit
Facility, Citizens Bank of Pennsylvania, The Bank of Tokyo-Mitsubishi, Ltd., New
York Branch and any counterparties to Hedging Transactions that are entered into
to replace or refinance either the Tokyo Interest Rate Hedge Agreement or the
Citizens Interest Rate Hedge Agreement.
"Treaty on European Union" shall mean the Treaty of Rome of March
25, 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty
(which was signed at
▇▇
▇▇▇▇▇▇▇▇▇▇ on February 7, 1992, and came into force on November 1, 1993), as
amended from time to time.
"Type", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"UCC" shall mean the Uniform Commercial Code as in effect from time
to time in the State of New York.
"Uniform Customs" shall have the meaning assigned to such term in
Section 2.22(a).
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2. Classifications of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g. a
"Revolving Loan") or by Type (e.g. a "Eurocurrency Loan" or "Base Rate Loan") or
by Class and Type (e.g. "Revolving Eurocurrency Loan"). Borrowings also may be
classified and referred to by Class (e.g. "Revolving Borrowing") or by Type
(e.g. "Eurocurrency Borrowing") or by Class and Type (e.g. " Revolving
Eurocurrency Borrowing").
Section 1.3. Accounting Terms and Determination. Unless otherwise
defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent with the most recent audited consolidated financial statement of the
Borrower delivered pursuant to Section 5.1(a); provided, that if the Borrower
notifies the Administrative Agent that the Borrower wishes to amend any covenant
in Article VI to eliminate the effect of any change in GAAP on the operation of
such covenant (or if the Administrative Agent notifies the Borrower that the
Required Lenders wish to amend Article VI for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Lenders.
Section 1.4. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall". In
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the word "to" means "to but
excluding". Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, restated,
34
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
permitted assigns but shall not be deemed to include the Subsidiaries of such
Person unless express reference is made to such Subsidiaries, (iii) the words
"hereof", "herein" and "hereunder" and words of similar import shall be
construed to refer to this Agreement as a whole and not to any particular
provision hereof, (iv) all references to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles, Sections, Exhibits and
Schedules to this Agreement and (v) all references to a specific time shall be
construed to refer to the time in the city and state of the Administrative
Agent's principal office, unless otherwise indicated. Unless otherwise
specified, all references herein to times of day shall be references to New
York, New York time. Unless otherwise specified, all terms defined under the UCC
shall have the meanings assigned thereunder for purposes of the Loan Documents.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1. General Description of Facilities. Subject to and upon
the terms and conditions herein set forth, (i) the Lenders hereby establish in
favor of the Borrower a revolving credit facility pursuant to which each Lender
severally agrees (to the extent of such Lender's Revolving Commitment) to make
Revolving Loans to the Borrower in accordance with Section 2.2, (ii) the Issuing
Bank agrees to issue Letters of Credit in accordance with Section 2.22, (iii)
the Swingline Lender agrees to make Swingline Loans in accordance with Section
2.4, and (iv) each Lender agrees to purchase a participation interest in the
Letters of Credit (including, without limitation, the Existing Letters of
Credit) and the Swingline Loans pursuant to the terms and conditions hereof.
Section 2.2. Revolving Loans. Subject to the terms and conditions
set forth herein, each Lender severally agrees to make Revolving Loans, ratably
in proportion to its Pro Rata Share, to the Borrower, from time to time during
the Availability Period, in an aggregate principal amount outstanding at any
time that will not result in (a) such Lender's Revolving Credit Exposure
exceeding such Lender's Pro Rata Share of the Borrowing Limit, or (b) the
aggregate Revolving Credit Exposures of all Lenders exceeding the Borrowing
Limit. During the Availability Period, the Borrower shall be entitled to borrow,
prepay and reborrow Revolving Loans in accordance with the terms and conditions
of this Agreement; provided, that the Borrower may not borrow or reborrow should
there exist a Default or Event of Default.
Section 2.3. Procedure for Revolving Borrowings. The Borrower shall
give the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of each Revolving Borrowing substantially in the form of
Exhibit 2.3 attached hereto (a "Notice of Revolving Borrowing") (x) prior to
11:00 a.m. on the requested date of each Base Rate Borrowing, (y) prior to 11:00
a.m. three (3) Business Days prior to the requested date of each Eurocurrency
Borrowing denominated in Dollars and (z) prior to 11:00 a.m. four (4) Business
Days prior to the requested date of each Eurocurrency Borrowing denominated in
Alternate Currencies. Each Notice of Revolving Borrowing shall be irrevocable
(except as permitted by the last sentence of Section 2.16) and shall specify:
(i) the aggregate principal amount of such
35
Borrowing, (ii) the date of such Borrowing (which shall be a Business Day),
(iii) the Type of such Revolving Loan comprising such Borrowing, (iv) in the
case of a Eurocurrency Borrowing, (A) the duration of the initial Interest
Period applicable thereto (subject to the provisions of the definition of
Interest Period), and (B) the Currency applicable thereto and (v) the account of
the Borrower to which the proceeds of the Revolving Loan should be credited.
Each Revolving Borrowing shall consist entirely of Base Rate Loans or
Eurocurrency Loans, as the Borrower may request. Each Base Rate Loan shall be
made in Dollars. Each Eurocurrency Loan shall be made in Dollars or an Alternate
Currency, as the Borrower may request. The aggregate principal amount of each
Eurocurrency Borrowing shall be not less than the Eurocurrency Borrowing
Minimum, and the aggregate principal amount of each Base Rate Borrowing shall
not be less than $1,000,000 or a larger multiple of $100,000. At no time shall
the total number of Eurocurrency Borrowings outstanding at any time exceed eight
(8). Promptly following the receipt of a Notice of Revolving Borrowing in
accordance herewith, the Administrative Agent shall advise each Lender of the
details thereof and the amount of such Lender's Revolving Loan to be made as
part of the requested Revolving Borrowing.
Section 2.4. Swingline Commitment. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower, from time to time during the Availability Period, in an
aggregate principal amount outstanding at any time not to exceed the lesser of
(i) the Swingline Commitment then in effect, and (ii) the Borrowing
Availability. The Borrower shall be entitled to borrow, repay and reborrow
Swingline Loans in accordance with the terms and conditions of this Agreement.
Section 2.5. Procedure for Swingline Loans. (a) The Borrower shall
give the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of each Swingline Loan substantially in the form of
Exhibit 2.5 attached hereto ("Notice of Swingline Loan") prior to 11:00 a.m. on
the requested date of each Swingline Loan. Each Notice of Swingline Loan shall
be irrevocable and shall specify: (i) the principal amount of such Swingline
Loan, (ii) the date of such Swingline Loan (which shall be a Business Day) and
(iii) the account of the Borrower to which the proceeds of such Swingline Loan
should be credited. Each Swingline Loan shall be made in Dollars. The
Administrative Agent will promptly advise the Swingline Lender of each Notice of
Swingline Loan. Each Swingline Loan shall accrue interest at the Swingline Rate
for an interest period as agreed between the Borrower and the Swingline Lender.
The Swingline Lender will make the proceeds of each Swingline Loan available to
the Borrower in Dollars in immediately available funds at the account specified
by the Borrower in the applicable Notice of Swingline Loan not later than 2:00
p.m. on the requested date of such Swingline Loan.
(b) The Swingline Lender, at any time and from time to time in its
sole discretion, may, on behalf of the Borrower (which hereby irrevocably
authorizes and directs the Swingline Lender to act on its behalf), give a Notice
of Revolving Borrowing to the Administrative Agent requesting the Lenders to
make Base Rate Loans in an amount equal to the unpaid principal amount of any
Swingline Loan. Each Lender will make the proceeds of its Base Rate Loan
available to the Administrative Agent for the account of the Swingline Lender in
accordance with Section 2.6, which will be used solely for the repayment of such
Swingline Loan.
36
(c) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender (other than the
Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that
such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds,
the amount of its participating interest to the Administrative Agent for the
account of the Swingline Lender. If such Swingline Loan bears interest at a rate
other than the Base Rate, such Swingline Loan shall automatically become a Base
Rate Loan on the effective date of any such participation and interest shall
become payable on demand.
(d) Each Lender's obligation to make a Base Rate Loan pursuant to
Section 2.5(b) or to purchase the participating interests pursuant to Section
2.5(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any set-off, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender's Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or would reasonably
be expected to have a Material Adverse Effect, (iv) any breach of this Agreement
or any other Loan Document by the Borrower, the Administrative Agent or any
Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof (i) at the
Federal Funds Rate until the second Business Day after such demand and (ii) at
the Base Rate at all times thereafter. Until such time as such Lender makes its
required payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its Loans and
any other amounts due to it hereunder, to the Swingline Lender to fund the
amount of such Lender's participation interest in such Swingline Loans that such
Lender failed to fund pursuant to this Section, until such amount has been
purchased in full.
Section 2.6. Funding of Borrowings.
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in immediately available
funds to the Administrative Agent at the Payment Office by 2:00 p.m. with
respect to Base Rate Loans and 11:00 a.m. with respect to all Eurocurrency
Loans; provided that the Swingline Loans will be made as set forth in Section
2.5. The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts that it receives, in like funds by the close of
business on such proposed date, to an account maintained by the Borrower with
the Administrative Agent or at the Borrower's option, by effecting a wire
transfer of such amounts to an account designated by the Borrower to the
Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any
Lender prior to 5:00 p.m. one (1) Business Day prior to the date of a Borrowing
in which such Lender is to
37
participate that such Lender will not make available to the Administrative Agent
such Lender's share of such Borrowing, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on such
date, and notwithstanding anything to the contrary in Section 2.6(a) above, the
Administrative Agent, in reliance on such assumption, may make available to the
Borrower on such date a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender on the
date of such Borrowing, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender together with interest at
the Federal Funds Rate until the second Business Day after such demand and
thereafter at the Base Rate. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the Borrower, and the Borrower shall
promptly pay such corresponding amount to the Administrative Agent together with
interest at the rate specified for such Borrowing. Nothing in this subsection
shall be deemed to relieve any Lender from its obligation to fund its Pro Rata
Share of any Borrowing hereunder or to prejudice any rights which the Borrower
may have against any Lender as a result of any default by such Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the
basis of their respective Pro Rata Shares. No Lender shall be responsible for
any default by any other Lender in its obligations hereunder, and each Lender
shall be obligated to make its Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans hereunder.
Section 2.7. Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the case of a Eurocurrency Borrowing,
shall have an initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing into a different
Type or to continue such Borrowing, and in the case of a Eurocurrency Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding Loans comprising such Borrowing on the basis of their
Pro Rata Shares, and the Loans comprising each such portion shall be considered
a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
give the Administrative Agent prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing substantially in the form of
Exhibit 2.7 attached hereto (a "Notice of Conversion/Continuation") that is to
be converted or continued, as the case may be, (x) prior to 11:00 a.m. on the
requested date of a conversion into a Base Rate Borrowing, (y) prior to 11:00
a.m. three (3) Business Days prior to a continuation of or conversion into a
Eurocurrency Borrowing denominated in Dollars and (z) prior to 11:00 a.m. four
(4) Business Days prior to the Eurocurrency Borrowing denominated in Alternate
Currencies. Each such Notice of Conversion/Continuation shall be irrevocable and
shall specify (i) the Borrowing to which such Notice of Conversion/Continuation
applies and if different options are being elected with respect to different
portions thereof, the portions thereof that are to be allocated to each
resulting Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) shall be specified for each resulting Borrowing); (ii)
the effective date of the election made pursuant to such Notice of
Conversion/Continuation, which shall be a Business Day; (iii) whether the
38
resulting Borrowing is to be a Base Rate Borrowing or a Eurocurrency Borrowing;
and (iv) if the resulting Borrowing is to be a Eurocurrency Borrowing, (A) the
Interest Period applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of "Interest Period" and (B)
the Currency applicable thereto or Dollars, as the case may be. If any such
Notice of Conversion/Continuation requests a Eurocurrency Borrowing but does not
specify an Interest Period or a Currency, the Borrower shall be deemed to have
selected an Interest Period of one month and a Currency of Dollars. The
principal amount of any resulting Borrowing shall satisfy the minimum borrowing
amount for Eurocurrency Borrowings and Base Rate Borrowings set forth in Section
2.3.
(c) If, on the expiration of any Interest Period in respect of any
Eurocurrency Borrowing, the Borrower shall have failed to deliver a Notice of
Conversion/Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. Upon the occurrence and during the continuation of an
Event of Default, (i) each Eurocurrency Loan will automatically, on the last day
of the then existing Interest Period therefor, convert to a Base Rate Loan, and
(ii) the obligation of the Lenders to fund Loans in Alternate Currencies and to
make, continue or convert Loans into Eurocurrency Loans shall be suspended. No
conversion of any Eurocurrency Loans shall be permitted except on the last day
of the Interest Period in respect thereof unless the Borrower delivers the
payments required pursuant to Section 2.19 in connection with such conversion.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
Section 2.8. Optional Reduction and Termination of Commitments.
(a) Unless previously terminated, all Revolving Commitments
(including the LC Commitments and the Swingline Commitment) shall terminate on
the Revolving Commitment Termination Date.
(b) Upon at least three (3) Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent
(which notice shall be irrevocable), the Borrower may reduce the Aggregate
Revolving Commitments in part or terminate the Aggregate Revolving Commitments
in whole, without premium or penalty, but with all amounts required under
Section 2.19; provided, that (i) any partial reduction shall apply to reduce
proportionately and permanently the Revolving Commitment of each Lender, (ii)
any partial reduction pursuant to this Section 2.8 shall be in an amount of at
least $5,000,000 and any larger multiple of $1,000,000, and (iii) no such
reduction shall be permitted which would reduce the Aggregate Revolving
Commitment Amount to an amount less than the aggregate Revolving Credit Exposure
of all Lenders.
Section 2.9. Repayment of Loans.
(a) The outstanding principal amount of all Revolving Loans shall be
due and payable (together with accrued and unpaid interest thereon) on the
Revolving Commitment Termination Date.
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(b) The principal amount of each Swingline Loan shall be due and
payable (together with accrued and unpaid interest thereon) on the earlier of
(i) the last day of the interest period applicable to such Swingline Loan and
(ii) the Revolving Commitment Termination Date.
Section 2.10. Evidence of Indebtedness. Each Lender shall maintain
in accordance with its usual practice appropriate records evidencing the
Indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable thereon and paid to such Lender from time to time under this Agreement.
The Administrative Agent shall maintain appropriate records in which shall be
recorded (i) the Revolving Commitment of each Lender, (ii) the amount of each
Loan made hereunder by each Lender, the Class and Type thereof, the Interest
Period and interest rate applicable thereto and the Currency in which such Loan
is denominated, (iii) the date of each continuation thereof pursuant to Section
2.7, (iv) the date of each conversion of all or a portion thereof to another
Type pursuant to Section 2.7, (v) the date and amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder in respect of such Loans and (vi) both the date and amount of
any sum received by the Administrative Agent hereunder from the Borrower in
respect of the Loans and each Lender's Pro Rata Share thereof. The entries made
in such records shall be prima facie evidence of the existence and amounts of
the obligations of the Borrower therein recorded; provided, that the failure or
delay of any Lender or the Administrative Agent in maintaining or making entries
into any such record or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans (both principal and unpaid accrued
interest) of such Lender in accordance with the terms of this Agreement
Section 2.11. Optional Prepayments. The Borrower shall have the
right at any time and from time to time to prepay any Borrowing, in whole or in
part, without premium or penalty, by giving irrevocable written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent no
later than (i) in the case of prepayment of any Eurocurrency Borrowing, 11:00
a.m. not less than three (3) Business Days prior to any such prepayment and (ii)
in the case of any prepayment of any Base Rate Borrowing or any Swingline Loans,
prior to 11:00 a.m. on the date of such prepayment. Each such notice shall be
irrevocable and shall specify the proposed date of such prepayment and the
principal amount of each Borrowing or portion thereof to be prepaid. Upon
receipt of any such notice, the Administrative Agent shall promptly notify each
affected Lender of the contents thereof and of such Lender's Pro Rata Shares of
any such prepayment. If such notice is given, the aggregate amount specified in
such notice shall be due and payable on the date designated in such notice,
together with accrued and unpaid interest to such date on the amount so prepaid
in accordance with Section 2.13(d); provided, that if a Eurocurrency Borrowing
is prepaid on a date other than the last day of an Interest Period applicable
thereto, the Borrower shall also pay all amounts required pursuant to Section
2.19. Each partial prepayment of any Loan (other than a Swingline Loan) shall be
in an amount of at least $1,000,000 and integral multiples of $1,000,000. Each
prepayment of a Borrowing shall be applied ratably to the Loans comprising such
Borrowing.
Section 2.12. Mandatory Prepayments.
(a) If at any time the Revolving Credit Exposure of all Lenders
exceeds the Borrowing Limit, the Borrower shall promptly repay the Revolving
Credit Exposure in an amount
40
equal to such excess, together with all accrued and unpaid interest on such
excess amount and any amounts due under Section 2.13; provided, that if the
Borrower fails to comply with Section 5.1(g) on any Business Day, the Pari Passu
Credit Facility shall be deemed to be fully funded on such Business Day for
purposes of this Section 2.12. Each prepayment shall be first applied to the
Swingline Loans, to the full extent thereof, second applied to the Revolving
Base Rate Loans to the full extent thereof, third applied to Revolving
Eurocurrency Loans to the full extent thereof; and fourth held by the
Administrative Agent as cash collateral for the outstanding LC Exposure in
accordance with Section 2.22(g); provided that if no Event of Default has
occurred and is continuing, any payments to be applied to Revolving Eurocurrency
Loans shall be held in a segregated cash collateral account at SunTrust Bank,
and the Administrative Agent may apply such cash collateral to repayment of each
Revolving Eurocurrency Loan upon the earlier of (i) the date an Event of Default
occurs and is continuing and (ii) the last day of an Interest Period applicable
to such Revolving Eurocurrency Loan. All such payments to the Lenders pursuant
to this Section 2.12(a) in respect of the Loans specified herein shall be made
in accordance with the Lenders' Pro Rata Shares of such Loans.
(b) Within three (3) Business Days of the receipt by the Borrower or
any of its Subsidiaries of the Net Cash Proceeds of any Asset Sales by the
Borrower or such Subsidiary (excluding Asset Sales permitted in clauses (a)
through (d), (f) and (h)(i) of Section 7.6), the Borrower shall prepay the Loans
and the obligations under the Pari Passu Credit Facility on a pro rata basis
based on the outstanding principal amounts under the Pari Passu Credit Facility
and the outstanding principal amount of Loans as of the date that is one
Business Day prior to the payment date in an amount equal to the Net Cash
Proceeds received by the Borrower or any of its Subsidiaries.
(c) If the Borrower or any of its Subsidiaries issues any equity
securities (other than equity securities issued by a Subsidiary to a Loan
Party), then no later than three (3) Business Days following the date of receipt
of the Net Cash Proceeds thereof, the Borrower shall prepay the Loans in an
amount equal to fifty (50%) of the Net Cash Proceeds received by the Borrower or
any of its Subsidiaries.
(d) Any prepayments made by the Borrower pursuant to Sections
2.12(b) or (c) above shall be applied as follows: first, to Administrative
Agent's fees and reimbursable expenses then due and payable pursuant to any of
the Loan Documents; second, to all other fees and reimbursable expenses of the
Lenders and the Issuing Bank then due and payable pursuant to any of the Loan
Documents, pro rata to the Lenders and the Issuing Bank based on their
respective Pro Rata Shares of such expenses; third, to interest then due and
payable on the Loans made to the Borrower, pro rata to the Lenders based on
their respective Revolving Commitments; fourth, to the principal balance of the
Swingline Loans, until the same shall have been paid in full, to the Swingline
Lender; and fifth, to the principal balance of the Revolving Loans, until the
same shall have been paid in full, pro rata to the Lenders based on their
respective Revolving Commitments. If a Default or Event of Default has occurred
and is continuing, any remaining proceeds shall be applied to provide cash
collateral for any outstanding LC Exposure in the manner and to the extent set
forth in Section 2.22(g). The Revolving Commitments of the Lenders shall not be
permanently reduced by the amount of any prepayments made pursuant to clauses
fourth and fifth above or the penultimate sentence of Section 2.12(a).
41
Section 2.13. Interest on Loans.
(a) The Borrower shall pay interest on each Base Rate Loan at the
Base Rate in effect from time to time and on each Eurocurrency Loan at the
Adjusted LIBO Rate for the applicable Interest Period in effect for such Loan,
plus, in each case, the Applicable Margin in effect from time to time.
