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Exhibit 4.9
AMENDMENT NO. 2 AND JOINDER TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 2 AND JOINDER TO CREDIT AGREEMENT (this
"Amendment No. 2") is made the 4th day of October, 2001, by and among JLG
INDUSTRIES, INC., a Pennsylvania corporation ("JLG"), and certain of its
subsidiaries listed on Schedule 1 to the Credit Agreement (as defined below)
(each, together with JLG, individually a "Borrower" and individually and
collectively, the "Borrowers"); the Lenders listed on Schedule 2 to the Credit
Agreement; First Union National Bank, as administrative agent and documentation
agent ("Administrative Agent") and BankOne, Michigan, as syndication agent
("Syndication Agent") and ACCESS FINANCIAL SOLUTIONS, INC., a Maryland
corporation ("AFS").
BACKGROUND
Borrowers, Lenders, Administrative Agent, Syndication Agent and The
Chase Manhattan Bank, as the former documentation agent, entered into a Working
Capital Credit Agreement dated December 16, 1999, as amended by Amendment No. 1
to and Consent and Waiver under Credit Agreement dated June 30, 2000 (as
amended, as so amended hereby and as may be further amended from time to time,
the "Credit Agreement") for use by the Borrowers to support working capital and
for general corporate purposes (excluding acquisitions).
On August 1, 2001, JLG established the wholly-owned Subsidiary AFS.
From and after August 1, 2001, AFS will enter into all AFS Financing Agreements
(as defined below) with customers of JLG and its Subsidiaries. The applicable
Borrower will sell the applicable inventory to AFS at the sale price to the
customer at the time AFS enters into the AFS Financing Agreement with the
customer. The receivables created by these AFS Financing Agreements will be
reflected on the books of AFS.
The AFS Financing Agreements require customers to make scheduled
payments to AFS, with additional charges as set forth therein. The customer is
responsible for insurance, taxes and maintenance of the equipment, and the
customer bears the risk of casualty to or loss of the equipment. The customer
must list on Annex A to the AFS Financing Agreement those states in which the
customer plans to use the equipment (which must be in the United States). AFS
may file UCC-1 financing statements against the customer. By executing the AFS
Financing Agreement, the customer and AFS agree that the equipment remains
personal property, even if it is affixed to realty. The customer also agrees to
keep the equipment free of liens, except in favor of AFS. Subject to compliance
with the terms and conditions of the AFS Financing Agreement, the customer may
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sublease the equipment for a period of less than twelve months.
The Borrowers, Lenders, Administrative Agent and Syndication Agent
have agreed to make certain amendments to the Credit Agreement and grant certain
consents under the Credit Agreement, so as to permit the AFS Financing
Agreements, to join AFS as a Borrower, and to make certain other amendments to
the Credit Agreement, each as set forth herein and subject to the terms and
conditions hereof.
In consideration of the foregoing and the premises and the
agreements hereinafter set forth, and intending to be legally bound hereby,
effective as of the Amendment No. 2 Effective Date, the parties hereto agree as
follows:
1. Definitions
a. General Rule. Unless otherwise defined herein, terms used
herein which are defined in the Credit Agreement shall have the respective
meanings assigned to such terms in the Credit Agreement.
b. Additional Definitions. The following definitions are
hereby added to Section 1.1 of the Credit Agreement to read in their entirety as
follows:
"AFS" means Access Financial Solutions, Inc., a Maryland
corporation and a Wholly-Owned Subsidiary of JLG.
"AFS Financing Agreement(s)"means any agreement between AFS
and a customer evidencing a Customer Financing, of which ninety
percent (90%) will have a term no longer than 72 months and one
hundred percent (100%) will have a term no longer than 84 months,
documented under one of several standardized forms of agreement in
substantially the form provided to the Administrative Agent with
such terms and conditions as determined by AFS in good faith to be
commercially reasonable. As of the Amendment No. 2 Effective Date,
Administrative Agent has been provided a form of standardized
financing lease and conditional sale agreement.
"Amendment No. 2" means the Amendment No. 2 to Credit
Agreement by and among Borrowers, Lenders, Administrative Agent
and Syndication Agent, dated October 4th, 2001.
"Amendment No. 2 Effective Date" means the date on which
the conditions set forth in Paragraph 20 of Amendment No. 2 have
been satisfied.
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"Customer Financing(s)" means any operating lease, financing
lease, synthetic lease or conditional sale agreement pursuant to
which JLG or any of its Subsidiaries leases or conditionally sells
new or used equipment either manufactured or remanufactured by JLG
or any of its Subsidiaries, but shall not include (i) any open
accounts receivable from the sale of equipment, (ii) any other
accounts receivable and related rights sold pursuant to the PNC
Securitization or other Securitization permitted under the Credit
Agreement, or (iii) any operating lease permitted under Section
9.6(e) (describing certain leases with a term of less than twelve
months).
"Customer Financing Value" means the aggregate outstanding
book value of all Customer Financings as reflected from time to time
on JLG's Consolidated financial statements.
"Non-Recourse Securitization(s)" means Securitizations with
respect to which AFS incurs no Guaranty Obligations.
"Non-Recourse Syndication(s)" means Syndications with respect
to which AFS incurs no Guaranty Obligations.
"PNC Securitization" has the meaning assigned to it in
Amendment No. 1.
"Recourse Securitization(s)" means Securitizations with
respect to which AFS incurs some Guaranty Obligation.
"Recourse Syndication(s)" means Syndications with respect to
which AFS incurs some Guaranty Obligation.