(b) The Borrower shall pay interest on each Swingline Loan at the
Swingline Rate in effect from time to time.
(c) While an Event of Default exists (after giving effect to any
applicable notice and cure periods) or after acceleration, at the election of
the Required Lenders, the Borrower shall pay interest ("Default Interest") (i)
with respect to all Eurocurrency Loans, at the rate otherwise applicable for the
then-current Interest Period, plus an additional 2% per annum until the last day
of such Interest Period, (ii) with respect to all Base Rate Loans and all
Eurocurrency Borrowings for which a Notice of Conversion/Continuation has not
been delivered at the expiration of an Interest Period as provided for in
Section 2.7, at the Base Rate, plus the Applicable Margin, plus an additional 2%
per annum, (iii) with respect to all Swingline Loans, at the Swingline Rate,
plus an additional 2% per annum and (iv) with respect to all other Obligations
hereunder (other than Loans), at the Base Rate, plus the Applicable Margin, plus
an additional 2% per annum.
(d) Interest on the principal amount of all Loans shall accrue from
and including the date such Loans are made to but excluding the date of any
repayment thereof. Interest on all outstanding Base Rate Loans and Swingline
Loans shall be payable quarterly in arrears on the last day of each Fiscal
Quarter, commencing with the Fiscal Quarter ending in October 2003, and on the
Revolving Commitment Termination Date. Interest on all outstanding Eurocurrency
Loans shall be payable on the last day of each Interest Period applicable
thereto, and, in the case of any Eurocurrency Loans having an Interest Period in
excess of three months, on each day which occurs every three months after the
initial date of such Interest Period, and on the Revolving Commitment
Termination Date. Interest on any Loan which is converted into a Loan of another
Type or which is repaid or prepaid shall be payable on the date of such
conversion (with respect to all amounts due on such Loan prior to such
conversion) or on the date of any such repayment or prepayment (on the amount
repaid or prepaid) thereof. All Default Interest shall be payable on demand.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the Borrower and the
Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
Section 2.14. Fees.
(a) The Borrower shall pay to the Administrative Agent and its
affiliates for their own account fees in the amounts and at the times previously
agreed upon in writing by the Borrower, the Administrative Agent and such
affiliates, and upon receipt thereof, the Administrative Agent and its
Affiliates shall promptly pay to each Lender the upfront fee previously agreed
to between such Lender and the Administrative Agent and its Affiliates.
42
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee (the "Commitment Fee"), which shall
accrue at the Applicable Percentage per annum (determined in accordance with
Schedule I) on the daily amount of the unused Revolving Commitment of such
Lender during the Availability Period. For purposes of computing the Commitment
Fee, the Revolving Commitment of each Lender shall be deemed used to the extent
of the Dollar Equivalent of outstanding Revolving Loans and LC Exposure, but not
Swingline Exposure, of such Lender.
(c) The Borrower agrees to pay (i) to the Administrative Agent, for
the account of each Lender, a letter of credit fee (the "Letter of Credit Fee")
with respect to its participation in the Letters of Credit, which shall accrue
at a rate per annum equal to the Applicable Margin for Eurocurrency Loans then
in effect on the average daily amount of such Lender's LC Exposure attributable
to such Letters of Credit during the period from and including the date of
issuance of such Letter of Credit to but excluding the date on which such Letter
of Credit expires or is drawn in full (including without limitation any LC
Exposure that remains outstanding after the Revolving Commitment Termination
Date), and (ii) to the Issuing Bank for its own account a which shall accrue at
the rate of 0.125% per annum on the average daily amount of the LC Exposure
during the period from and including the date of issuance of such Letter of
Credit to but excluding the date on which such Letter of Credit expires or is
drawn in full (including without limitation any LC Exposure that remains
outstanding after the Revolving Commitment Termination Date), as well as the
Issuing Bank's customary fees with respect to issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder.
Notwithstanding the foregoing, if the Required Lenders elect to increase the
interest rate on the Loans to the Default Interest pursuant to Section 2.13(c),
the rate per annum used to calculate the Letter of Credit Fee pursuant to clause
(i) above shall automatically be increased by an additional 2% per annum.
(d) Accrued fees shall be payable quarterly in arrears on the last
day of each calendar quarter, commencing on September 30, 2003 and on the
Revolving Commitment Termination Date; provided further, that any such fees
accruing after the Revolving Commitment Termination Date shall be payable on
demand.
Section 2.15. Computation of Interest and Fees.
Interest based on the Base Rate shall be computed on the basis of a
year of three hundred sixty-five (365) days (or three hundred sixty-six (366)
days in a leap year) and paid for the actual number of days elapsed (including
the first day but excluding the last day). All other interest and all fees shall
be computed on the basis of a year of three hundred sixty (360) days and paid
for the actual number of days elapsed (including the first day but excluding the
last day). Each determination by the Administrative Agent of an interest amount
or fee hereunder shall be made in good faith and, except for manifest error,
shall be final, conclusive and binding for all purposes.
Section 2.16. Inability to Determine Interest Rates. If prior to the
commencement of any Interest Period for any Eurocurrency Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances
43
affecting the relevant interbank market, adequate means do not exist for
ascertaining LIBOR for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBO Rate does not adequately and
fairly reflect the cost to such Lenders (or Lender, as the case may be) of
making, funding or maintaining their (or its, as the case may be)
Eurocurrency Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurocurrency Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to fund Loans in Alternate Currencies, to make Eurocurrency Loans or
to continue or convert outstanding Loans as or into Eurocurrency Loans shall be
suspended and (ii) all such affected Loans shall be converted into Base Rate
Loans on the last day of the then current Interest Period applicable thereto
unless the Borrower prepays such Loans in accordance with this Agreement. Unless
the Borrower notifies the Administrative Agent at least one Business Day before
the date of any Revolving Eurocurrency Borrowing for which a Notice of Revolving
Borrowing has previously been given that it elects not to borrow on such date,
then such Revolving Borrowing shall be made as a Base Rate Borrowing.
Section 2.17. Illegality. (a) If any Change in Law shall make it
unlawful or impossible for any Lender to make, maintain or fund any Eurocurrency
Loan and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall promptly give notice thereof to the Borrower and the
other Lenders, whereupon until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such suspension no longer
exist, the obligation of such Lender to make Revolving Eurocurrency Loans, or to
continue or convert outstanding Loans as or into Eurocurrency Loans, shall be
suspended. In the case of the making of a Revolving Eurocurrency Borrowing, such
Lender's Revolving Loan shall be made as a Base Rate Loan as part of the same
Revolving Borrowing for the same Interest Period and if the affected
Eurocurrency Loan is then outstanding, such Loan shall be converted to a Base
Rate Loan either (i) on the last day of the then current Interest Period
applicable to such Eurocurrency Loan if such Lender may lawfully continue to
maintain such Loan to such date or (ii) immediately if such Lender shall
determine that it may not lawfully continue to maintain such Eurocurrency Loan
to such date. Notwithstanding the foregoing, the affected Lender shall, prior to
giving such notice to the Administrative Agent, designate a different Applicable
Lending Office if such designation would avoid the need for giving such notice
and if such designation would not otherwise be disadvantageous to such Lender in
the good faith exercise of its discretion.
(b) If any Change in Law shall make it unlawful or impossible for
any Lender to make, maintain or fund any Loan in a particular Alternate Currency
and such Lender shall so notify the Administrative Agent, the Administrative
Agent shall promptly give notice thereof to the Borrower and the other Lenders,
whereupon until such Lender notifies the Administrative Agent and the Borrower
that the circumstances giving rise to such suspension no longer exist, (i) the
obligation of the Lenders to make Loans in such Alternate Currency shall be
suspended, and (ii) any Loans in such Alternate Currency shall be repaid and/or
converted to an available
44
Alternate Currency or Dollars on: (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.
Section 2.18. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement that is not otherwise included in the determination
of the Adjusted LIBO Rate hereunder against assets of, deposits with or
for the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing
Bank; or
(ii) impose on any Lender or on the Issuing Bank or the eurodollar
interbank market any other condition affecting this Agreement or any
Eurocurrency Loans made by such Lender or any Letter of Credit or any
participation therein;
and the result of either of the foregoing is to increase the cost to such Lender
of making, converting into, continuing or maintaining a Eurocurrency Loan or to
increase the cost to such Lender or the Issuing Bank of participating in or
issuing any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrower shall pay to the Administrative Agent for the
account of such Lender, within five (5) Business Days after the date of its
receipt of written notice from and demand by such Lender (such Lender to send a
copy of such notice and demand to the Administrative Agent), the additional
amount or amounts sufficient to compensate such Lender or the Issuing Bank, as
the case may be, for such additional costs incurred or reduction suffered,
except for additional costs for Taxes covered by Section 2.20 and additional
costs in respect of (a) income or franchise taxes imposed on (or measured by)
such Lender's or Issuing Bank's net income, as the case may be, by the United
States of America or any political subdivision or taxing authority thereof or
therein, or by the jurisdiction under the laws under which such Lender or the
Issuing Bank is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located or (b) any
branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which nay Lender is located.
(b) If any Lender or the Issuing Bank shall have determined that on
or after the date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's or the Issuing Bank's capital (or on the capital of such Lender's or
the Issuing Bank's parent corporation) as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation would have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies or the policies of
such Lender's or the Issuing Bank's parent corporation with respect to capital
adequacy) then, from time to time, within five (5) Business Days after receipt
by the Borrower of written demand by such Lender (with a copy thereof to the
Administrative Agent),
45
the Borrower shall pay to such Lender such additional amounts as will compensate
such Lender or the Issuing Bank or such Lender's or the Issuing Bank's parent
corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts (and the basis for determining such amount or amounts)
necessary to compensate such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's parent corporation, as the case may be, specified in paragraph
(a) or (b) of this Section shall be delivered by the Lender or Issuing Bank or
such Lender's or the Issuing Bank's parent corporation, as the case may be, to
the Borrower (with a copy to the Administrative Agent) concurrently with the
notice required to be delivered by paragraph (a) or (b) of this Section and
shall be conclusive, absent manifest error. The Borrower shall pay such amount
or amounts in accordance with the provisions of paragraph (a) or (b) of this
Section.
(d) Failure or delay on the part of any Lender or the Issuing Bank
to demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation.
(e) If and so long as any Lender is required to comply with reserve
assets, liquidity, cash margin or other requirements of any monetary or other
authority (including any such requirement imposed by the European Central Bank
or the European System of Central Banks, but excluding requirements reflected in
the Eurocurrency Reserve Percentage) in respect of any of such Lender's
Alternate Currency Loans in any Alternate Currency, such Lender may require the
Borrower to pay, contemporaneously with each payment of interest on each of such
Alternate Currency Loans subject to such requirements, additional interest on
such Loan at a rate per annum specified by such Lender to be the cost to such
Lender of complying with such requirements in relation to such Alternate
Currency Loan.
(f) Any additional interest owed pursuant to paragraph (e) above
shall be determined by the relevant Lender and notified to the Borrower (with a
copy to the Administrative Agent) in the form of a certificate setting forth
such additional interest (and the basis for determining such amount) at least
five (5) Business Days before each date on which interest is payable for the
relevant Alternate Currency Loan, and such additional interest so notified to
the Borrower by such Lender shall be payable to the Administrative Agent for the
account of such Lender on each date on which interest is payable for such Loan.
Failure or delay on the part of any Lender on any occasion to demand additional
interest pursuant to this Section 2.18 shall not constitute a waiver of such
Lender's right to demand such additional interest on any subsequent occasion.
Section 2.19. Funding Indemnity. (a) In the event of (i) the payment
of any principal of a Eurocurrency Loan other than on the last day of the
Interest Period applicable thereto (including as a result of an Event of
Default, (ii) the conversion or continuation of a Eurocurrency Loan other than
on the last day of the Interest Period applicable thereto or (iii) the failure
by the Borrower to borrow, prepay, convert or continue any Eurocurrency Loan on
the date specified in any applicable notice (regardless of whether such notice
is withdrawn or revoked), then, in any such event, the Borrower shall compensate
each Lender, within five (5) Business Days after written demand from such
Lender, for any loss, cost or expense attributable
46
to such event. Such loss, cost or expense shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (A) the amount of
interest that would have accrued on the principal amount of such Eurocurrency
Loan if such event had not occurred at the Adjusted LIBO Rate applicable to such
Eurocurrency Loan for the period from the date of such event to the last day of
the then current Interest Period therefor (or in the case of a failure to
borrow, prepay, convert or continue, for the period that would have been the
Interest Period for such Eurocurrency Loan) over (B) the amount of interest that
would accrue on the principal amount of such Eurocurrency Loan for the same
period if the Adjusted LIBO Rate were set on the date such Eurocurrency Loan was
prepaid or converted or the date on which the Borrower failed to borrow, prepay,
convert or continue such Eurocurrency Loan. In the case of an Alternate Currency
Loan, such loss, cost or expense shall mean all loss, cost and expense sustained
or incurred in liquidating or employing deposits from third parties acquired to
effect, fund or maintain such Alternate Currency Loan or any part thereof. A
certificate of such Lender setting forth the basis for determining any
additional amount payable under this Section 2.19 shall be submitted to the
Borrower by such Lender (with a copy to the Administrative Agent) and shall be
conclusive, absent manifest error.
Section 2.20. Taxes.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Taxes; provided, that if the Borrower shall be required to deduct any Taxes from
such payments, then the Borrower shall make such deductions and the Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law. Notwithstanding the foregoing, if the Borrower
shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent or any Lender or the
Issuing Bank (as the case may be) shall receive an amount equal to the sum it
would have received had no such deductions been made.
(b) [Intentionally omitted.]
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank within five (5) Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority
47
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Code or any treaty to which the United
States is a party, with respect to payments under this Agreement shall deliver
to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
Without limiting the generality of the foregoing, each Foreign Lender agrees
that on the Closing Date or concurrently with the relevant Assignment and
Acceptance, as applicable, it will deliver to the Administrative Agent and the
Borrower (or in the case of a Participant, to the Lender from which the related
participation shall have been purchased), as appropriate, two (2) duly completed
copies of (i) Internal Revenue Service Form W-8 ECI, or any successor form
thereto, certifying that the payments received from the Borrower hereunder are
effectively connected with such Foreign Lender's conduct of a trade or business
in the United States; or (ii) Internal Revenue Service Form W-8 BEN, or any
successor form thereto, certifying that such Foreign Lender is entitled to
benefits under an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest; or (iii) Internal
Revenue Service Form W-8 BEN, or any successor form prescribed by the Internal
Revenue Service, together with a certificate (A) establishing that the payment
to the Foreign Lender qualifies as "portfolio interest" exempt from U.S.
withholding tax under Code section 871(h) or 881(c), and (B) stating that (1)
the Foreign Lender is not a bank for purposes of Code section 881(c)(3)(A), or
the obligation of the Borrower hereunder is not, with respect to such Foreign
Lender, a loan agreement entered into in the ordinary course of its trade or
business, within the meaning of that section; (2) the Foreign Lender is not a
10% shareholder of the Borrower within the meaning of Code section 871(h)(3) or
881(c)(3)(B); and (3) the Foreign Lender is not a controlled foreign corporation
that is related to the Borrower within the meaning of Code section 881(c)(3)(C);
or (iv) such other Internal Revenue Service forms as may be applicable to the
Foreign Lender, including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender
shall deliver to the Borrower and the Administrative Agent such forms on or
before the date that it becomes a party to this Agreement (or in the case of a
Participant, on or before the date such Participant purchases the related
participation). In addition, each such Foreign Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Foreign Lender. Each such Foreign Lender shall promptly notify the Borrower
and the Administrative Agent at any time that it determines that it is no longer
in a position to provide any previously delivered certificate to the Borrower
(or any other form of certification adopted by the Internal Revenue Service for
such purpose).
(f) Each Lender that is organized under the laws of the United
States or any state or other political subdivision thereof and that is not
organized as a corporation shall, on or prior to the date hereof and at such
other time or times prescribed by applicable law, deliver to the Borrower (with
a copy to the Administrative Agent), a properly completed IRS Form W-9 or
successor form as will permit such payments to be made without withholding.
(g) In the event that a Foreign Lender or a Lender described in
Section 2.20(f) timely delivers the documentation specified in Section 2.20(e)
or (f), as the case may be, Borrower (or the Administrative Agent) shall make
the payments under this Agreement without withholding
48
taxes or at a reduced rate of withholding tax in accordance with applicable
provisions of the Code or any tax treaty to which the United States is a party.
If a Foreign Lender or a Lender described in Section 2.20(f) fails to make
timely delivery of the documentation specified in Section 2.20(e) or (f), as the
case may be, the Borrower (or the Administrative Agent) shall deduct and
withhold taxes from the payments under this Agreement at the applicable
statutory rate provided in the Code.
(h) If the Borrower is required to pay additional amounts to or for
the account of any Lender pursuant to this Section 2.20, then such Lender will
agree to use reasonable efforts to change the jurisdiction of its applicable
lending office so as to eliminate or reduce any such additional payment which
may thereafter accrue if such change is not, in such Lender's sole good faith
determination, disadvantageous to such Lender. In addition, each Lender (and the
Administrative Agent with respect to payments to the Administrative Agent for
its own account) agrees that (i) it will take all reasonable actions by all
usual means to maintain all exemptions, if any, available to it from United
States withholding taxes (whether available by treaty, existing administrative
waiver, by virtue of the location of any Lender's applicable lending office or
otherwise) and (ii) otherwise cooperate with the Borrower to minimize amounts
payable by the Borrower under this Section 2.20; provided, however, that each
Lender and the Administrative Agent shall not be obligated by reason of this
clause(h) to disclose any information regarding its tax affairs or tax
computations or to reorder its tax or other affairs or tax or other planning..
Section 2.21. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Sections 2.18, 2.19, 2.20 or 10.3, or
otherwise) prior to 2:00 p.m. on the date when due, in immediately available
funds, free and clear of any defenses, rights of set-off, counterclaim, or
withholding or deduction of taxes. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent at
the Payment Office, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be made payable for the period of such extension.
(b) All payments of Obligations shall be made in Dollars, except for
Loans funded, and reimbursement obligations with respect to Letters of Credit
issued, in Alternate Currencies, which shall be repaid, including interest
thereon, in the applicable Alternate Currency.
(c) Subject to the terms of Section 8.2, if at any time insufficient
funds are received by and available to the Administrative Agent to pay fully
amounts of principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of interest
and fees then due hereunder, ratably among the parties entitled thereto in
49
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, towards payment of principal and unreimbursed LC Disbursements then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.
(d) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain any amounts from the Borrower, such Lender
shall apply such payments to the Obligations payment in respect of any principal
of or interest on any of its Loans or other Revolving Credit Exposure that would
result in such Lender receiving payment of a greater proportion of the aggregate
amount of its Loans and other Revolving Credit Exposure and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans and other Revolving Credit Exposure of other Lenders
to the extent necessary so that the benefit of all such payments shall be shared
by the Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Loans and other Revolving Credit
Exposure; provided, that (i) if any such participations are purchased and all or
any portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or other Revolving Credit Exposure to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount or amounts due. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders or the Issuing Bank,
as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(f) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.5(b), 2.6(b), 2.22(d) or (e) or 10.3(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
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Section 2.22. Letters of Credit.
(a) During the Availability Period and in reliance upon the
agreements of the other Lenders pursuant to Section 2.22(d), the Issuing Bank
agrees to issue, at the request of the Borrower, Letters of Credit for the
account of the Borrower on the terms and conditions hereinafter set forth;
provided, that (i) each Letter of Credit shall expire on the earlier of (A) the
date one year after the date of issuance of such Letter of Credit (or in the
case of any renewal or extension thereof, one year after such renewal or
extension) and (B) the date that is one (1) Business Day prior to the Revolving
Commitment Termination Date; (ii) each Letter of Credit shall be in the stated
amount of at least the Dollar Equivalent of $5,000; and (iii) the Borrower may
not request any Letter of Credit and the Issuing Bank shall not be obligated to
issue any Letter of Credit, if, after giving effect to such issuance (A) the
aggregate LC Exposure would exceed the LC Commitment, (B) the aggregate
Revolving Credit Exposure would exceed the Borrowing Limit, or (C) the issuance
of such Letter of Credit would violate any legal or regulatory restriction then
applicable to the Issuing Bank or any Lender, as notified by the Issuing Bank or
such Lender to the Administrative Agent before the date of issuance of such
Letter of Credit. Each Letter of Credit shall be subject to the Uniform Customs
and Practices for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 (the "Uniform Customs"), as the same may be amended
from time to time, and, to the extent not inconsistent therewith, the governing
law of this Agreement set forth in Section 10.5. Each Letter of Credit shall be
denominated in Dollars or in an Alternate Currency.
(b) To request the issuance of a Letter of Credit (or any amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
give the Issuing Bank and the Administrative Agent irrevocable written notice
specifying the date of issuance of such Letter of Credit (which shall be a
Business Day), the expiration date of such Letter of Credit, the amount and
Currency of such Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare, amend,
renew or extend such Letter of Credit, such notice to be received at least (i)
three (3) Business Days prior to the date of issuance thereof for Letters of
Credit denominated in Dollars and (ii) four (4) Business Days prior to the date
of issuance thereof for Letters of Credit denominated in any Alternate Currency.
In addition to the satisfaction of the conditions in Article III, the issuance
of such Letter of Credit (or any amendment which increases the amount of such
Letter of Credit) will be subject to the further conditions that such Letter of
Credit shall be in such form and contain such terms as the Issuing Bank shall
approve and that the Borrower shall have executed and delivered any outstanding
applications, agreements and instruments relating to such Letter of Credit as
the Issuing Bank shall reasonably require; provided, that in the event of any
conflict between such applications, agreements or instruments and this
Agreement, the terms of this Agreement shall control.
(c) At least two (2) Business Days prior to the issuance of any
Letter of Credit, the Issuing Bank will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received such
notice and if not, the Issuing Bank will provide the Administrative Agent with a
copy thereof. Unless the Issuing Bank has received notice from the
Administrative Agent on or before the Business Day immediately preceding the
date the Issuing Bank is to issue the requested Letter of Credit (i) directing
the Issuing Bank not to issue the Letter of Credit because such issuance is not
then permitted hereunder because of the limitations set forth in Section 2.22(a)
or (ii) that one or more conditions specified in Article III are not then
satisfied,
51
then, subject to the terms and conditions hereof, the Issuing Bank shall, on the
requested date, issue such Letter of Credit to the beneficiary thereof (with a
copy to the Borrower) in accordance with the Issuing Bank's usual and customary
business practices. Upon the issuance of each Letter of Credit each Lender shall
be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Issuing Bank without recourse a participation in such Letter of Credit
equal to such Lender's Pro Rata Share of the aggregate amount available to be
drawn under such Letter of Credit. Each issuance of a Letter of Credit shall be
deemed to utilize the Revolving Commitment of each Lender by an amount equal to
the amount of such participation. As of the Closing Date, all Existing Letters
of Credit shall be deemed to be Letters of Credit outstanding hereunder, and
each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase a participation in each Existing Letter of Credit from the
applicable Issuing Bank without recourse, equal to such Lender's Pro Rata Share
of the aggregate amount available to be drawn under such Existing Letter of
Credit.
(d) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly following its
receipt thereof. The Issuing Bank shall provide prompt written notice to the
Borrower and the Administrative Agent of such demand for payment and whether the
Issuing Bank has made or will make a LC Disbursement thereunder; provided, that
any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Lenders with
respect to such LC Disbursement. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the Issuing Bank for any LC Disbursements
paid by the Issuing Bank in respect of such drawing, without presentment, demand
or other formalities of any kind. Unless the Borrower shall have notified the
Issuing Bank and the Administrative Agent prior to 11:00 a.m. on the Business
Day immediately prior to the date on which such drawing is honored that the
Borrower intends to reimburse the Issuing Bank for the amount of such drawing in
funds other than from the proceeds of Revolving Loans, the Borrower shall be
deemed to have timely given a Notice of Revolving Borrowing to the
Administrative Agent requesting the Lenders to make a Base Rate Borrowing on the
date on which such drawing is honored in an amount equal to the Dollar
Equivalent of the exact amount due to the Issuing Bank, plus any reasonable
out-of-pocket transaction costs incurred by the Issuing Bank to convert any LC
Disbursement funded in Alternate Currency into Dollars; provided, that for
purposes solely of such Borrowing, the conditions precedents set forth in
Section 3.2 hereof shall not be applicable. The Administrative Agent shall
timely notify the Lenders of such Borrowing in accordance with Section 2.3, and
each Lender shall make the proceeds of its Base Rate Loan included in such
Borrowing available to the Administrative Agent for the account of the Issuing
Bank in accordance with Section 2.6. The proceeds of such Borrowing shall be
applied directly by the Administrative Agent to reimburse the Issuing Bank for
such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender (other than the
Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (c) in an amount equal to its Pro Rata Share of
such LC Disbursement on and as of the date on which such Base Rate Borrowing
should have occurred. Each Lender's obligation to make a Base Rate Loan under
subsection (d) or to fund its participation shall be absolute and unconditional
and shall not be affected by any circumstance, including without limitation (i)
any set-off, counterclaim, recoupment, defense or
52
other right that such Lender or any other Person may have against the Issuing
Bank or any other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of the Aggregate Revolving
Commitments, (iii) any adverse change in the condition (financial or otherwise)
of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement by
the Borrower or any other Lender, (v) any amendment, renewal or extension of any
Letter of Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly transfer, in
immediately available funds, the amount of its participation to the
Administrative Agent for the account of the Issuing Bank. Whenever, at any time
after the Issuing Bank has received from any such Lender the funds for its
participation in a LC Disbursement, the Issuing Bank (or the Administrative
Agent on its behalf) receives any payment on account thereof, the Administrative
Agent or the Issuing Bank, as the case may be, will distribute to such Lender
its share of such payment based on its Pro Rata Share of the Revolving
Commitments; provided, that if such payment is required to be returned for any
reason to the Borrower or to a trustee, receiver, liquidator, custodian or
similar official in any bankruptcy proceeding, such Lender will return to the
Administrative Agent or the Issuing Bank any portion thereof previously
distributed by the Administrative Agent or the Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (d) or (e) of this Section 2.22 on the
due date therefor, such Lender shall pay interest to the Issuing Bank (through
the Administrative Agent) on such amount from such due date to the date such
payment is made at a rate per annum equal to the Federal Funds Rate; provided,
that if such Lender shall fail to make such payment to the Issuing Bank within
two (2) Business Days of such due date, then, retroactively to the due date,
such Lender shall be obligated to pay interest on such amount at the Default
Rate.
(g) If any Event of Default shall occur and be continuing, on the
Business Day that the Borrower receives notice from the Administrative Agent or
the Required Revolving Lenders demanding the deposit of cash collateral pursuant
to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Issuing Bank and the Lenders, an amount in cash equal to the LC
Exposure as of such date plus any accrued and unpaid fees thereon; provided,
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (g) or (h) of Section 8.1. Such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the Obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Borrower agrees to execute any
documents and/or certificates as may be reasonably necessary to effectuate the
intent of this paragraph. The Administrative Agent shall invest, at the
Borrower's risk and expense, such cash collateral in an interest bearing deposit
account or certificate of deposit. Moneys in such account shall be applied by
the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for
which it had not been reimbursed and to the extent so applied, shall be held for
the satisfaction of the reimbursement obligations of the Borrower for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated,
with the consent of the Required Revolving Lenders, may be applied to satisfy
other obligations of the Borrower under this Agreement and the other Loan
Documents. If the Borrower is required to provide an
53
amount of cash collateral hereunder as a result of the occurrence and
continuance of an Event of Default, such amount (to the extent not so applied as
aforesaid) shall be returned to the Borrower within one Business Day after all
Events of Default have been cured or waived.
(h) Promptly following the end of each Fiscal Quarter, the Issuing
Bank shall deliver (through the Administrative Agent) to each Lender and the
Borrower a written report describing the aggregate Letters of Credit outstanding
at the end of such Fiscal Quarter (including the Currencies in which such
Letters of Credit have been issued). Upon the request of any Lender from time to
time, the Issuing Bank shall deliver to such Lender any other information
reasonably requested by such Lender with respect to each Letter of Credit then
outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under all
circumstances whatsoever and irrespective of any of the following circumstances:
(i) Any lack of validity or enforceability of any Letter of Credit
or this Agreement;
(ii) The existence of any claim, set-off, defense or other right
which the Borrower or any Subsidiary or Affiliate of the Borrower may have
at any time against a beneficiary or any transferee of any Letter of
Credit (or any Persons or entities for whom any such beneficiary or
transferee may be acting), any Lender (including the Issuing Bank) or any
other Person, whether in connection with this Agreement or the Letter of
Credit or any document related hereto or thereto or any unrelated
transaction;
(iii) Any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document to the Issuing Bank that does
not comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a
right of set-off against, the Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to above), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from
54
causes beyond the control of the Issuing Bank; provided, that the foregoing
shall not be construed to excuse the Issuing Bank from liability to the Borrower
to the extent of any actual direct damages (as opposed to special, indirect
(including claims for lost profits or other consequential damages), or punitive
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank's failure to exercise due care when determining whether drafts
or other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree, that in the absence of gross
negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be
deemed to have exercised due care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(j) General Terms of Documentary Letters of Credit.
(i) To the extent any failure to comply with the provisions of this
Section 2.22(j) would, either individually or in the aggregate, result in
a Material Adverse Effect, the Borrower agrees 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 Bank 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 Bank's interest to be endorsed on such
insurance and to furnish the Issuing Bank 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 Bank, the
Issuing Bank may (but is not obligated to) obtain, after notice, at the
Borrowers' expense, insurance satisfactory to the Issuing Bank.
(ii) In connection with each documentary Letter of Credit, neither
the Issuing Bank nor any correspondent shall be responsible for: (A) the
existence, character, quality, quantity, condition, packing, value or
delivery of the property purporting to be represented by documents; (B)
any difference in character, quality, condition or value of the property
from that expressed in documents; (C) the time, place, manner or order in
which shipment of the property is made; (D) partial or incomplete shipment
referred to in such Letter of Credit; (E) the character, adequacy or
responsibility of any insurer, or any other risk connected with insurance
other than insurance procured by the Issuing Bank; (F) any deviation from
instructions, delay, default or fraud by the beneficiary or anyone
55
else in connection with the property or the shipping thereof; (G) the
solvency, responsibility or relationship to the property of any party
issuing any documents in connection with the property; (H) delay in
arrival or failure to arrive of either the property or any of the
documents relating thereto; (I) delay in giving or failure to give notice
of arrival or any other notice; (J) any breach of contract between the
Letter of Credit beneficiaries and any Borrower; (K) any laws, customs,
and regulations which may be effective in any jurisdiction where any
negotiation and/or payment of such Letter of Credit occurs; (L) failure of
documents (other than documents required by the terms of the Letter of
Credit) to accompany any draft at negotiation; or (M) 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 Bank
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 Bank's rights or powers hereunder. If a
Letter of Credit provides that payment is to be made by the Issuing Bank's
correspondence, neither the Issuing Bank 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 Bank'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.
Section 2.23. Extension of Revolving Commitment Termination Date.
(a) At least ninety (90) days but no more than one hundred twenty
(120) days prior to the then effective Revolving Commitment Termination Date,
the Borrower, by delivering a written request to the Administrative Agent (such
request being irrevocable), may request that the Revolving Commitment
Termination Date be extended for an additional one-year period. Upon receipt of
such notice, the Administrative Agent shall promptly communicate such request to
the Lenders in writing.
(b) No later than sixty (60) days prior to the then effective
Revolving Commitment Termination Date, each Lender shall indicate to the
Administrative Agent whether the Borrower's request to so extend such Revolving
Commitment Termination Date is acceptable to such Lender, it being understood
that the determination by each Lender will be in its sole and absolute
discretion and that if any Lender shall fail to so respond within such period
such Lender shall be deemed to be a Non-Consenting Lender (as defined below)
with respect to such request. The Administrative Agent shall notify the Borrower
promptly upon its receipt thereof, in writing, of each Lender's decision.
(c) If less than all of the Lenders consent to any such request
pursuant to this Section 2.23, the Administrative Agent shall promptly so notify
the Lenders that consented to extend the Revolving Commitment Termination Date
(each a "Consenting Lender"), and each Consenting Lender may, in its sole
discretion, give written notice to the Administrative Agent not later than 15
days prior to the effective date of the extension of the Revolving Commitment
Termination Date of the amount of any other Lender's (each a "Non-Consenting
Lender") Revolving Commitments for which it is willing to accept an assignment.
If the Consenting Lenders notify the Administrative Agent that they are willing
to accept assignments of Revolving
56
Commitments in an aggregate amount that exceeds the amount of the Revolving
Commitments of the Non-Consenting Lenders, such Revolving Commitments shall be
allocated among the Consenting Lenders willing to accept such assignments in
such amounts as are agreed between the Borrower and the Administrative Agent. If
after giving effect to the assignments of Revolving Commitments described above
there remains any Revolving Commitments of Non-Consenting Lenders, the Borrower
may arrange for one or more Consenting Lenders or other Eligible Assignees (an
"Assuming Lender") to assume, effective as of the effective date of the
extension of the Revolving Commitment Termination Date, any Non-Consenting
Lender's Revolving Commitment and all of the obligations of such Non-Consenting
Lender under this Agreement thereafter arising, without recourse to or warranty
by, or expense to, such Non-Consenting Lender; provided, however, that the
amount of the Revolving Commitment of any such Assuming Lender as a result of
such substitution shall in no event be less than $1,000,000, unless the amount
of the Revolving Commitment of such Non-Consenting Lender is less than
$1,000,000, in which case such Assuming Lender shall assume all of such lesser
amount; and provided further that:
(i) any such Consenting Lender or Assuming Lender shall have paid to
such non-Consenting Lender (A) the aggregate principal amount of, and any
interest accrued and unpaid to the effective date of the assignment on,
the outstanding Loans, if any, of such Non-Consenting Lender plus (B) any
accrued but unpaid fees owing to such Non-Consenting Lender as of the
effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements and
indemnities payable to such Non-Consenting Lender, and all other accrued
and unpaid amounts owing to such Non-Consenting Lender hereunder, as of
the effective date of such assignment shall have been paid to such
Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the processing and
recordation fee required under Section 10.4 for such assignment shall have
been paid;
provided further that such Non-Consenting Lender's rights under Sections 2.18,
2.19, 2.20 and 10.3 shall survive such substitution as to matters occurring
prior to the date of substitution. At least three (3) Business Days prior to the
effective date of the extension of the Revolving Commitment Termination Date,
(A) each such Assuming Lender, if any, shall have delivered to the Borrower and
the Administrative Agent an Assignment and Acceptance in form and substance
satisfactory to the Borrower and the Administrative Agent, duly executed by such
Assuming Lender, such Non-Consenting Lender, the Borrower and the Administrative
Agent, (B) any such Consenting Lender shall have delivered confirmation in
writing satisfactory to the Borrower and the Administrative Agent as to the
increase in the amount of its Revolving Commitment and (C) each Non-Consenting
Lender being replaced pursuant to this Section 2.23 shall have delivered to the
Administrative Agent any Note or Notes held by such Non-Consenting Lender. Upon
the payment or prepayment of all amounts referred to in clauses (i) (ii) and
(iii) of the immediately preceding sentence, each such Consenting Lender or
Assuming Lender, as of the effective date of the extension of the Revolving
Commitment Termination Date, will be substituted for such Non-Consenting Lender
under this Agreement and shall be a Lender for all purposes of this Agreement,
without any further acknowledgment by or the consent of the other Lenders, and
the obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
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(d) Subject to the satisfaction of the conditions set forth in
clauses (a) through (c) of Section 3.2, in the event that (after giving effect
to any assignments or assumptions pursuant to subsection (c) of this Section
2.23) Lenders holding at least 70% of the Revolving Commitments have consented
to the Borrower's request to extend the Revolving Commitment Termination Date,
the Revolving Commitment Termination Date shall be extended for an additional
one-year period, except with respect to Revolving Commitments of any
Non-Consenting Lender. To the extent that the Revolving Commitment Termination
Date is not extended as to any Lender pursuant to this Section 2.23 and the
Revolving Commitments of such Lender are not assumed in accordance with
subsection (c) of this Section 2.23 on or prior to the effective date of such
extension, the Revolving Commitments of such Non-Consenting Lender shall
automatically terminate in whole on the Revolving Commitment Termination Date
prior to such extension without any further notice or other action by the
Borrower, such Lender or any other Person and the principal amount outstanding
under such Non-Consenting Lender's Revolving Commitment, together with accrued
and unpaid interest, fees and other amounts due hereunder, shall be due and
payable on such date; provided that such Non-Consenting Lender's rights under
Sections 2.18, 2.19, 2.20 and 10.3 shall survive the termination date for such
Lender as to matters occurring prior to such date. Notwithstanding anything
contained in this Section 2.23 to the contrary, in no event shall the Revolving
Commitment Termination Date shall be extended beyond the fifth anniversary of
the Closing Date. Promptly following the date of any extension of the Revolving
Commitment Termination Date, the Administrative Agent shall notify the Lenders
(including, without limitation, each Assuming Lender) of the extension of the
Revolving Termination Date in effect immediately prior thereto and shall
thereupon record in the register the information with respect to each such
Consenting Lender and each such Assuming Lender.
Section 2.24. Alternate Currency Provisions.
(a) Each Lender's Pro Rata Share 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 Applicable Lending Office to make such Alternate Currency Loan;
provided, however, that no such election shall be made if as a result thereof
the Borrower would be required to pay United States withholding taxes or any
additional amounts. In the event that a Lender is unable to fulfill its
commitment to make such Alternate Currency Loan through its Applicable Lending
Office because of its inability to make loans in such requested Currency, such
Lender shall enter into a foreign exchange transaction with the Administrative
Agent for the Currency applicable to such Alternate Currency Loan; provided,
that if the Administrative Agent shall determine in its reasonable credit
judgment that it is unwilling to enter into such foreign exchange transaction
with such Lender, such Currency shall be deemed to be unavailable to all Lenders
and the Administrative Agent and the Lenders shall have no obligation to make
such Alternate Currency Loan.
(b) 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
Borrower 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
58
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 the 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 Borrower 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 Borrower hereunder in the Contractual Currency.
(c) If the 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 Borrower 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 would, 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 Borrower may be ascertained
for such winding-up, liquidation, dissolution or bankruptcy before payment by
the liquidator or other appropriate person in respect thereof.
(d) On the Closing Date, the available Alternate Currencies include
Euros, Australian Dollars, Canadian Dollars, British Pounds Sterling, Swiss
Francs, Yen and Swedish Krona. The Administrative Agent and the Issuing Bank
shall be entitled to assume that such Currencies, and any other currencies
requested by the Borrower that all Lenders agree to provide, remain available to
all Lenders until such time as the Administrative Agent and the Issuing Bank
actually receive written notice to the contrary from any Lender. Upon receipt of
any such notice, the Administrative Agent shall promptly notify the Borrower,
and thereafter no additional Alternate Currency Loans in such Currency shall be
made, and no additional Alternate Currency Letters of Credit shall be issued.
Any Alternate Currency Loans in such Currency outstanding at the time such
notice is received shall remain outstanding until the end of the Interest Period
related thereto, subject to the provisions of Section 2.17(b), and then shall be
repaid or converted into a Eurocurrency Loan in Dollars or another Alternate
Currency. Any Alternate Currency Letters of
59
Credit in such Currency outstanding at the time such notice is received shall
remain outstanding until the expiry date thereof and may not be renewed or
extended in such Currency.
(e) Exchange Rates.
(i) Not later than 2:00 p.m. on each Determination Date, the
Administrative Agent shall (A) determine the Exchange Rate as of such
Determination Date with respect to all Alternate Currencies, and (B) give
notice thereof to the Lenders and the Borrower. The Exchange Rates so
determined shall become effective on the first Business Day immediately
following the relevant Determination Date (a "Reset Date"), shall remain
effective until the next succeeding Reset Date, and shall for all purposes
of this Agreement be the Exchange Rates employed in determining the Dollar
Equivalent of any amounts of such Alternate Currencies.
(ii) Not later than 5:00 p.m. on each Reset Date and each
Determination Date, the Administrative Agent shall (A) determine the
Dollar Equivalent of the aggregate principal amounts of the Revolving
Loans and LC Exposures (after giving effect to any Revolving Loans and/or
Letters of Credit being made, issued, repaid, or cancelled or reduced on
such date), and (B) notify the Lenders and the Borrower of the results of
such determination.
Section 2.25. European Economic and Monetary Union.
(a) Effectiveness of Provisions. The provisions of subsections (b)
through (i) 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.
(b) 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.
(c) Loans. Any Alternate Currency Loan in the currency of a
Participating Member State shall be made in the Euro Unit, provided that any
Alternate Currency Loan may, if so requested by the Borrower, be made in the
National Currency Unit (based upon fixed exchange
60
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.
(d) 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.
(e) 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 Borrower 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 Borrower 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.
(f) 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 Unit are no longer provided, such
convention or practice in the London Interbank Market 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 Alternate Currency Loan, at
the end of the then current Interest Period.
(g) 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 Borrower to the Lenders and of the Lenders to the Borrower under or
pursuant to this Agreement,
(i) each reference in this Agreement to a minimum amount (or an
integral multiple thereof) in a National Currency Unit to be paid to or by
a Lender shall be replaced by a reference to such reasonably comparable
and convenient amount (or an integral multiple thereof) in the Euro Unit
as such Lender may from time to time specify; and
(ii) except as expressly provided in this Agreement, each provision
of this Agreement, including, without limitation, the right to combine
currencies to effect a set-
61
off, 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.
(h) Exchange Indemnification and Increased Costs. The Borrower shall
from time to time, upon demand from the Lenders, pay to the Lenders the amount
of any loss, expense 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 the Borrower's election to borrow in a
National Currency Unit and repay in the Euro or to borrow in the Euro and repay
in a National Currency Unit other than any such cost or reduction or amount
foregone reflected in the associated interest rate.
(i) Further Assurances. Borrower agrees, 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 2.26. Collateral. The Obligations and all Guarantees thereof
shall be secured under the Collateral Documents on a pari passu basis with the
obligations of the Borrower under the Pari Passu Credit Facility, the
obligations of the Borrower and certain of its Subsidiaries under the Tokyo Swap
Transaction and the obligations of the Borrower and certain of its Subsidiaries
under the Citizens Swap Transaction.
Section 2.27. Increase of Commitments, Additional Lenders.
(a) To the extent that the aggregate principal amount of all
Commitments is less than $175,000,000 and so long as no Event of Default has
occurred and is continuing, Borrower may, from time to time after the Closing
Date and in any event upon at least 5 days' prior written notice to the
Administrative Agent (who shall promptly provide a copy of such notice to each
Lender), propose to increase the Revolving Commitments such that the Aggregate
Revolving Commitments after giving effect to such increase does not exceed
$175,000,000 (the amount of any such increase, the "Additional Revolver
Amount"). No Lender (or any successor thereto) shall have any obligation to
increase either its Commitments or its other obligations under this Agreement
and the other Loan Documents, and any decision by a Lender to increase its
Commitments shall be made in its sole discretion independently from any other
Lender.
(b) The Borrower may designate a bank or other financial institution
(which may be, but need not be, one or more of the existing Lenders) which at
the time agrees to, in the case of any such Person that is an existing Lender,
increase its Commitments, and in the case of any other such Person (an
"Additional Lender"), become a party to this Agreement and provide a new
Commitment; provided, however, that any new bank or financial institution must
be acceptable to the Administrative Agent, which acceptance will not be
unreasonably withheld or delayed. The sum of the increases in the Revolving
Commitments of the existing Lenders pursuant to this subsection (b) plus the
Revolving Commitments of the Additional Lenders shall not in the aggregate
exceed the unsubscribed amount of the Additional Revolver Amount.
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(c) An increase in the Commitments pursuant to this Section 2.28
shall become effective upon the receipt by the Administrative Agent of an
agreement in form and substance reasonably satisfactory to the Administrative
Agent signed by the Borrower, by each Additional Lender and by each other Lender
whose Commitments are to be increased, setting forth the new Commitments of such
Lenders and setting forth the agreement of each Additional Lender to become a
party to this Agreement and to be bound by all the terms and provisions hereof,
together with such evidence of appropriate corporate authorization on the part
of the Borrower with respect to the increase in the Commitments and such
opinions of counsel for the Borrower with respect to the increase in the
Commitments as the Administrative Agent may reasonably request.
(d) Upon the acceptance of any such agreement by the Administrative
Agent, the Revolving Commitments shall automatically be increased by the
Additional Revolver Amount and Annex I shall automatically be deemed amended to
reflect the new Commitments of all Lenders after giving effect to the addition
of such Commitments.
(e) Upon any increase in the aggregate amount of the Revolving
Commitments pursuant to this Section 2.28 that is not pro rata among all
Lenders, (x) within 5 Business Days, in the case of any Base Rate Loans then
outstanding, and at the end of the then current Interest Period with respect
thereto, in the case of any Eurocurrency Loan then outstanding, the Borrower
shall prepay such Loans in their entirety and, to the extent the Borrower elects
to do so and subject to the conditions specified in Article III, the Borrower
shall reborrow such Loans from the Lenders in proportion to their respective
Revolving Commitments after giving effect to such increase, until such time as
all outstanding Revolving Loans are held by the Lenders in such proportion and
(y) effective upon such increase, the amount of the participations held by each
Lender in each Letter of Credit then outstanding shall be adjusted such that,
after giving effect to such adjustments, the Lenders shall hold participations
in each such Letter of Credit in the proportion its respective Revolving
Commitment bears to the Aggregate Revolving Commitments after giving effect to
such increase.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
Section 3.1. Conditions To Effectiveness. The obligations of the
Lenders (including the Swingline Lender) to make Loans and the obligation of the
Issuing Bank to issue any Letter of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
by the Administrative Agent):
(a) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including reimbursement
or payment of all reasonable out-of-pocket expenses (including reasonable fees,
and disbursements of outside counsel to the Administrative Agent) required to be
reimbursed or paid by the Borrower hereunder, under the Fee Letter and under any
agreement with the Administrative Agent or SunTrust Capital Markets, Inc., as
Arranger.
(b) The Administrative Agent (or its counsel) shall have received
the following:
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(i) a counterpart of this Agreement signed by or on behalf of each
party hereto;
(ii) Revolving Credit Notes payable to each Lender and a Swingline
Note payable to the Swingline Lender, in each case duly executed by the
Borrower;
(iii) the Subsidiary Guaranty Agreement, duly executed by the
Material Domestic Subsidiaries and acknowledged by the Borrower;
(iv) the Security Agreement duly executed by all Loan Parties,
together with (A) the Perfection Certificate duly completed and executed
by the Borrower with respect to the Borrower and its Material Domestic
Subsidiaries, (B) UCC financing statements and other applicable documents
under the laws of the jurisdictions with respect to the perfection of the
Liens granted under the Security Agreement, as reasonably requested by the
Administrative Agent in order to perfect such Liens, duly authorized or
executed (as appropriate) by all Loan Parties, (C) except as permitted by
Section 5.13(c), copies of favorable UCC, tax and judgment lien search
reports in all necessary or appropriate jurisdictions and under all legal
and trade names of all Loan Parties reasonably requested by the Lenders,
(1) indicating that there are no prior Liens on any of the Collateral
other than Permitted Encumbrances or Liens permitted by Section 7.2(f), or
(2) accompanied by such UCC termination statements (or authorization for
the Administrative Agent to file such UCC amendments or termination
statements), and such other cancellations and releases reasonably
requested by the Administrative Agent to release all Liens other than
Permitted Encumbrances on any Collateral and Liens permitted by Section
7.2(f); and (D) duly executed Collateral Access Agreements with respect to
locations leased or under the control of third parties at which Inventory
to be included within the Borrowing Base is located;
(v) the Domestic Pledge Agreement, duly executed by all Loan Parties
that own or hold Capital Stock of a Material Domestic Subsidiary, and the
Cayman Pledge Agreement duly executed by JLG International and the
Borrower, together with (A) original certificates, if any, evidencing the
issued and outstanding shares of Capital Stock of the Loan Parties pledged
to the Administrative Agent pursuant thereto, and (B) stock powers or
other appropriate instruments of transfer executed in blank with respect
to such certificates;
(vi) Patent Security Agreements and Trademark Security Agreements,
each dated the Closing Date and executed by each Loan Party that owns
Patents and Trademarks, as applicable;
(vii) except as set forth on Schedule 5.13, the Bank Account Control
Agreements and Investment Control Agreements with respect to all deposit
accounts, securities, securities entitlements, other financial assets held
in a securities account, commodity account, and commodity contracts of the
Loan Parties;
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(viii) the Intercreditor Agreement, duly executed by the Lenders,
the lender providing the Pari Passu Credit Facility, The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch, Citizens Bank of Pennsylvania and
the Borrower;
(ix) a certificate of the Secretary or Assistant Secretary of each
Loan Party, attaching and certifying copies of (A) its bylaws, partnership
agreement, limited liability company operating agreement, or comparable
organizational documents, (B) resolutions of its board of directors or
other governing body, as applicable, approving the execution, delivery and
performance of the Loan Documents to which it is a party, and (C)
certifying the name, title and true signature of each officer of such Loan
Party executing the Loan Documents to which it is a party;
(x) certified copies of the articles or certificate of
incorporation, certificate of organization or limited partnership, or
other registered organizational documents of each Loan Party, together
with certificates of good standing or existence, as may be available from
the Secretary of State of the jurisdiction of organization of such Loan
Party and each other jurisdiction where such Loan Party is required to be
qualified to do business as a foreign corporation and a failure to be so
qualified would not reasonably be expected to result in a Material Adverse
Effect;
(xi) favorable written opinions of in-house counsel to the Loan
Parties, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, outside counsel to the Loan Parties, and
Cayman Islands counsel to the Administrative Agent, in each case addressed
to the Administrative Agent and each of the Lenders, and covering such
matters relating to the Loan Parties, the Loan Documents and the
transactions contemplated therein as the Administrative Agent shall
reasonably request;
(xii) a certificate, dated the Closing Date and signed by a
Responsible Officer, certifying that immediately before and after giving
effect to the initial Revolving Loans hereunder, (A) no Default or Event
of Default exists and (B) all representations and warranties of each Loan
Party set forth in the Loan Documents are true and correct,
(xiii) if the Borrower wishes to make a Borrowing on the Closing
Date, Notice of Borrowing and a funds disbursement agreement, duly
executed by the Borrower;
(xiv) Borrowing Base Certificate dated as of the Closing Date, duly
executed by the chief financial officer of the Borrower, demonstrating
that after giving effect to the Revolving Loans to be made on the Closing
Date, the Borrowing Availability is at least $25,000,000;
(xv) certified copies of all consents, approvals, authorizations,
registrations and filings and orders required to be made or obtained under
any Requirement of Law, or by any Contractual Obligation of each Loan
Party, in connection with the execution, delivery, performance, validity
and enforceability of the Loan Documents, and such consents, approvals,
authorizations, registrations, filings and orders shall be in full force
and effect, and all applicable waiting periods shall have expired;
65
(xvi) certificates of insurance issued on behalf of insurers of the
Loan Parties, describing in reasonable detail the types and amounts of
insurance (property and liability) maintained by the Loan Parties, naming
the Administrative Agent as additional insured and loss payee, as
appropriate, together with a separate loss payable endorsement in favor of
the Administrative Agent, executed by the insurance carrier(s) providing
all such property and casualty insurance;
(xvii) a field audit of all Accounts and Inventory of the Loan
Parties (other than Accounts and Inventory of JLG OmniQuip, Inc. and its
Subsidiaries), completed by auditors selected by the Administrative Agent
in consultation with the Borrower, the results of which shall be in form
and substance reasonably satisfactory to the Administrative Agent;
(xviii) certified copy of the documents executed in connection with
the Pari Passu Credit Facility, which shall be on terms and conditions
reasonably acceptable to the Administrative Agent; and
(xix) evidence that all Indebtedness outstanding under the Existing
Credit Agreement has been repaid in full, and the Existing Credit
Agreement and all commitments to lend thereunder have been terminated
(except for indemnification obligations that by their terms survive
termination).
Section 3.2. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing (other than a conversion or
continuation of an outstanding Borrowing, including without limitation any
conversions of Alternate Currency Loans pursuant to Section 2.24) and of the
Issuing Bank to issue, amend, renew or extend any Letter of Credit is subject to
the satisfaction of the following conditions, at the time of and immediately
after giving effect to such Borrowing or issuance, amendment, renewal or
extension of such Letter of Credit, as applicable:
(a) no Default or Event of Default shall exist;
(b) all representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct in all material respects (except
with respect to any representation or warranty made as of any earlier date,
which shall be true and correct in all material respects as of such earlier
date);
(c) since the date of the audited financial statements of the
Borrower described in Section 4.4(a)(i), there shall have been no change which
has had or would reasonably be expected to have a Material Adverse Effect;
(d) the Revolving Credit Exposure shall not exceed the Borrowing
Limit;
(e) the Borrower shall have delivered the required Notice of
Borrowing or notice relating to a Letter of Credit, as the case may be; and
(f) the Administrative Agent shall have received such other
documents, certificates, information or legal opinions as the Administrative
Agent or the Required Lenders
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may reasonably request, all in form and substance reasonably satisfactory to the
Administrative Agent or the Required Lenders.
Each Borrowing and each issuance, amendment, extension or renewal of
any Letter of Credit shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in clauses (a),
(b), (c) and (d) of this Section 3.2.
Section 3.3. Delivery of Documents. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, in sufficient
original counterparts with respect to this Agreement for each of the Lenders and
shall be in form and substance reasonably satisfactory in all respects to the
Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
each Lender that (other than with respect to any Monetization Subsidiary):
Section 4.1. Existence; Power. Each of the Borrower and its
Subsidiaries (a) is duly organized, validly existing and in good standing as a
corporation, partnership or limited liability company under the laws of the
jurisdiction of its incorporation or formation, (b) has all requisite power and
authority to carry on its business as now conducted, and (c) is duly qualified
to do business, and is in good standing, in each jurisdiction where such
qualification is required, except where a failure to be so qualified would not
reasonably be expected to result in a Material Adverse Effect.
Section 4.2. Organizational Power; Authorization. The execution,
delivery and performance by each Loan Party of the Loan Documents to which it is
a party are within such Loan Party's organizational powers and have been duly
authorized by all necessary organizational, and if required, shareholder,
partner or member action. This Agreement has been duly executed and delivered by
the Borrower, and, assuming the due execution and delivery by the Lenders,
constitutes, and each other Loan Document to which any Loan Party is a party,
when executed and delivered by such Loan Party, will, assuming the due execution
and delivery by the Lenders, constitute, valid and binding obligations of the
Borrower or such Loan Party (as the case may be), enforceable against it in
accordance with their respective terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
the enforcement of creditors' rights generally and by general principles of
equity.
Section 4.3. Governmental Approvals; No Conflicts. The execution,
delivery and performance by the Borrower of this Agreement, and by each Loan
Party of the other Loan Documents to which it is a party (a) do not require any
consent or approval of, registration or filing with, or any action by, any
Governmental Authority, except those as have been obtained or made and are in
full force and effect, (b) will not violate any Requirements of Law applicable
to the Borrower or any of its Subsidiaries or any judgment, order or ruling of
any Governmental
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Authority, (c) will not violate or result in a default under any indenture,
material agreement or other material instrument binding on the Borrower or any
of its Subsidiaries or any of its assets or give rise to a right thereunder to
require any payment to be made by the Borrower or any of its Subsidiaries and
(d) will not result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries, except Liens (if any) created under the
Loan Documents.
Section 4.4. Financial Statements. (a) The Borrower has furnished to
each Lender (i) the audited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of July 31, 2002, and the related consolidated
statements of income and retained earnings and cash flows for the Fiscal Year
then ended prepared by Ernst & Young LLP and (ii) the unaudited consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of April 27,
2003, and the related unaudited consolidated statements of income and retained
earnings and cash flows for the Fiscal Quarter and year-to-date period then
ending, certified by a Responsible Officer. Such financial statements fairly
present the consolidated financial condition of the Borrower and its
Consolidated Subsidiaries as of such dates and the consolidated results of
operations for such periods in conformity with GAAP consistently applied,
subject to year end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii). Since July 31, 2002, there have
been no changes with respect to the Borrower and its Consolidated Subsidiaries
which have had or would reasonably be expected to have, singly or in the
aggregate, a Material Adverse Effect. Notwithstanding the immediately preceding
sentence, changes in the Borrower's consolidated balance sheet, statement of
income and retained earnings, and cash flows reflected in the statements
referred to in clause (ii) shall be deemed not to constitute a Material Adverse
Effect either for purposes of Section 3.2(c) or this Section 4.4.
(b) The Projections delivered to the Administrative Agent prior to
the date hereof have been prepared by the Borrower in light of the past
operations of its businesses and the businesses acquired in the OmniQuip
Acquisition, but including future payments of known contingent liabilities, and
reflect projections for the 2003 through 2004 Fiscal Years on a
quarter-by-quarter basis and 2003 through 2007 on an annual basis. Such
Projections reflect as of the Closing Date the Borrower's good faith and
reasonable estimates of the future financial performance of the Borrower and of
the other information projected therein for the period set forth therein based
on the assumptions set forth therein. Each set of Projections delivered as of
the Closing Date or after the Closing Date to the Lenders are based upon
estimates and assumptions stated therein, all of which the Borrower believes at
the time of delivery to be reasonable in light of the conditions and facts known
to Borrower at such time.
Section 4.5. Litigation and Environmental Matters.
(a) Except for matters existing on the Closing Date and set forth on
Schedule 4.5, no litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to the knowledge
of the Borrower, threatened in writing against or affecting the Borrower or any
of its Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination that would reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect or (ii) which in any
manner draws into question the validity or enforceability of this Agreement or
any other Loan Document.
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(b) Except for the matters set forth on Schedule 4.5 as of the
Closing Date, neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability, or (iv) knows of any basis
for any Environmental Liability, in each case where such failure to comply or
such Environmental Liability would reasonably be expected to result in a
Material Adverse Effect.
Section 4.6. Compliance with Laws and Agreements. The Borrower and
each Subsidiary is in compliance with (a) all Requirements of Law and all
judgments, decrees and orders of any Governmental Authority and (b) all
indentures, agreements or other instruments binding upon it or its properties,
except where non-compliance, either singly or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect.
Section 4.7. Investment Company Act, Etc. Neither the Borrower nor
any of its Subsidiaries is (a) an "investment company" or is "controlled" by an
"investment company", as such terms are defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended, (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935, as amended or (c) otherwise subject to any other regulatory
scheme limiting its ability to incur debt or requiring any approval or consent
from or registration or filing with, any Governmental Authority in connection
therewith.
Section 4.8. Taxes. The Borrower and its Subsidiaries and each other
Person for whose taxes the Borrower or any Subsidiary would reasonable be
expected to become liable have timely filed or caused to be filed all Federal
income tax returns and all other material tax returns that are required to be
filed by them, and have paid all material taxes shown to be due and payable on
such returns or on any assessments made against it or its property and all other
material taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority, except where the same are currently being contested
in good faith by appropriate proceedings and for which the Borrower or such
Subsidiary, as the case may be, has set aside on its books adequate reserves in
accordance with GAAP. The charges, accruals and reserves on the books of the
Borrower and its Consolidated Subsidiaries in respect of such taxes are in the
reasonable judgment of the Borrower adequate, and the Borrower does not
reasonably anticipate incurring tax liabilities materially in excess of the
amount so provided for the period to which such charges, accruals and reserves
apply.
Section 4.9. Margin Regulations. Neither the Borrower nor its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying
"margin stock."
Section 4.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, would reasonably be expected to
result in a Material Adverse Effect.
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Section 4.11. Ownership of Property.
(a) As of the Closing Date, each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all of its real
and personal property material to the operation of its business, including all
such properties reflected in the most recent audited consolidated balance sheet
of the Borrower referred to in Section 4.4 (except as sold or otherwise disposed
of in the ordinary course of business), in each case free and clear of Liens
prohibited by this Agreement. All leases that individually or in the aggregate
are material to the business or operations of the Borrower and its Subsidiaries,
taken as a whole, are valid and existing and are in full force.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed,
or otherwise has the right, to use, all Patents, Trademarks, service marks,
trade names, Copyrights and other intellectual property, and the use thereof by
the Borrower and its Subsidiaries does not infringe on the rights of any other
Person, except for any such non-possession or infringement which would not
reasonably be expected to have a Material Adverse Effect.
(c) The properties of the Borrower and its Subsidiaries are insured
with financially sound and reputable insurance companies which are not
Affiliates of the Borrower, in such amounts with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses
and owning similar properties in localities where the Borrower or any applicable
Subsidiary operates.
Section 4.12. Disclosure. The Borrower has disclosed to the Lenders
all agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports (including without limitation all reports that
the Borrower is required to file with the Securities and Exchange Commission),
financial statements, certificates or other information furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender in connection
with the negotiation, closing or syndication of this Agreement or any other Loan
Document or otherwise submitted to the Administrative Agent, Collateral Agent,
Issuing Bank or the Lenders pursuant to or in connection with this Agreement
(taken together with all other information so furnished and as modified or
supplemented by any other information so furnished) contains any material
misstatement of fact or omits to state, in each case as of the date delivered,
any material fact necessary to make the statements therein, taken as a whole, in
light of the circumstances under which they were made, not misleading; provided,
that with respect to projected financial information or other forward looking
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
Section 4.13. Labor Relations. There are no strikes, lockouts or
other material labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against or affecting
the Borrower or any of its Subsidiaries, and no significant unfair labor
practice, charges or grievances are pending against the Borrower or any of its
Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any Governmental Authority, in each case, that would reasonably be
expected to result in a Material Adverse Effect. All payments due from the
Borrower or any of its Subsidiaries pursuant to the
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provisions of any collective bargaining agreement have been paid or accrued as a
liability on the books of the Borrower or any such Subsidiary, except where the
failure to do so would not reasonably be expected to have a Material Adverse
Effect.
Section 4.14. Subsidiaries. Schedule 4.14 sets forth the name of,
the ownership interest of the Borrower in, the jurisdiction of incorporation or
formation of, and the type of, each Subsidiary and identifies each Subsidiary
that is a Subsidiary Loan Party, in each case as of the Closing Date.
Section 4.15. Insolvency. After giving effect to the execution and
delivery of the Loan Documents, the making of the Loans under this Agreement,
and the consummation of the Loans, neither the Borrower and its Consolidated
Subsidiaries, taken as a whole, nor any of the Loan Parties, individually, will
be "insolvent," within the meaning of such term as defined in Section 101 of
Title 11 of the United States Code, as amended from time to time, or be unable
to pay their respective debts generally as such debts become due, or have an
unreasonably small capital to engage in their respective businesses or
transaction, whether current or contemplated.
Section 4.16. Subordination of Subordinated Debt; Senior Unsecured
Notes. (a) This Agreement, and all amendments, modifications, extensions,
restructurings, refinancings and replacements hereof, constitute the "Senior
Indebtedness" within the meaning of the Subordinated Debt Documents related to
the Senior Subordinated Notes; and the Revolving Loans and all other Obligations
of the Borrower to the Lenders and the Administrative Agent under this
Agreement, the Notes and all other Loan Documents, and all amendments,
modifications, extensions, restructurings, refinancings or replacements of any
of the foregoing constitute "Senior Indebtedness" of the Borrower within the
meaning of the Subordinated Debt Documents related to the Senior Subordinated
Notes, and the holders thereof from time to time shall be entitled to all of the
rights of a holder of "Senior Indebtedness" pursuant to the Subordinated Debt
Documents related to the Senior Subordinated Notes.
(b) This Agreement, and all amendments, modifications, extensions,
renewals, refinancings and refundings hereof, constitute the "Bank Credit
Facilities" within the meaning of documents governing the Senior Unsecured
Notes.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains unpaid or outstanding (other than
any Obligation with respect to indemnification which specifically survives the
termination of this Agreement):
Section 5.1. Financial Statements and Other Information. The
Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within ninety (90) days
after the end of each Fiscal Year, a copy of the annual audited report for such
Fiscal Year for the Borrower and its Consolidated Subsidiaries, containing a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such Fiscal Year and the related consolidated
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statements of income, retained earnings and cash flows (together with all
footnotes thereto) of the Borrower and its Consolidated Subsidiaries for such
Fiscal Year, setting forth in comparative form the figures for the previous
Fiscal Year, all in reasonable detail and with respect to such audited financial
statements, reported on by Ernst & Young LLP or other independent public
accountants of nationally recognized standing (without any qualification or
exception) to the effect that such financial statements present fairly in all
material respects the financial condition and the results of operations of the
Borrower and its Consolidated Subsidiaries for such Fiscal Year on a
consolidated basis in accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with auditing standards generally accepted in the United
States;
(b) as soon as available and in any event within forty-five (45)
days after the end of each Fiscal Quarter, unaudited consolidated balance sheets
of the Borrower and its Consolidated Subsidiaries as of the end of such Fiscal
Quarter and the related unaudited consolidated statements of income and cash
flows, of the Borrower and its Consolidated Subsidiaries for such Fiscal Quarter
and the then elapsed portion of such Fiscal Year, setting forth in each case in
comparative form the figures for the corresponding quarter and the corresponding
portion of Borrower's previous Fiscal Year;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a Compliance Certificate signed by the
chief financial officer of the Borrower;
(d) concurrently with the delivery of the financial statements
referred to in clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained any
knowledge during the course of their examination of such financial statements of
any Default or Event of Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) within 5 Business Days of the filing thereof, copies of all
registration statements (excluding the exhibits thereto and any registration
statements on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K
(or their equivalents) and all other periodic reports which the Borrower shall
file with the Securities and Exchange Commission (or any Governmental Authority
substitute therefore) or any national securities exchange provided that any such
registration statements or reports shall be deemed delivered at the time such
registration statement or reports become available on ▇▇▇▇▇ and the Borrower
notifies the Administrative Agent and the Lenders thereof;
(f) within 10 Business Days after the end of each of Fiscal Month,
or more frequently as reasonably requested by the Administrative Agent, (i) a
Borrowing Base Certificate as of the end of the immediately preceding Fiscal
Month, setting forth the Eligible Accounts and Eligible Inventory owned by the
Borrower and a categorical breakdown (based on the definitions of Eligible
Accounts and the types of Eligible Inventory) of all Eligible Accounts and
Eligible Inventory as of such date and, so long as the Administrative Agent
timely provides the Borrower with the applicable Swap Termination Value, the
Swap Termination Value for each of the Citizens Interest Rate Hedge Agreement
and the Tokyo Interest Rate Hedge Agreement, in each case as of the Business Day
immediately preceding delivery of such Borrowing Base Certificate, and (ii) an
accounts receivable aging report as of the end of the immediately preceding
Fiscal Month;
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(g) on any Business Day that the Revolving Credit Exposure plus the
amount outstanding under the Pari Passu Credit Facility at the end of the
immediately proceeding Business Day is greater than or equal to $160,000,000,
the Borrower shall provide to Administrative Agent no later than 11:00 a.m. on
such Business Day written notice of the outstanding principal amount under the
Pari Passu Credit Facility as of the close of business on the immediately
preceding Business Day; and
(h) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial condition of
the Borrower or any Subsidiary as the Administrative Agent or any Lender may
reasonably request.
Section 5.2. Notices of Material Events. The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default or Event of Default, or the
receipt by Borrower or any of its Subsidiaries of any written notice of an
alleged default or event of default in respect of any Material Indebtedness of
the Borrower or any of its Subsidiaries;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or, to the knowledge
of the Borrower, affecting the Borrower or any Subsidiary which, if adversely
determined, would reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by which
the Borrower or any of its Subsidiaries (i) fails to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) becomes subject to any
Environmental Liability, (iii) receives notice of any claim with respect to any
Environmental Liability, or (iv) becomes aware of any basis for any
Environmental Liability and in each of the preceding clauses, which individually
or in the aggregate, would reasonably be expected to result in a Material
Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with
any other ERISA Events that have occurred, would reasonably be expected to
result in a Material Adverse Effect; ; and
(e) any other development that results in, or would reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a written
statement of a Responsible Officer setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
Section 5.3. Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries (other than Monetization Subsidiaries) to,
do or cause to be done all things necessary to preserve, renew and maintain in
full force and effect its legal existence and its respective rights, licenses,
permits, privileges, franchises, Patents, Copyrights, Trademarks and trade names
material to the conduct of the business of the Borrower and its Consolidated
Subsidiaries, taken as a whole; provided, that nothing in this Section shall
prohibit
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any merger, consolidation, sale, lease transfer, disposition, liquidation or
dissolution permitted under Section 7.3 or any Assets Sales permitted under
Section 7.6
Section 5.4. Compliance with Laws, Etc. The Borrower will, and will
cause each of its Subsidiaries to, comply with all Requirements of Law,
including without limitation, all Environmental Laws, ERISA and OSHA, except
where the failure to do so, either individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect.
Section 5.5. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay and discharge, all of its obligations and
liabilities (including without limitation all tax liabilities and claims) in
accordance with customary trade practices, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP or (c) the failure to pay or
discharge such obligation or liability would not reasonably be expected to
result in a Material Adverse Effect.
Section 5.6. Books and Records. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record of dealings and
transactions in relation to its business and activities to the extent necessary
to prepare the consolidated financial statements of Borrower in conformity with
GAAP.
Section 5.7. Visitation, Inspection, Etc. (a) The Borrower will, and
will cause each of its Subsidiaries to, permit any representative of the
Administrative Agent or any Lender, to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and,
in the presence of an officer the Borrower, with its independent certified
public accountants, all at such reasonable times and as often as the
Administrative Agent or any Lender may reasonably request at reasonable
intervals after reasonable prior notice to the Borrower; provided, however, if
an Event of Default has occurred and is continuing, no prior notice or
limitations on intervals shall be required; provided, further, that any failure
of the Borrower's independent certified public accountants to agree to meet with
the Administrative Agent or any Lender shall not constitute a breach by the
Borrower of this Section 5.7. The Borrower shall be obligated to reimburse the
Administrative Agent for its costs and expenses incurred in connection with the
exercise of the rights of the Administrative Agent under this Section no more
frequently than four (4) times per calendar year unless an Event of Default has
occurred and is continuing.
(b) The Borrower will, and will cause each of its Subsidiaries
(other than Monetization Subsidiaries) to, deliver to the Lenders such field
audits of all Inventory and Accounts of the Loan Parties as the Required Lenders
may reasonably request, all at reasonable times and upon advance notice to the
Borrower, all such field audits to be conducted by internal auditors of the
Administrative Agent or of nationally recognized standing, and in form and
substance, reasonably satisfactory to the Required Lenders; provided that so
long as no Event of Default has occurred and is continuing, in no event shall
any such audit be conducted more frequently than once during each Fiscal
Quarter. The Borrower shall pay the reasonable fees and expenses of such auditor
as to which invoices have been furnished.
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Section 5.8. Maintenance of Properties; Insurance. Except for Asset
Sales permitted by Section 7.6, the Borrower will, and will cause each of its
Subsidiaries (other than Monetization Subsidiaries) to, (a) keep and maintain
all property material to the conduct of the business of the Borrower and its
Subsidiaries, taken as a whole, in good working order and condition, ordinary
wear and tear excepted, (b) maintain with financially sound and reputable
insurance companies, insurance with respect to its properties and business, and
the properties and business of its Subsidiaries, against loss or damage of the
kinds customarily insured against by companies in the same or similar businesses
operating in the same or similar locations and (c) at all times shall name
Administrative Agent as additional insured on all liability policies of the
Borrower and its Subsidiaries that are material to the Borrower and its
Subsidiaries, taken as a whole.
Section 5.9. Use of Proceeds and Letters of Credit. The Borrower
will use the proceeds of all Loans to consummate the Refinancing, for working
capital needs and for other general corporate purposes of the Borrower and its
Subsidiaries. No part of the proceeds of any Loan will be used, whether directly
or indirectly, for any purpose that would violate any rule or regulation of the
Board of Governors of the Federal Reserve System, including Regulations T, U or
X. All Letters of Credit will be used for working capital needs and other
general corporate purposes.
Section 5.10. Cash Management. Subject to Section 5.13 of this
Agreement, Borrower shall, and shall cause its Material Domestic Subsidiaries
(other than Monetization Subsidiaries) to:
(a) establish and maintain all of their domestic deposit and
disbursement bank accounts (each, a "Bank Account") with the Administrative
Agent or with other Lenders that (together with the applicable Loan Party) have
executed and delivered to the Collateral Agent Bank Account Control Agreements,
in form and substance reasonably acceptable to the Collateral Agent; each Bank
Account shall be a cash collateral account, with all cash, checks and other
similar items of payment in such account securing payment of the Obligations,
and in which Borrower and each of its Subsidiaries (other than Monetization
Subsidiaries) shall have granted a Lien to the Collateral Agent, on behalf of
itself, the Administrative Agent, the Issuing Bank, the Lenders, the lender
under the Pari Passu Credit Facility, Citizens Bank of Pennsylvania, The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch and any counterparties to Hedging
Transactions that are entered into to replace or refinance either the Tokyo
Interest Rate Hedge Agreement or the Citizens Interest Rate Hedge Agreement
(collectively, the "Blocked Accounts"); and
(b) deposit promptly, and in any event no later than the first
Business Day after the date of receipt thereof, all cash, checks, drafts or
other similar items of payment relating to or constituting payments made in
respect of any and all Accounts and other Collateral into Blocked Accounts.
(c) until such time as the Borrower or its applicable Subsidiary
complies with the provisions of Section 5.13, cause no more than $3,000,000 in
the aggregate to be invested at any time in the accounts listed on Schedule
5.13.
Section 5.11. Additional Subsidiaries.
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(a) The Borrower shall notify the Administrative Agent and the
Lenders, concurrently with delivery of each Compliance Certificate, if during
the Fiscal Quarter covered by such Compliance Certificate (i) a Subsidiary is
created or acquired that is a Material Domestic Subsidiary but not a Subsidiary
Loan Party or (ii) a Subsidiary becomes a Material Domestic Subsidiary that is
not a Subsidiary Loan Party. Within fifteen (15) days after the delivery of such
Compliance Certificate, the Borrower shall cause any such Material Domestic
Subsidiary (x) to join the Subsidiary Guaranty Agreement as a new Subsidiary
Loan Party by executing and delivering to the Administrative Agent a Subsidiary
Guaranty Supplement, (y) to grant Liens in favor of the Collateral Agent by
joining the Security Agreement, executing and delivering a Copyright Security
Agreement, Patent Security Agreement and Trademark Security Agreement (as
applicable) and executing and delivering such instruments reasonably required by
the Administrative Agent to perfect Liens in favor of the Collateral Agent
granted under any of the Loan Documents, and (z) to deliver all such other
documentation (including without limitation, lien searches, legal opinions, and
certified organizational documents) and to take all such other actions as such
Material Domestic Subsidiary would have been required to deliver and take
pursuant to Section 3.1 if such Material Domestic Subsidiary had been a Loan
Party on the Closing Date.
(b) The Borrower shall notify the Administrative Agent and the
Lenders, concurrently with delivery of each Compliance Certificate, if during
the Fiscal Quarter covered by such Compliance Certificate any event shall have
occurred as a result of which at least 66% of the Capital Stock of JLG
International and 100% of all Capital Stock of any Material Domestic Subsidiary
owned by the Borrower or any of its Subsidiaries are not pledged to the
Collateral Agent pursuant to the Domestic Pledge Agreement. Within fifteen (15)
days after the delivery of such Compliance Certificate, the Borrower shall, and
shall cause its Subsidiaries (other than any Monetization Subsidiaries) owning
the Capital Stock of such Material Domestic Subsidiary, to pledge to the
Collateral Agent as security for the Obligations such Capital Stock of such
Material Domestic Subsidiary by (i) executing and delivering a supplement to the
Domestic Pledge Agreement, in form and substance reasonably satisfactory to the
Collateral Agent, (ii) delivering (if any) the original stock certificates
evidencing such additional Capital Stock to the Collateral Agent, together with
appropriate stock powers executed in blank and (iii) delivering such other
documentation (including without limitation, legal opinions, and certified
organizational documents) and taking all such other actions that would have been
required pursuant to Section 3.1 if such Capital Stock had been pledged pursuant
to the Domestic Pledge Agreement on the Closing Date.
(c) The Borrower shall notify the Administrative Agent and the
Lenders, concurrently with the delivery of each Compliance Certificate, if
during the Fiscal Quarter covered by such Compliance Certificate any event shall
have occurred as a result of which at least 66% of the Capital Stock of any
Material First-Tier Foreign Subsidiary owned by the Borrower or any of its
Subsidiaries is not pledged to the Collateral Agent pursuant to a Pledge
Agreement. Within sixty (60) days after the delivery of such Compliance
Certificate, the Borrower shall, and shall cause its Subsidiaries owning the
Capital Stock of such Material First-Tier Foreign Subsidiary, to pledge to the
Collateral Agent as security for the Obligations such Capital Stock of such
Material First-Tier Foreign Subsidiary by (i) executing and delivering a Pledge
Agreement, in form and substance reasonably satisfactory to the Collateral
Agent, (ii) delivering (if any) the original stock certificates evidencing such
additional Capital Stock to the Collateral Agent,
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together with appropriate stock powers or similar instruments of transfer
executed in blank and (iii) delivering such other documentation (including
without limitation, lien searches, legal opinions, and certified organizational
documents) and taking all such other actions that would have been required
pursuant to Section 3.1 if such Capital Stock had been pledged pursuant to a
Pledge Agreement on the Closing Date provided that in no event shall the
Borrower or any Subsidiary be required to pledge any Capital Stock of a Material
Foreign Subsidiary if (x) a Responsible Officer shall have delivered a
certificate to the Administrative Agent certifying that the Borrower has
determined, on the basis of reasonable inquiries in the jurisdiction of such
Material Foreign Subsidiary, that such pledge would affect materially and
adversely the ability of such Material Foreign Subsidiary to conduct its
business in such jurisdiction or (y) such pledge would be contrary to the
applicable law of such jurisdiction.
(d) All actions to be taken pursuant to this Section 5.11 shall be
at the expense of the Borrower or the applicable Loan Party, and shall be taken
to the reasonable satisfaction of the Administrative Agent.
Section 5.12. Further Assurances. The Borrower will, and will cause
each of its Subsidiaries to, make, execute, endorse, acknowledge and deliver
agreements, instruments or documents, and take any and all such actions, as may
from time to time be reasonably requested by the Administrative Agent to perfect
and maintain the validity and priority of the Liens granted pursuant to the
Collateral Documents to the extent required therein and to effect, confirm or
further assure or protect the interests, rights and remedies of the
Administrative Agent and the Lenders under this Agreement and the other Loan
Documents.
Section 5.13. Post-Closing Requirements. The Borrower will, and will
cause each of its Subsidiaries to do the following:
(a) No later than sixty (60) days after the Closing Date, (i) (x)
deliver to the Collateral Agent a Bank Account Control Agreement (in form and
substance reasonably satisfactory to the Collateral Agent) with respect to each
of the accounts listed on Part A of Schedule 5.13 or (y) close all such accounts
for which Bank Account Control Agreements are not obtained; and (ii) (x) deliver
to the Collateral Agent an Investment Control Agreement (in form and substance
reasonably satisfactory to the Collateral Agent) with respect to each of the
accounts listed on Part B of Schedule 5.13 or (y) close all such accounts for
which Investment Control Agreements are not obtained.
(b) No later than sixty (60) days after the Closing Date, deliver to
the Administrative Agent certified copies of the articles of incorporation of
the Borrower and JLG Equipment Services, Inc., from the Secretary of State of
the State of Pennsylvania.
(c) No later than sixty (60) days after the Closing Date, deliver to
the Administrative Agent copies of favorable UCC, tax and judgment lien search
reports for JLG Holdings, Inc. from Washington County, Maryland.
(d) No later than ninety (90) days after the Closing Date, deliver
to the Collateral Agent a Patent Security Agreement and a Trademark Security
Agreement (each in form and substance reasonably satisfactory to the Collateral
Agent) executed by JLG Omniquip, Inc.
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pursuant to which JLG Omniquip, Inc. shall grant to the Collateral Agent a
security interest in all of its Patents and Trademarks, including but not
limited to each Patent and Trademark sold, assigned or transferred to JLG
Omniquip, Inc. pursuant to the terms of the Omniquip Acquisition Agreement.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains unpaid or outstanding (other than
any Obligation with respect to indemnification which specifically survives the
termination of this Agreement):
Section 6.1. Leverage Ratio. The Borrower will maintain, at all
times, commencing with the date on which the financial statements required under
Section 5.1(b) have been delivered with respect to the Fiscal Quarter ending
October 26, 2003, a Leverage Ratio of not greater than:
Fiscal Quarter Leverage Ratio
-------------- --------------
For each Fiscal Quarter ending on or 6.0:1.0
prior to July 31, 2004
For each Fiscal Quarter ending after 5.0:1.0
July 31, 2004 and on or prior to
July 31, 2005
For each Fiscal Quarter ending after
July 31, 2005 4.0:1.0
Section 6.2. Senior Leverage Ratio. The Borrower will maintain, at
all times, commencing with the date on which the financial statements required
under Section 5.1(b) have been delivered with respect to the Fiscal Quarter
ending October 26, 2003, a Senior Leverage Ratio of not greater than 2.0:1.0.
Section 6.3. Fixed Charge Coverage Ratio. The Borrower will
maintain, as of the last day of each Fiscal Quarter, commencing with the date on
which the financial statements required under Section 5.1(b) have been delivered
with respect to the Fiscal Quarter ending October 26, 2003, a Fixed Charge
Coverage Ratio of not less than:
Fiscal Quarter Fixed Charge Coverage Ratio
-------------- ---------------------------
For each Fiscal Quarter ending on or 1.25:1.0
prior to July 31, 2004
For the Fiscal Quarter ending in 1.75:1.0
October 2004
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For each Fiscal Quarter ending in 2.00:1.0
January 2005, in April 2005 and on
July 31, 2005
For each Fiscal Quarter ending
after July 31, 2005 2.50:1.0
Section 6.4. Consolidated Tangible Net Worth The Borrower will
maintain, as of the last day of each Fiscal Quarter, a Consolidated Tangible Net
Worth of not less than the sum of (i) $194,000,000, plus (ii) 50% of
Consolidated Net Income on a cumulative basis for each preceding Fiscal Quarter,
commencing with the Fiscal Quarter ending July 31, 2003; provided, however, that
if Consolidated Net Income is negative in any Fiscal Quarter, the amount added
for such Fiscal Quarter shall be zero, plus (iii) fifty percent (50%) of the net
proceeds from each equity issuance by the Borrower and its Subsidiaries
occurring after the Closing Date.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains outstanding (other than any
Obligation with respect to indemnification which specifically survives the
termination of this Agreement):
Section 7.1. Indebtedness; Preferred Equity. The Borrower will not,
and will not permit any of its Subsidiaries (other than Monetization
Subsidiaries) to, create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness incurred under the Pari Passu Credit Facility in an
aggregate principal amount not to exceed $15,000,000;
(c) Indebtedness incurred in connection with the issuance of
industrial revenue development bonds or similar instruments in an aggregate
principal amount not to exceed $10,000,000 at any time outstanding;
(d) the Senior Unsecured Notes in an aggregate principal amount not
to exceed $125,000,000, the Senior Subordinated Notes in an aggregate principal
amount not to exceed $175,000,000 and Guarantees of such Senior Unsecured Notes
and such Senior Subordinated Notes existing on the date hereof;
(e) Indebtedness incurred in connection with Permitted MOSAs;
(f) Indebtedness incurred by Foreign Subsidiaries to finance the
international operations of the Borrower and its Subsidiaries in an aggregate
principal amount not to exceed (euro)7,500,000 at any time outstanding;
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(g) Indebtedness incurred in connection with Monetization
Transactions entered into in the ordinary course of business by the Borrower or
any of its Subsidiaries (including any Monetization Subsidiaries);
(h) other Indebtedness of the Borrower and its Subsidiaries existing
(or incurred pursuant to commitments to lend existing) on the date hereof and
set forth on Schedule 7.1 and extensions, renewals, refinancings and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof, (immediately prior to giving effect to such extension,
renewal or replacement) or shorten the maturity or the weighted average life
thereof;
(i) (i) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations, (ii) any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof, or extensions, renewals,
refinancings and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof (immediately prior to giving effect to such
extension, renewal or replacement) or shorten the maturity or the weighted
average life thereof; provided, that such Indebtedness is incurred prior to or
within one hundred eighty (180) days after such acquisition or the completion of
such construction or improvements; and (iii) operating leases; provided, that
the aggregate principal amount of Indebtedness described in clauses (i) and
(ii), plus the Operating Lease Value of the operating leases, does not exceed in
the aggregate 20% of Consolidated Tangible Net Worth;
(j) Indebtedness of the Borrower owing to any Subsidiary and of any
Subsidiary owing to the Borrower or any other Subsidiary; provided, that any
such Indebtedness that constitutes Investments by any Loan Party in any
Subsidiary that is not a Subsidiary Loan Party shall be subject to Section 7.4;
(k) Guarantees by the Borrower of Indebtedness of any Subsidiary and
by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary;
provided, that Guarantees by any Loan Party of Indebtedness of any Subsidiary
that is not a Subsidiary Loan Party shall be subject to Section 7.4;
(l) Indebtedness of any Person which becomes a Subsidiary after the
date of this Agreement and Indebtedness assumed in connection with any asset
acquisition by the Borrower or any Subsidiary permitted under Section 7.4;
provided, that (i) such Indebtedness exists at the time that such Person becomes
a Subsidiary or such asset is acquired and is not created in contemplation of or
in connection with such Person becoming a Subsidiary, and (ii) the aggregate
principal amount of such Indebtedness permitted hereunder shall not exceed
$30,000,000 outstanding at any time;
(m) other Indebtedness in an aggregate principal amount not to
exceed $30,000,000 outstanding at any time;
(n) Capital Leases and operating leases incurred in connection with
sale/leaseback transactions permitted by Section 7.9; and
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(o) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument presented by the
Borrower or any Subsidiary against insufficient funds (including in the case of
daylight drafts so long as such overdrafts are paid in full by the close of
business on the day such overdraft was incurred) in the ordinary course of
business; provided, that such Indebtedness (other than overdrafts occurring as a
result of daylight drafts) is paid in full by the close of business on the
Business Day immediately following the day such Indebtedness was incurred;
provided, further, that the aggregate principal amount of such Indebtedness
permitted hereunder shall not exceed $10,000,000 outstanding at any time;
Borrower will not, and will not permit any Subsidiary to, issue any preferred
stock or other preferred equity interests that (a) matures or is mandatorily
redeemable or subject to mandatory repurchase pursuant to a sinking fund
obligation at the option of the holder or otherwise, in whole or in part, except
upon a Change in Control or other event of mandatory redemption; provided, that
the terms of any such preferred stock or other preferred equity interests
provide, or offering documents pursuant to which any such preferred stock or
other preferred equity interests disclose, that the holders thereof are not
entitled to receive any payments as a result of such redemption, or to exercise
any remedies with respect thereto, until all Obligations, and any and all
Indebtedness that extends, renews, refinances or replaces the Obligations, have
been paid in full in cash or (b) is convertible or exchangeable at the option of
the holder thereof for Indebtedness or any preferred equity interests of the
type described in clause (a) of this paragraph, on or prior to, in the case of
clause (a) or (b), six months after the Revolving Commitment Termination Date.
Section 7.2. Negative Pledge. The Borrower will not, and will not
permit any of its Subsidiaries (other than Monetization Subsidiaries) to,
create, incur, assume or suffer to exist any Lien on any of its assets or
property now owned or hereafter acquired, except:
(a) Liens created in favor of the Collateral Agent for the benefit
of (i) the Lenders pursuant to the Collateral Documents, (ii) the lender
providing the Pari Passu Credit Facility, and (iii) The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch, and Citizens Bank of Pennsylvania and
any counterparties to Hedging Transactions (each, a "Hedging Obligation
Counterparty") that are entered into to replace or refinance either the Tokyo
Swap Transaction or the Citizens Swap Transaction so long (x) as each of the
Collateral Agent, the lender providing the Pari Passu Credit Facility, and any
Hedging Obligation Counterparty is a party to the Intercreditor Agreement; (y)
the notional amount under the Tokyo Swap Transaction shall not exceed
$62,500,000 and (z) the notional amount under the Citizens Swap Transaction
shall not exceed $70,000,000; provided, that any Hedging Obligation Counterparty
in whose favor a Lien is created and that is not a Lender must be satisfactory
to the Administrative Agent in its reasonable discretion;
(b) Liens securing the Indebtedness permitted under Section 7.1(c)
to the extent any such Lien extends only to the property financed with the
Indebtedness secured by such Lien and property reasonably related thereto;
(c) Liens on assets of Foreign Subsidiaries securing the
Indebtedness permitted to be incurred by Foreign Subsidiaries under Section
7.1(f);
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(d) Liens on Monetization Assets incurred in connection with
Monetization Transactions permitted under Section 7.1(g);
(e) Permitted Encumbrances;
(f) any Liens on any property or asset of the Borrower or any
Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided,
that such Lien does not extend to any other property or asset of the Borrower or
any Subsidiary;
(g) purchase money Liens on any fixed or capital assets and assets
reasonably related thereto to secure the purchase price or the cost of the
acquisition, construction or improvement of such fixed or capital assets or to
secure Indebtedness incurred solely for the purpose of financing the
acquisition, construction or improvement of such fixed or capital assets
(including Liens securing any Capital Lease Obligations); provided, that (i)
such Lien secures Indebtedness permitted by Section 7.1(i), (ii) such Lien
attaches to such assets and assets reasonably related thereto concurrently or
within one hundred eighty (180) days after the acquisition, improvement or
completion of the construction thereof; and (iii) such Lien does not extend to
any other assets, other than assets reasonably related thereto;
(h) any Lien (i) existing on any asset of any Person at the time
such Person becomes a Subsidiary of the Borrower, (ii) existing on any asset of
any Person at the time such Person is merged with or into the Borrower or any
Subsidiary of the Borrower or (iii) existing on any asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower; provided,
that any such Lien was not created in contemplation of any of the foregoing and
any such Lien secures only those obligations which it secures on the date that
such Person becomes a Subsidiary or the date of such merger or the date of such
acquisition; and
(i) any Liens created in connection with sale/leaseback transactions
permitted under Section 7.9;
(j) Liens securing extensions, renewals, refinancings, or
replacements of any Indebtedness or other obligation referred to in paragraphs
(a) through (i) of this Section; provided, that (i) the principal amount of the
Indebtedness or other obligation secured thereby is not greater than the amount
secured by such Liens when such Indebtedness or other obligation was incurred by
the Borrower or any such Subsidiary and (ii) any such extension, renewal,
refinancing or replacement is limited to the assets originally encumbered
thereby.
Section 7.3. Fundamental Changes.
(a) The Borrower will not, and will not permit any Subsidiary (other
than any Monetization Subsidiary) to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, or lease, transfer or otherwise dispose of (in a single transaction or a
series of transactions) all or substantially all of its assets (in each case,
whether now owned or hereafter acquired) or all or substantially all of the
stock of any of its Subsidiaries (other than Monetization Subsidiaries) (in each
case, whether now owned or hereafter acquired) or liquidate or dissolve;
provided, that if at the time thereof and immediately after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing
(i) the Borrower or any Subsidiary may merge into or consolidate with a Person
if the Borrower (or such
82
Subsidiary if the Borrower is not a party to such merger) is the surviving
Person, (ii) any Subsidiary may merge into or consolidate with another
Subsidiary; provided, that if any party to such merger or consolidation is a
Subsidiary Loan Party, the Subsidiary Loan Party shall be the surviving Person;
and provided, further, that notwithstanding the foregoing, any Subsidiary Loan
Party may merge into or consolidate with any other Subsidiary Loan Party, (iii)
any Subsidiary may sell, transfer, lease or otherwise dispose of all or
substantially all of its assets to the Borrower or to a Subsidiary Loan Party,
(iv) the Borrower and its Subsidiaries may make Asset Sales permitted in Section
7.6, (v) any Subsidiary (other than a Subsidiary Loan Party) may liquidate or
dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders, and (vi) any Subsidiary that is not a Subsidiary
Loan Party may merge into the Person such Subsidiary was formed to acquire or
may sell, transfer, lease or otherwise dispose of all or substantially all of
its assts to any other Subsidiary that is not a Subsidiary Loan Party; provided,
that any such merger involving a Person that is not a wholly-owned Subsidiary
immediately prior to such merger shall not be permitted unless also permitted by
Section 7.4.
(b) The Borrower will not, and will not permit any of its
Subsidiaries (other than Monetization Subsidiaries) to, engage in any business
other than businesses of the type conducted by the Borrower and its Subsidiaries
on the date hereof and businesses reasonably related thereto.
Section 7.4. Investments, Loans, Etc. The Borrower will not, and
will not permit any of its Subsidiaries (other than Monetization Subsidiaries)
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly-owned Subsidiary prior to such merger), any Capital Stock
of any Person, evidence of Indebtedness or other securities (including any
option, warrant, or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any other investment or any other interest in, any other
Person, or purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person that constitute a business unit
(all of the foregoing being collectively called "Investments"), except:
(a) Investments (other than Permitted Investments) existing on the
date hereof and set forth on Schedule 7.4 (including Investments in
Subsidiaries), and refinancings, extensions of maturity and other modifications
of Items 2 and 3 listed on Schedule 7.4, in each case that do not increase the
outstanding principal amount thereof (immediately prior to giving effect to such
refinancings, extensions of maturity or other modifications);
(b) Permitted Investments subject to Investment Control Agreements
or Bank Account Control Agreements in favor of the Collateral Agent, on behalf
of itself, and the Lenders, the lender under the Pari Passu Credit Facility,
Citizens Bank of Pennsylvania, The Bank of Tokyo-Mitsubishi, Ltd., New York
Branch and any counterparties to Hedging Transactions that are entered into to
replace or refinance either the Tokyo Interest Rate Hedge Agreement or the
Citizens Interest Rate Hedge Agreement or otherwise subject to a perfected
security interest in favor of the Collateral Agent, on behalf of itself, and the
Lenders, the lender under the Pari Passu Credit Facility, Citizens Bank of
Pennsylvania, The Bank of Tokyo-Mitsubishi, Ltd., New York Branch and any
counterparties to Hedging Transactions that are entered into to replace or
refinance either the Tokyo Interest Rate Hedge
83
Agreement or the Citizens Interest Rate Hedge Agreement that has the highest
priority that can be obtained by perfecting such security interest under the
UCC;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
provided, that the aggregate amount of such Guarantees shall be subject to the
limitations set forth in clauses (d) and (e) of this Section 7.4;
(d) (i) non-cash Investments made by the Borrower in any Foreign
Subsidiary in the form of sales to such Foreign Subsidiary of Inventory on
credit terms in the ordinary course of business which are evidenced by
intercompany receivables or credit balances; (ii) Investments made by the
Borrower in any Foreign Subsidiary (x) to finance capital expenditures or
acquisitions, (y) to pay at maturity or refinance any Indebtedness of such
Foreign Subsidiary or (z) in the form of Guarantees of any Indebtedness of such
Foreign Subsidiary, in an aggregate amount for all such Investments not to
exceed $15,000,000 per Fiscal Year and (iii) other Investments in the form of
Guarantees of Indebtedness permitted by Section 7.1(f);
(e) other Investments made by the Borrower in any Subsidiary and by
any Subsidiary in the Borrower or in another Subsidiary; provided, that (A) the
aggregate amount of Investments by Loan Parties in or to, and Guarantees by Loan
Parties of Indebtedness of, Domestic Subsidiaries that are not Subsidiary Loan
Parties (including all such Investments and Guarantees existing on the Closing
Date) shall not exceed $1,000,000 in the aggregate at any time outstanding and
(B) the aggregate amount of Investments (other than Guarantees) by Loan Parties
in Foreign Subsidiaries shall not exceed $25,000,000 in the aggregate at any
time outstanding and any such Investment in the form of Guarantees are permitted
under clause (d) of this Section 7.4;
(f) Loans or advances to employees, officers or directors of the
Borrower or any Subsidiary in the ordinary course of business, including,
without limitation, for travel, relocation and related expenses; provided,
however, that the aggregate outstanding amount of all such loans and advances
does not exceed $10,000,000 at any time;
(g) Investments in connection with Monetization Transactions and
Customer Financings entered into in the ordinary course of business;
(h) other Investments which in the aggregate do not exceed
$10,000,000 in any Fiscal Year; provided, however, that to the extent any such
other Investments constitute an acquisition of all or substantially all of the
business or a line of business (whether by the acquisition of Capital Stock,
assets or a combination thereof of any other Person, the aggregate consideration
for such acquisition together with any related acquisitions shall not exceed
$10,000,000;
(i) Investments permitted by clauses (ii) through (vi) of Section
7.3;
(j) extensions of trade credit in the ordinary course of business;
(k) 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, renewals, refinancings and
replacements thereof;
84
(l) Investments by the Borrower or any Subsidiary as a result of
non-cash (excluding cash equivalents) consideration for Asset Sales permitted
under Section 7.6; provided, that the non-cash (excluding cash equivalents)
consideration for each such Asset Sale shall not exceed 25% of the total
consideration paid in connection with such Asset Sale;
(m) negotiable instruments held for collection or utility, workers'
compensation, performance and other similar deposits in the ordinary course of
business;
(n) Investments by the 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 a combination thereof)
of any other Person in an amount not to exceed $20,000,000 in the aggregate
during the term of this Agreement; provided, that (i) such business or line of
business is in substantially the same fields as the businesses of the Borrower
and its Subsidiaries, taken as a whole, conducted on the Closing Date and in
lines of business reasonably related thereto, (ii) such acquisition is made with
the approval of the board of directors of the Person to be acquired, or of the
percentage of ownership interests required by the charter documents of such
Person to approve any such acquisition, (iii) immediately after giving pro forma
effect to any such acquisition as though such acquisition had closed on the last
Business Day of the Fiscal Month immediately preceding delivery of the most
recently delivered Borrowing Base Certificate pursuant to Section 5.1(f), the
Borrowing Availability would be at least $10,000,000, (iv) immediately after
giving effect to the acquisition, no Default or Event of Default shall have
occurred and be continuing and (v) immediately after giving pro forma effect to
such acquisition as though the acquisition had closed on the first day of the
most recently ended four consecutive Fiscal Quarter period for which financial
statements have been delivered pursuant to Section 5.1, the Borrower would be in
compliance with the financial covenants provided for in Article VI as of the
most recent Fiscal Quarter in respect of which the Borrower is required to have
delivered a Compliance Certificate pursuant to Section 5.1(c); and
(o) Investments in joint ventures or customers (other than Customer
Financings) in order to facilitate the sale, lease or rental of goods or
services to such customers in an aggregate amount not to exceed $10,000,000 in
any single Investment, or $20,000,000 in the aggregate, outstanding at any time.
Section 7.5. Restricted Payments. The Borrower will not, and will
not permit its Subsidiaries (other than Monetization Subsidiaries) to, declare
or make, or agree to pay or make, directly or indirectly, any dividend on any
class of its Capital Stock, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption,
retirement, defeasance or other acquisition of, any shares of its Capital Stock
or Indebtedness subordinated to the Obligations of the Borrower or any Guarantee
thereof or any options, warrants, or other rights to purchase such Capital Stock
or such Indebtedness, whether now or hereafter outstanding (each, a "Restricted
Payment"), except for (a) dividends payable by the Borrower solely in shares of
any class of its common stock, (b) Restricted Payments made by any Subsidiary
Loan Party to the Borrower or to another Subsidiary Loan Party, (c) in the
absence of a Default or an Event of Default, the payment of regular cash
dividends in accordance with reasonable business practice in the good faith
judgment of the board of directors of the Borrower, (d) distributions of Capital
Stock (subject to compliance with the last paragraph of Section 7.1) upon the
exercise of the "Rights" as defined in the Rights Agreement, dated as of
85
May 24, 2000, between the Borrower and American Stock Transfer and Trust
Company, as it may be amended, supplemented or otherwise modified from time to
time and (e) the repurchase of up to $35,000,000 of the Senior Subordinated
Notes; provided that (i) immediately after giving pro forma effect to any such
repurchase as though the repurchase had closed on the last Business Day of the
Fiscal Month immediately preceding delivery of the most recently delivered
Borrowing Base Certificate pursuant to Section 5.1(f), the Borrowing
Availability would be at least $10,000,000, (ii) immediately after giving effect
to the repurchase, no Default or Event of Default shall otherwise have occurred
and be continuing and (iii) immediately after giving pro forma effect to any
such repurchase as though the repurchase had closed on the first day of the most
recently ended four consecutive Fiscal Quarter period for which financial
statements have been delivered pursuant to Section 5.1(a) or (b), the Borrower
would be in compliance with the financial covenants provided for in Article VI
as of the most recent Fiscal Quarter in respect of which the Borrower is
required to have delivered a Compliance Certificate pursuant to Section 5.1(c).
Section 7.6. Sale of Assets. The Borrower will not, and will not
permit any of its Subsidiaries (other than Monetization Subsidiaries) to,
convey, sell, lease, assign, transfer or otherwise dispose of, any of its
assets, business or property, other than cash, cash equivalents and Permitted
Investments (each an "Asset Sale"), whether now owned or hereafter acquired, or,
in the case of any Subsidiary (other than a Monetization Subsidiary), issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than to
the Borrower or a Subsidiary Loan Party (or to qualify directors if required by
applicable law), except:
(a) Asset Sales for fair market value of obsolete or worn out
property;
(b) Asset Sales of inventory, licensing of intellectual property (so
long as the representation in Section 4.11(b continues to be true), leases or
sub-leases of excess space in any of the Borrower's or any Subsidiary's owned or
leased real property, and leases or sales of equipment which constitute Customer
Financings in the ordinary course of business;
(c) Monetization Transactions entered into in the ordinary course of
business;
(d) (i) Asset Sales of assets or property not necessary for
operations with sale proceeds not to exceed $10,000,000 per Fiscal Year and (ii)
Asset Sales of assets or property not necessary for operations and constituting
a single transaction or series of related transactions with sale proceeds of
$1,000,000 or less;
(e) other Asset Sales in an aggregate amount not to exceed
$30,000,000; provided that, immediately after giving pro forma effect to any
such Asset Sale (including an exclusion from Consolidated EBITDA of the
Consolidated EBITDA generated by the assets or property sold and a reduction in
the Consolidated Net Funded Debt from the application of the proceeds from such
Asset Sale to the outstanding Revolving Credit Exposure of all Lenders) as
though such Asset Sale had closed on the first day of the most recently ended
four consecutive Fiscal Quarter period for which financial statements have been
delivered pursuant to Section 5.1, (i) the Borrowing Availability would be at
least $10,000,000 and (ii) the Leverage Ratio as of the most recent Fiscal
Quarter in respect of which the Borrower is required to have delivered a
Compliance Certificate pursuant to Section 5.1(c) would not be greater than (A)
5.5:1.0 if such Fiscal Quarter
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occurs during the 2004 Fiscal Year, (B) 4.5:1.0 if such Fiscal Quarter occurs
during the 2005 Fiscal Year, and (C) 3.5:1.0 if such Fiscal Quarter occurs after
the 2005 Fiscal Year and (iii) no Default or Event of Default shall otherwise
have occurred and be continuing;
(f) Asset Sales to the Borrower or any Subsidiary Loan Party;
(g) Asset Sales consisting of the sale of (i) the Sunnyside facility
located in Bedford, Pennsylvania, (ii) the ▇▇▇▇▇ ▇▇▇▇ facility located in
Bedford, Pennsylvania, (iii) the Gradall Orrville facility located in Ohio, and
(iv) assets reasonably related to any such facilities to the extent such assets
are not used by the Borrower or any of its Subsidiaries in any other part their
business; and
(h) (i) transactions which may constitute Asset Sales and are
permitted under Section 7.3 or (ii) transactions which may constitute Asset
Sales and are permitted under Section 7.9.
Section 7.7. Transactions with Affiliates. The Borrower will not,
and will not permit any of its Subsidiaries (other than Monetization
Subsidiaries) to, sell, lease or otherwise transfer any property or assets to,
or purchase, lease or otherwise acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
(a) at prices and on terms and conditions not less favorable to the Borrower or
such Subsidiary than could be obtained on an arm's-length basis from unrelated
third parties, and (b) transactions between or among the Borrower and any
Subsidiary Loan Party not involving any other Affiliates and transactions
between or among Subsidiaries that are not Subsidiary Loan Parties.
Section 7.8. Restrictive Agreements. The Borrower will not, and will
not permit any Subsidiary (other than any Monetization Subsidiary) to, directly
or indirectly, enter into any agreement that prohibits, restricts or imposes any
condition upon (a) the ability of the Borrower or any Subsidiary to create,
incur or permit any Lien upon any of its assets or properties, whether now owned
or hereafter acquired to secure the Obligations or any Indebtedness that
extends, renews, refinances or replaces the Obligations or (b) the ability of
any Subsidiary to pay dividends or other distributions with respect to its
common stock, to make or repay loans or advances to the Borrower or any other
Subsidiary, or to Guarantee Indebtedness of the Borrower or any other Subsidiary
or to transfer any of its property or assets to the Borrower or any Subsidiary
of the Borrower; provided, that (i) the foregoing shall not apply to,
prohibitions, restrictions or conditions imposed by (A) law, (B) this Agreement
or any other Loan Document, (C) the documents governing the Pari Passu Credit
Facility, so long as such documents permit the Borrower and its Subsidiaries to
create, incur or permit Liens securing the Obligations on the condition that the
Indebtedness under the Pari Passu Credit Facility is secured pari passu with the
Obligations, and the prohibitions, restrictions and conditions imposed therein
are no more restrictive than those contained herein, (D) the Subordinated Debt
Documents and the documents relating to the Senior Unsecured Notes as in effect
on the Closing Date, and (E) agreements governing Indebtedness permitted under
Section 7.1 to the extent incurred by Foreign Subsidiaries, (ii) the foregoing
shall not apply to customary prohibitions, restrictions and conditions contained
in agreements relating to the sale of a Subsidiary pending such sale, provided
such prohibitions, restrictions and conditions apply only to the Subsidiary that
is sold and such sale is permitted hereunder, (iii) clause (a) shall not apply
to prohibitions, restrictions or
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conditions imposed by any Capital Leases or operating leases entered into in
connection with sale and leaseback transactions permitted by Section 7.9 and any
agreement relating to secured Indebtedness permitted by this Agreement if such
prohibitions, restrictions and conditions apply only to the property or assets
leased under such Capital Lease or operating lease or securing Indebtedness or
assets reasonably related thereto, and (iv) clause (a) shall not apply to
customary provisions in leases and other contracts restricting the assignment
thereof.
Section 7.9. Sale and Leaseback Transactions. The Borrower will not,
and will not permit any of the Subsidiaries (other than Monetization
Subsidiaries) to, enter into any arrangement, directly or indirectly, whereby it
shall sell or transfer any property, real or personal, used or useful in its
business, whether now owned or hereinafter acquired, and thereafter rent or
lease such property or other property that it intends to use for substantially
the same purpose or purposes as the property sold or transferred, except that
the Borrower and its Subsidiaries may engage in any such transaction or
transactions in respect of which the aggregate Operating Lease Value and Capital
Lease Obligations outstanding at any time is not more than $25,000,000.
Section 7.10. Hedging Transactions. The Borrower will not, and will
not permit any of the Subsidiaries (other than Monetization Subsidiaries) to,
enter into any Hedging Transaction, other than Hedging Transactions entered into
in the ordinary course of business to hedge or mitigate risks to which the
Borrower or any Subsidiary is exposed in the conduct of its business or the
management of its liabilities. Solely for the avoidance of doubt, the Borrower
acknowledges that a Hedging Transaction entered into for speculative purposes or
of a speculative nature (which shall be deemed to include any Hedging
Transaction under which the Borrower or any of the Subsidiaries is or may become
obliged to make any payment (a) in connection with the purchase by any third
party of any common stock or any Indebtedness or (b) as a result of changes in
the market value of any common stock or any Indebtedness) is not a Hedging
Transaction entered into in the ordinary course of business to hedge or mitigate
risks.
Section 7.11. Payment of and Amendments to Senior Unsecured Notes
and Subordinated Debt.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to (i) prepay, redeem, repurchase or otherwise acquire for value
the Senior Unsecured Notes or any Subordinated Debt, or (ii) make any principal,
interest or other payments on any Subordinated Debt that is not expressly
permitted by the subordination provisions of the Subordinated Debt Documents,
unless otherwise permitted pursuant to Section 7.5 hereof.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, agree to or permit any amendment, modification or waiver of any
provision of the documents relating to the Senior Unsecured Notes or any
Subordinated Debt Document if the effect of such amendment, modification or
waiver is to (i) increase the interest rate on the Senior Unsecured Notes or the
Subordinated Debt or change (to earlier dates) the dates upon which principal
and interest are due thereon; (ii) alter the redemption, prepayment or
subordination provisions thereof; (iii) alter the covenants and events of
default in a manner that would make such provisions materially more onerous or
restrictive to the Borrower or any such Subsidiary; or (iv) otherwise increase
the obligations of the Borrower or any Subsidiary in respect of the Senior
Unsecured Notes or the Subordinated Debt or confer additional rights upon the
holders thereof which individually or in the
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aggregate would be materially adverse to the Borrower or any of its Subsidiaries
or adverse to the Administrative Agent or the Lenders.
Section 7.12. Accounting Changes; Fiscal Year. The Borrower will
not, and will not permit any of its Subsidiaries to, make any significant change
in accounting treatment or reporting practices, except as required or permitted
by GAAP, or change the Fiscal Year of the Borrower or of any of its
Subsidiaries, except to change the Fiscal Year of a Subsidiary to conform its
Fiscal Year to that of the Borrower.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.1. Events of Default. If any of the following events (each
an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or of
any reimbursement obligation with respect to any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount payable under clause (a) of this
Section 8.1) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in this Agreement or any other Loan
Document (including the Schedules attached thereto) shall prove to be incorrect
in any material respect when made or deemed made; or
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in Sections 5.2, 5.3 (with respect to the Borrower's
existence) or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those referred to in clauses
(a), (b) and (d) above) or any other Loan Document, and such failure shall
remain unremedied for thirty (30) days after the earlier of (i) any Responsible
Officer of the Borrower becoming aware of such failure, or (ii) notice thereof
having been given to the Borrower by the Administrative Agent or any Lender; or
(f) any default or event of default shall have occurred and be
continuing under the Subordinated Debt Documents (after the expiration of any
applicable grace period) or the validity or enforceability of any subordination
provision of any Subordinated Debt Document is disaffirmed by or on behalf of
any subordinated lender party thereto, or any Obligations fail to constitute
"Senior Indebtedness" for purposes of the applicable Subordinated Debt Document,
or all or any part of the Subordinated Debt is accelerated, is declared to be
due and payable or is required to be prepaid or redeemed, in each case prior to
the stated maturity thereof;
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(g) the Borrower or any Subsidiary (whether as primary obligor or as
guarantor or other surety) shall fail to pay any principal of, or premium or
interest on, any Material Indebtedness that is outstanding, when and as the same
shall become due and payable (whether at scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
without a written waiver after the applicable grace period, if any, specified in
the agreement or instrument evidencing or governing such Indebtedness; or any
other event shall occur or condition shall exist under any agreement or
instrument relating to such Material Indebtedness and shall continue without a
written waiver after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or permit the acceleration of, the maturity of such Material
Indebtedness; or any such Material Indebtedness shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or any
offer to prepay, redeem, purchase or defease such Indebtedness shall be required
to be made, in each case prior to the stated maturity thereof; provided that
this clause (g) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing such
Indebtedness in accordance with the terms and conditions of this Agreement so
long as such Indebtedness is immediately paid when due; provided, further, no
Default or Event of Default shall be deemed to have occurred hereunder if the
Borrower is unable, due to applicable law restricting investments in a Foreign
Subsidiary, to make an investment in such Foreign Subsidiary to fund the
repayment of such Material Indebtedness (the "Defaulted Material Foreign
Indebtedness"), until five (5) Business Days after an Event of Default would
otherwise have occurred under this clause (g) (the "Material Foreign
Indebtedness Cure Period");
(h) the Borrower, any Material Domestic Subsidiary or any Material
Foreign Subsidiary shall (i) commence a voluntary case or other proceeding or
file any petition seeking liquidation, reorganization or other relief under any
federal, state or foreign bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a custodian, trustee,
receiver, liquidator or other similar official of it or any substantial part of
its property, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (i) of
this Section, (iii) apply for or consent to the appointment of a custodian,
trustee, receiver, liquidator or other similar official for the Borrower or any
such Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors, or (vi)
take any action for the purpose of effecting any of the foregoing; or
(i) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Material Domestic Subsidiary or any Material
First-Tier Foreign Subsidiary or its debts, or any substantial part of its
assets, under any federal, state or foreign bankruptcy, insolvency or other
similar law now or hereafter in effect or (ii) the appointment of a custodian,
trustee, receiver, liquidator or other similar official for the Borrower or any
Material Domestic Subsidiary or any Material First-Tier Foreign Subsidiary or
for a substantial part of its assets, and in any such case, such proceeding or
petition shall remain undismissed, unstayed or unbonded for a period of sixty
(60) days or an order or decree approving or ordering any of the foregoing shall
be entered;
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(j) the Borrower or Material Domestic Subsidiary or any Material
First-Tier Foreign Subsidiary shall become unable to pay, shall admit in writing
its inability to pay, or shall fail to pay, its debts generally as they become
due; or
(k) an ERISA Event shall have occurred that when taken together with
other ERISA Events that have occurred, would reasonably be expected to result in
liability to the Borrower and the Subsidiaries in an aggregate amount exceeding
$5,000,000; or
(l) any judgment or order for the payment of money in excess of
$10,000,000 in the aggregate shall be rendered against the Borrower or any
Subsidiary, (other than a Monetization Subsidiary) and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be a period of thirty (30) consecutive days during
which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(m) any non-monetary judgment or order shall be rendered against the
Borrower or any Subsidiary that would reasonably be expected to have a Material
Adverse Effect, and there shall be a period of thirty (30) consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(n) a Change in Control shall occur or exist; or
(o) any material provision of any Subsidiary Guaranty Agreement
shall for any reason cease to be valid and binding on, or enforceable against,
any Loan Party, or any Loan Party shall so state in writing, or any Loan Party
shall seek to terminate its Subsidiary Guaranty Agreement; or
(p) Liens created under the Collateral Documents shall not be valid
and perfected Liens (other than by failure of the Administrative Agent or the
Collateral Agent to take any action) on a material portion of the Collateral; or
(q) any "Event of Default" as defined in any Loan Document has
occurred and is continuing;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent or Collateral
Agent may, and upon the written request of the Required Lenders shall, by notice
to the Borrower, take any or all of the following actions, at the same or
different times: (i) terminate the Commitments, whereupon the Commitment of each
Lender shall terminate immediately, (ii) declare the principal of and any
accrued interest on the Loans, and all other Obligations owing hereunder, to be,
whereupon the same shall become, due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower, (iii) exercise all remedies contained in any
other Loan Document, and (iv) exercise any other remedies available at law or in
equity; and that, if an Event of Default specified in either clause (g) or (h)
shall occur, the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon, and all
fees, and all other Obligations shall automatically become due and
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payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower.
Section 8.2. Application of Proceeds After Acceleration or Maturity.
Subject to Section 3.2 of the Intercreditor Agreement and notwithstanding any
other provisions of this Agreement, after the earlier of (a) acceleration of the
Obligations and (b) the Revolving Commitment Termination Date, all amounts
collected or received (including by way of set-off) by the Collateral Agent, the
Administrative Agent or any Lender through the exercise of any remedies on
account of amounts outstanding under any of the Loan Documents or in respect of
the Collateral shall be paid over or delivered as follows: first, to the fees,
indemnities and reimbursable expenses of the Administrative Agent, the
Collateral Agent, the Swingline Lender and the Issuing Bank then due and payable
pursuant to any of the Loan Documents, until the same shall have been paid in
full, allocated pro rata in accordance with the respective unpaid fees,
indemnities and expenses; second, to the reimbursable expenses, if any, of the
Lenders then due and payable pursuant to any of the Loan Documents, until the
same shall have been paid in full, allocated pro rata among the Lenders based on
their respective pro rata shares of the unpaid expenses; third, to accrued and
unpaid interest and fees due and payable to the Lenders under the terms of this
Agreement, until the same shall have been paid in full, allocated pro rata among
the Lenders based on their respective pro rata shares of such unpaid interest
and fees; fourth, to the aggregate outstanding principal amount of the Loans and
the LC Exposure incurred in connection with this Agreement, until the same shall
have been paid in full, allocated pro rata among the Lenders based on their
respective pro rata shares of the aggregate amount of such Loans and LC
Exposure; provided, however, that all amounts allocated to the contingent LC
Exposure pursuant to clause fourth shall be distributed to the Administrative
Agent, rather than to any Lenders, and held by the Administrative Agent in an
account in the name of the Administrative Agent for the benefit of the Issuing
Bank and the Lenders as cash collateral for such contingent LC Exposure, such
account to be administered in accordance with Section 2.22(g); and fifth, to all
other amounts owing to the Lenders pursuant to the terms of this Agreement and
the other Loan Documents, including without limitation, all indemnification
payments, pro rata based upon their respective shares of such amounts.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.1. Appointment of Administrative Agent.
(a) Each Lender irrevocably appoints SunTrust Bank as the
Administrative Agent and authorizes it to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent under this
Agreement and the other Loan Documents, together with all such actions and
powers that are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder or under the other Loan Documents by or
through any one or more sub-agents or attorneys-in-fact appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent or
attorney-in-fact may perform any and all of its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory provisions
set forth in this Article shall apply to any such sub-agent or attorney-in-fact
and the Related Parties of the Administrative Agent, any such sub-agent and any
such attorney-in-fact and shall
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apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative
Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with
Revolving Commitments with respect to any Letters of Credit issued by it and the
documents associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required Revolving Lenders
to act for the Issuing Bank with respect thereto; provided, that the Issuing
Bank shall have all the benefits and immunities (i) provided to the
Administrative Agent in this Article IX with respect to any acts taken or
omissions suffered by the Issuing Bank in connection with Letters of Credit
issued by it or proposed to be issued by it and the application and agreements
for letters of credit pertaining to the Letters of Credit as fully as if the
term "Administrative Agent" as used in this Article IX included the Issuing Bank
with respect to such acts or omissions and (ii) as additionally provided in this
Agreement with respect to the Issuing Bank.
Section 9.2. Nature of Duties of Administrative Agent. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it, its sub-agents or attorneys-in-fact with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 10.2) or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall not be responsible for the negligence or misconduct of any
sub-agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall not be deemed to have knowledge of any Default or
Event of Default unless and until written notice thereof (which notice shall
include an express reference to such event being a "Default" or "Event of
Default" hereunder) is given to the Administrative Agent by the Borrower or any
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements, or other terms and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent. The Administrative Agent may consult with
legal counsel concerning all matters pertaining to such duties.
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Section 9.3. Lack of Reliance on the Administrative Agent. Each of
the Lenders, the Swingline Lender and the Issuing Bank acknowledges 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 credit analysis and decision to enter into this Agreement. Each of
the Lenders, the Swingline Lender and the Issuing Bank also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder.
Section 9.4. Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
Section 9.5. Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed,
sent or made by the proper Person. The Administrative Agent may also rely upon
any statement made to it orally or by telephone and believed by it to be made by
the proper Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable for any
action taken or not taken by it in accordance with the advice of such counsel,
accountants or experts.
Section 9.6. The Administrative Agent in its Individual Capacity.
The bank serving as the Administrative Agent shall have the same rights and
powers under this Agreement and any other Loan Document in its capacity as a
Lender as any other Lender and may exercise or refrain from exercising the same
as though it were not the Administrative Agent; and the terms "Lenders",
"Required Lenders", "holders of Notes", or any similar terms shall, unless the
context clearly otherwise indicates, include the Administrative Agent in its
individual capacity. The bank acting as the Administrative Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Administrative Agent hereunder.
Section 9.7. Successor Administrative Agent.
(a) Subject to the appointment and acceptance of a successor as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Borrower. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Administrative Agent,
subject to the approval by the Borrower provided that no Default
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or Event of Default shall exist at such time. If no successor Administrative
Agent shall have been so appointed, and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent gives notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent, which
shall be a commercial bank or commercial finance company organized under the
laws of the United States of America or any state thereof or a bank which
maintains an office in the United States, having a combined capital and surplus
of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative
Agent hereunder by a successor, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Documents. If within forty-five (45) days after written
notice is given of the retiring Administrative Agent's resignation under this
Section 9.7, no successor Administrative Agent shall have been appointed and
shall have accepted such appointment, then on such forty-fifth (45th) day (i)
the retiring Administrative Agent's resignation shall become effective, (ii) the
retiring Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall
thereafter perform all duties of the retiring Administrative Agent under the
Loan Documents until such time as the Required Lenders appoint a successor
Administrative Agent as provided above. After any retiring Administrative
Agent's resignation hereunder, the provisions of this Article IX shall continue
in effect for the benefit of such retiring Administrative Agent and its
representatives and agents in respect of any actions taken or not taken by any
of them while it was serving as the Administrative Agent.
Section 9.8. Authorization to Execute other Loan Documents. Each
Lender hereby authorizes the Administrative Agent to execute on behalf of all
Lenders all Loan Documents other than this Agreement, including without
limitation all Collateral Documents and the Intercreditor Agreement.
Section 9.9. Appointment of Syndication Agent and Documentation
Agent. The Lenders hereby appoint Manufacturers and Traders Trust Company as
Syndication Agent and appoint Standard Federal Bank NA as Documentation Agent.
Each Lender agrees that the Syndication Agent and Documentation Agent shall have
no duties or obligations under any Loan Documents to any Lender or any Loan
Party.
ARTICLE X
MISCELLANEOUS
Section 10.1. Notices.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to any
party herein to be effective
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shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
If to the Borrower:
JLG Industries, Inc.
▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Executive Senior Vice President, Finance
and Chief Financial Officer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esquire
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Administrative Agent:
SunTrust Bank
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
:
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With a copy to: SunTrust Bank
Agency Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. E./ 25th Floor
Atlanta, Georgia 30308
Attention: Ms. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
and
King & Spalding LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Issuing Bank:
SunTrust Bank
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇. E./Mail Code 3706
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Swingline Lender:
SunTrust Bank
Agency Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇./▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To any other Lender: the address set forth on Annex I hereto
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices
and other communications shall be presumed to be received by a party hereto (i)
on the next Business Day if transmitted by a recognized overnight delivery
service, (ii) on the date of delivery if delivered by hand, or transmitted in
legible form by facsimile machine, and (iii) on the third Business Day after the
date sent by certified mail, return receipt requested; provided, that notices
delivered to the Administrative Agent, the Issuing Bank or the Swingline Lender
shall not be effective until actually received by such Person at its address
specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders herein
to receive certain notices by telephone is solely for the convenience and at the
request of the Borrower. The Administrative Agent and the Lenders shall be
entitled to rely on the authority of any Person purporting to be a Person
authorized by the Borrower to give such notice and the Administrative Agent and
Lenders shall not have any liability to the Borrower or other Person on account
of any action taken or not taken by the Administrative Agent or the Lenders in
reliance upon such
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telephonic notice. The obligation of the Borrower to repay the Loans and all
other Obligations hereunder shall not be affected in any way or to any extent by
any failure of the Administrative Agent and the Lenders to receive written
confirmation of any telephonic notice or the receipt by the Administrative Agent
and the Lenders of a confirmation which is at variance with the terms understood
by the Administrative Agent and the Lenders to be contained in any such
telephonic notice.
Section 10.2. Waiver; Amendments.
(a) No failure or delay by the Administrative Agent, the Issuing
Bank or any Lender in exercising any right or power hereunder or any other Loan
Document, and no course of dealing between the Borrower and the Administrative
Agent or any Lender, shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power or any abandonment or discontinuance
of steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies provided by law. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
the issuance of a Letter of Credit shall not be construed as a waiver of any
Default or Event of Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default or
Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the
other Loan Documents, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Borrower and the Required Lenders or the Borrower and the Administrative
Agent with the consent of the Required Lenders and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, that no amendment or waiver shall: (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii) reduce
the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the date fixed for any
payment of any principal of, or interest on, any Loan or LC Disbursement or
interest thereon or any fees hereunder or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date for the termination or
reduction of any Commitment, without the written consent of each Lender affected
thereby, (iv) change Section 2.21 (c) or (d) in a manner that would alter the
pro rata sharing of payments required thereby, without the written consent of
each Lender, (v) change any of the provisions of this Section or the definition
of "Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders which are required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
consent of each Lender; (vi) release any guarantor or limit the liability of any
such guarantor under any guaranty agreement, without the written consent of each
Lender; or (vii) release all or substantially all Collateral securing any of the
Obligations, without the written consent of each Lender; provided further, that
no such agreement shall amend, modify
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or otherwise affect the rights, duties or obligations of the Administrative
Agent, the Swingline Bank or the Issuing Bank, in their capacities as such
without the prior written consent of such Person.
Section 10.3. Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs
and expenses of the Administrative Agent and SunTrust Capital Markets, Inc., as
the arranger, including the reasonable fees and disbursements of counsel for the
Administrative Agent and SunTrust Capital Markets, Inc., as the arranger, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of the Loan Documents and any amendments,
modifications or waivers thereof (whether or not the transactions contemplated
in this Agreement or any other Loan Document shall be consummated) (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all reasonable out-of-pocket costs
and expenses (including, without limitation, the reasonable fees and
disbursements of outside counsel) incurred by the Administrative Agent, the
Issuing Bank or any Lender in connection with the enforcement or protection of
its rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made and any Letters of Credit issued
hereunder, including all such reasonable out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans or Letters
of Credit. The Borrower shall indemnify the Administrative Agent, the Issuing
Bank and each Lender against all reasonable out-of-pocket costs, losses,
liabilities, claims, damages, and expenses (collectively, "Losses") incurred by
them in connection with any investigation, litigation, or other proceedings
involving third parties and relating to the transactions contemplated hereby,
except for (x) Losses incurred in connection with actions brought by the
Borrower or any of its Affiliates where the Borrower or any of its Affiliates is
determined to be the prevailing party by a court of competent jurisdiction in a
final and nonappealable judgment and (y) instances of gross negligence or
willful misconduct on the part of the Indemnitee (as defined below).
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
(each, an "Indemnitee") against, and hold each of them harmless from, any and
all Losses, including the reasonable fees and disbursements of any counsel for
any Indemnitee, which may be incurred by or asserted against any Indemnitee
arising out of, in connection with or as a result of (i) the execution or
delivery of this Agreement or any other agreement or instrument contemplated
hereby, the performance by the parties hereto of their respective obligations
hereunder or the consummation of any of the transactions contemplated hereby,
(ii) any Loan or Letter of Credit or any actual or proposed use of the proceeds
therefrom (including any refusal by the Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials on or
from any property owned by the Borrower or any Subsidiary or any Environmental
Liability related in any way to the Borrower or any Subsidiary or (iv) any
claim, litigation, investigation or proceeding involving third parties and
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided,
that the Borrower shall not be obligated to indemnify any Indemnitee for any of
the foregoing arising out of (x) such Indemnitee's gross negligence or
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willful misconduct as determined by a court of competent jurisdiction in a final
and nonappealable judgment (y) a breach by an Indemnitee of its obligations
under the Loan Documents or (z) Losses incurred in connection with actions
brought by the Borrower or any of its Affiliates where the Borrower or any of
its Affiliates is determined to be the prevailing party by a court of competent
jurisdiction in a final and nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative Agent and
each of the Lenders harmless from and against, any and all present and future
stamp, documentary, and other similar taxes with respect to this Agreement and
any other Loan Documents, any collateral described therein, or any payments due
thereunder, and save the Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount required
to be paid to the Administrative Agent, the Issuing Bank or the Swingline Lender
under clauses (a), (b) or (c) hereof, each Lender severally agrees to pay to the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may
be, an amount equal to the unpaid amount multiplied by such Lender's Pro Rata
Share of all Commitments (determined as of the time that the unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided, that
the unreimbursed expense or indemnified payment, Loss, as the case may be, was
incurred by or asserted against the Administrative Agent, the Issuing Bank or
the Swingline Lender in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to actual or direct damages) arising out of, in connection with or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the transactions contemplated therein, any Loan or any Letter of Credit or the
use of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly
after written demand therefor.
Section 10.4. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and its Revolving Credit Exposure); provided that (i)
except in the case of an assignment of the entire
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remaining amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund with respect to a Lender, the aggregate amount of the
Commitment (which for this purpose includes Revolving Credit Exposure
outstanding thereunder) of the assigning Lender subject to each assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$1,000,000, (ii) each partial assignment shall be made as an assignment of a
proportionate, constant and not varying part of all the assigning Lender's
rights and obligations under this Agreement with respect to the Loan or the
Commitment assigned, and (iii) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $1,000, and the Eligible Assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire. Upon (i) the execution and delivery of the
Assignment and Acceptance by the assigning Lender and assignee Lender, (ii)
acceptance, recording, thereof by the Administrative Agent pursuant to paragraph
(c) of this Section, (iii) consent thereof from the Borrower to the extent
required pursuant to this clause (b) and (iv) if such assignee Lender is a
Foreign Lender, compliance by such Person with Section 2.20(e), from and after
the effective date specified in each Assignment and Acceptance, the Eligible
Assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 10.3. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (d) of this Section. If the consent of
the Borrower to an assignment or to an Eligible Assignee is required hereunder
(other than a consent to an assignment which does not meet the minimum
assignment thresholds specified in paragraph (b)(i) above or a consent required
by paragraph (b)(iv) above), the Borrower shall be deemed to have given its
consent five Business Days after the date notice thereof has actually been
delivered by the assigning Lender (through the Administrative Agent) to the
Borrower, unless such consent is expressly refused by the Borrower prior to such
fifth Business Day.
(c) Within five (5) Business Days after receipt of notice and
request for new notes, the Borrower shall execute and deliver to the
Administrative Agent, in exchange for a surrendered Note or Notes, a new Note or
Notes to the order of such assignee Lender 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 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 Borrower. The Administrative Agent, acting solely
for this purpose as an agent of the Borrower, shall maintain at one of its
offices in Atlanta, Georgia 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 Commitments of, and principal amount of the Loans owing to,
each Lender
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pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
Lenders at any reasonable time and at reasonable intervals and from time to time
upon reasonable prior notice.
(d) Any Lender may, without the consent of, or notice to, the
Borrower, the Administrative Agent, the Swingline Bank or the Issuing Bank sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Swingline Bank, the Issuing Bank 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. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided, that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver with respect to the following to the extent affecting
such Participant: (i) increase the Commitment of such Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement payable hereunder or reduce the rate of interest payable hereunder,
or reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the date fixed for any payment of any principal
of, or interest on, any Loan or LC Disbursement or interest thereon or any fees
hereunder or reduce the amount of, waive or excuse any such payment, or postpone
the scheduled date for the termination or reduction of any Commitment, without
the written consent of each Lender affected thereby, (iv) change Section 2.21(b)
or (c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender affected thereby, (v) change
any of the provisions of this Section or the definition of "Required Lenders" or
any other provision hereof specifying the number or percentage of Lenders which
are required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the consent of such
Lender; (vi) release any guarantor or limit the liability of any such guarantor
under any guaranty agreement without the written consent of such Lender except
to the extent such release is expressly provided under the terms of the Guaranty
Agreement; or (vii) release all or substantially all Collateral securing any of
the Obligations. Subject to paragraph (e) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 2.18, 2.19,
and 2.20 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.7
as though it were a Lender, provided such Participant agrees to be subject to
Section 10.7 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Section 2.18 and Section 2.20 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant
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is made with the Borrower's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.20 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.20(e) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank in accordance with applicable law;
provided that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
Section 10.5. Governing Law; Jurisdiction; Consent to Service of
Process.
(a) The Loan Documents shall be construed in accordance with and be
governed by the law (without giving effect to the conflict of law principles
thereof) of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the 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 and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any other Loan Document or the transactions
contemplated hereby or thereby, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York state court or, to the extent permitted by
applicable law, such Federal court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Administrative Agent, Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against the Borrower or its properties in the courts of
any jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding described in paragraph (b) of this Section and
brought in any court referred to in paragraph (b) of this Section. Each of the
parties hereto irrevocably waives, to the fullest extent permitted by applicable
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the service
of process in the manner provided for notices in Section 10.1. Nothing in this
Agreement or in any other Loan Document will affect the right of any party
hereto to serve process in any other manner permitted by law.
Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
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LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.7. Right of Setoff. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, each Lender and the Issuing Bank shall have the right, at any time or
from time to time upon the occurrence and during the continuance of an Event of
Default, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, to set off and
apply against all deposits (general or special, time or demand, provisional or
final) of the Borrower at any time held or other obligations at any time owing
by such Lender and the Issuing Bank to or for the credit or the account of the
Borrower against any and all Obligations held by such Lender or the Issuing
Bank, as the case may be, irrespective of whether such Lender or the Issuing
Bank shall have made demand hereunder and although such Obligations may be
unmatured. Each Lender and the Issuing Bank agree promptly to notify the
Administrative Agent and the Borrower after any such set-off and any application
made by such Lender and the Issuing Bank, as the case may be; provided, that the
failure to give such notice shall not affect the validity of such set-off and
application. Subject to the terms and conditions of the Intercreditor Agreement,
each Lender and the Issuing Bank agrees to apply all amounts collected from any
such set-off to the Obligations before applying such amounts to any other
Indebtedness or other obligations owed by the Borrower and any of its
Subsidiaries to such Lender or Issuing Bank.
Section 10.8. Counterparts; Integration. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the Fee Letters, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent constitute
the entire agreement among the parties hereto and thereto regarding the subject
matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters.
Section 10.9. Survival. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the other Loan
Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent, the Issuing Bank or any
Lender may have had notice or
104
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.18, 2.19, 2.20, and 10.3 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof, with
respect to any matters that arose prior to the date of termination of this
Agreement.
Section 10.10. Severability. Any provision of this Agreement or any
other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
Section 10.11. Confidentiality. Each of the Administrative Agent,
the Issuing Bank and each Lender agrees to take normal and reasonable
precautions to maintain the confidentiality of any non-public information
provided to it by the Borrower or any Subsidiary or any Person on their behalf,
except that such information may be disclosed (i) to any Related Party of the
Administrative Agent, the Issuing Bank or any such Lender, including without
limitation accountants, legal counsel and other advisors (in which case the
Administrative Agent, the Issuing Bank or any such Lender shall cause all such
Related Parties to hold all such information confidential in accordance with the
provisions of this Section 10.11), (ii) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (iii) to the
extent requested by any regulatory agency or authority, (iv) to the extent that
such information becomes publicly available other than as a result of a breach
of this Section, or which becomes available to the Administrative Agent, the
Issuing Bank, any Lender or any Related Party of any of the foregoing on a
non-confidential basis from a source other than the Borrower, (v) in connection
with the exercise of any remedy hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder, and (ix)
subject to provisions substantially similar to this Section 10.11, to any actual
or prospective assignee or Participant, or (vi) with the consent of the
Borrower. Any Person required to maintain the confidentiality of any information
as provided for in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such information as such Person would accord its
own confidential information. Notwithstanding anything to the contrary, the
Borrower, the Administrative Agent, and the Lenders, and each of their Related
Parties may disclose to any and all persons, beginning immediately upon
commencement of discussions and without limitation of any kind, the U.S. federal
income tax treatment and tax structure of the Agreement and all materials of any
kind (including opinions or other tax analyses) that are provided to the
Borrower, the Administrative Agent and the Lenders relating to such U.S. tax
treatment and tax structure.
Section 10.12. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges
105
and other amounts which may be treated as interest on such Loan under applicable
law (collectively, the "Charges"), shall exceed the maximum lawful rate of
interest (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by a Lender holding such Loan in accordance with applicable
law, the rate of interest payable in respect of such Loan hereunder, together
with all Charges payable in respect thereof, shall be limited to the Maximum
Rate and, to the extent lawful, the interest and Charges that would have been
payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Rate to the date of repayment, shall
have been received by such Lender.
Section 10.13. Waiver of Effect of Corporate Seal. The Borrower
represents and warrants that neither it nor any other Loan Party is required to
affix its corporate seal to this Agreement or any other Loan Document pursuant
to any requirement of law or regulation, agrees that this Agreement is delivered
by Borrower under seal and waives any shortening of the statute of limitations
that may result from not affixing the corporate seal to this Agreement or such
other Loan Documents.
(remainder of page left intentionally blank)
106
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
JLG INDUSTRIES, INC., as
Borrower
By___________________________
Name:
Title:
SUNTRUST BANK,
as Administrative Agent, Issuing Bank,
Swingline Lender and as a Lender
By___________________________________
Name:
Title:
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
MANUFACTURERS AND TRADERS TRUST
COMPANY, as Syndication Agent and as a
Lender
By___________________________
Name:
Title:
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
STANDARD FEDERAL BANK NA,
as Documentation Agent and as a Lender
By___________________________
Name:
Title:
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
SIEMENS FINANCIAL SERVICES, INC.,
as a Lender
By___________________________
Name:
Title:
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
CITIZENS BANK OF PENNSYLVANIA,
as a Lender
By___________________________
Name:
Title:
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
▇▇▇▇▇▇ TRUST & SAVINGS BANK,
as a Lender
By___________________________
Name:
Title:
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
NATIONAL CITY BANK OF
PENNSYLVANIA, as a Lender
By___________________________
Name:
Title:
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By___________________________
Name:
Title:
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
CREDIT SUISSE FIRST BOSTON,
as a Lender
By___________________________
Name:
Title:
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
Annex I
COMMITMENTS AND ADDRESSES FOR NOTICES
Revolving
Lender Commitment Address
------ ---------- -------
SunTrust Bank $42,500,000 See Section 10.1
Manufacturers and Traders
Trust Company $25,000,000 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone No.: 717/▇▇▇-▇▇▇▇
Telecopy No.: 717/771-4914
Standard Federal
Bank NA $25,000,000 ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: 248/▇▇▇-▇▇▇▇
Telecopy No.: 248/637-5003
Siemens Financial
Services, Inc. $17,500,000 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: 908/▇▇▇-▇▇▇▇
Telecopy No.: 908/575-4060
Citizens Bank
of Pennsylvania $15,000,000 ▇▇ ▇. ▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: 610/▇▇▇-▇▇▇▇
Telecopy No.: 610/736-6908
▇▇▇▇▇▇ Trust &
Savings Bank $15,000,000 ▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: 312/▇▇▇-▇▇▇▇
Telecopy No.: 312/461-2591
National City Bank
of Pennsylvania $15,000,000 ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: W. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: 412/▇▇▇-▇▇▇▇
Telecopy No.: 412/644-6224
The CIT GROUP/
Business Credit, Inc. $10,000,000 The CIT Group/Business
Credit, Inc.
Two Wachovia Center
23 Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Account Manager
Telephone No.:__________
Telecopy No.:__________
Credit Suisse
First Boston $10,000,000 ___________________
___________________
Attn:_______________
Telephone No.:__________
Telecopy No.:__________
Schedule I
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
--------------------------------------------------------------------------------------------------------
Pricing Leverage Ratio Applicable Margin Applicable Margin Applicable
Level for Eurocurrency for Base Rate Percentage for
Loans Loans Commitment
Fee
--------------------------------------------------------------------------------------------------------
I Greater than 4.5:1.00 2.75% per annum 1.25% per annum 0.50% per annum
--------------------------------------------------------------------------------------------------------
II Less than or equal to 2.50% per annum 1.00% per annum 0.50% per annum
4.5:1.00 but greater
than 4.0:1.00
--------------------------------------------------------------------------------------------------------
III Less than or equal to 2.25% per annum 0.75% per annum 0.50% per annum
4.0:1.00 but greater
than 3.5:1.00
--------------------------------------------------------------------------------------------------------
IV Less than or equal 1.75% per annum 0.25% per annum 0.40% per annum
to 3.5:1.00 but
greater than 3.0:1.0
--------------------------------------------------------------------------------------------------------
V Less than or equal to 1.50% per annum 0.00% per annum 0.30% per annum
3.0:1.0
--------------------------------------------------------------------------------------------------------
SCHEDULE II
EXISTING LETTERS OF CREDIT
Letter of Amount of Letter of Beneficiary Applicant
Credit Credit
Number
F841544 $125,000.00 Wachovia Bank National Gradall Company
Association
F841545 $858,270.00 Wachovia Bank National Gradall Company
Association
F841854 $858,270.00 AKBank Gradall Company
F841547 $1,696,000.00 Wachovia Bank National Borrower
Association
F841549 $326,487.60 Wachovia Bank National Borrower
Association
F841633 $140,000.00 ABN Amro Borrower
F841726 $586,600.00 Travelers Indemnity Borrower
F841639 $6,200,000.00 CommonWealth Borrower
SCHEDULE III
EXISTING SYNTHETIC LEASES
1. That certain lease agreement dated as of January 28, 2000 by and
between Borrower and SunTrust Bank. (Torrid Lease)
2. That certain lease agreement dated as of January 26, 2001, by and
between JLG Equipment Services Inc. and SunTrust Bank. (EQS #1)
3. That certain lease agreement dated as of July 28, 2000 by and between
Borrower, as successor by merger to Gradall Orrville Company and SunTrust Bank.
(Plant Equipment at Orrville)