"Restructuring Charge Addback" means the charges related to
the restructuring of the Borrowers and, as of the Amendment No. 2
Effective Date, are approved by Administrative Agent in the amended
and restated definitions of "EBIT" and "EBITDA" in Amendment No. 2
and set forth in the column titled "Addback" on Schedule 1 to
Amendment No. 2.
"Syndication(s)" means any sale or assignment for value in the
ordinary course of business by AFS to a third party of all or any
portion of AFS's interest in AFS Financing Agreements and related
equipment and documentation.
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c. Amended Definitions. The following definitions found in
Section 1.1 of the Credit Agreement are hereby amended and restated to read in
their entirety as follows:
"EBIT" means, for the most recent Rolling Period, Consolidated
net income of JLG and its Subsidiaries for such period, plus
interest expense and taxes for such period, and for the fiscal
quarters ending October 27, 2001, January 26, 2002 and April 27,
2002, the Restructuring Charge Addback (if within four fiscal
quarters of when the corresponding charge was made) in each case to
the extent as defined in accordance with GAAP and, if applicable, to
the extent each has been deducted in determining net income.
"EBITDA" means, for the most recent Rolling Period,
Consolidated net income of JLG and its Subsidiaries for such period,
plus interest expense, taxes, depreciation and amortization for such
period, and for the fiscal quarters ending October 27, 2001, January
26, 2002 and April 27, 2002, the Restructuring Charge Addback (if
within four fiscal quarters of when the corresponding charge was
made) in each case to the extent as defined in accordance with GAAP
and, if applicable, to the extent each has been deducted in
determining net income. Notwithstanding anything to the contrary set
forth herein, if for any Rolling Period, a Borrower shall have
consummated an acquisition of a business, EBITDA shall be calculated
on a pro forma basis as if the acquisition had taken place on the
first day of such Rolling Period.
"Securitization(s)" means a financing arrangement, a component
of which is a liquidity facility under which no Borrower is a
borrower or a guarantor (except to the extent of any Guaranty
Obligations permitted under Amendment No. 2), whereby a Borrower or
Borrowers sell portions of its/their accounts receivable and related
rights to a Securitization Subsidiary, subject to certain
representations warranties, covenants and indemnity obligations,
which will in turn sell such receivables and related rights to a
Purchaser, in each case without recourse (except to the extent of
any Guaranty Obligations permitted under Amendment No. 2), but
subject to certain representations, warranties, covenants and
indemnity obligations. Securitizations include both Recourse
Securitizations and Non-Recourse Securitizations.
2. Joinder of AFS. AFS is a direct Subsidiary of JLG. As of the
Amendment No. 2 Effective Date, AFS is hereby joined as a Borrower under the
Credit Agreement, and in
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furtherance thereof:
a. AFS hereby expressly agrees that it shall be bound by all
terms and conditions of the Credit Agreement and shall be liable, jointly and
severally with all other Borrowers, for all indebtedness and obligations
thereunder and under the Notes and other documents executed in connection with
the Credit Agreement.
b. AFS shall execute and deliver herewith a Joinder to each
Revolving Credit Note in favor of each Lender in the form of Exhibit A attached
hereto (collectively, the "Joinders to Revolving Notes").
c. Schedule 1 to the Credit Agreement (Borrowers) is hereby
amended and restated in its entirety as set forth on Schedule 2 attached hereto.
d. To take into effect the joinder of AFS as a Borrower,
Schedules 5.1(a) through 9.4 to the Credit Agreement are hereby amended and
restated in their entirety as set forth on Schedules 5.1(a) through 9.4 attached
hereto.
3. Amendment and Restatement of Section 3.1(c) (Interest; Applicable
Margin). As of the Amendment No. 2 Effective Date, Section 3.1(c) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
c. Applicable Margin. The Applicable Margin provided for in
Section 3.1(a) with respect to the Loans (the "Applicable Margin")
shall be determined by reference to the Leverage Ratio as of the end
of the fiscal quarter immediately preceding the delivery of the
applicable Officer's Compliance Certificate as follows:
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Level Leverage Ratio Applicable Margin
----- -------------- -----------------
I greater than or 162.5 bps
equal to 3.0
II greater than or 112.5 bps
equal to 2.5
and less than
3.0
III greater than or 100.0 bps
equal to 2.0
and less than
2.5
IV greater than or 87.5 bps
equal to 1.5
and less than
2.0
V greater than or 70.0 bps
equal to 1.0
and less than
1.5
VI less than 1.0 55.0 bps
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent on: (i) the third (3rd) Business Day after receipt by the
Administrative Agent of quarterly financial statements for JLG and its
Subsidiaries and the accompanying Officer's Compliance Certificate setting forth
the Leverage Ratio of the Borrowers and their Subsidiaries as of the most recent
fiscal quarter end and (ii) the date upon which the Administrative Agent
confirms to JLG by written notice that it has received formal and final approval
by Required Lenders for Amendment No. 2, at which time the Applicable Margin
shall be the highest Applicable Margin until an adjustment is otherwise
permitted hereunder. Subject to Section 3.1(d), in the event the Borrowers fail
to deliver such financial statements and certificate within the time required by
Section 6.1 hereof, the Applicable Margin may, at the discretion of the
Administrative Agent, be the highest Applicable Margin set forth above until the
delivery of such financial statements and certificate.
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4. Consent to AFS Financing Agreement Transactions and Customer
Financing Transactions. On and after the Amendment No. 2 Effective Date, AFS
will enter into all AFS Financing Agreements with customers of JLG and its
Subsidiaries. The applicable Borrower will sell the applicable equipment to AFS
at the sale price to the customer at the time AFS enters into the AFS Financing
Agreement with the customer. The receivables created by these AFS Financing
Agreements will be reflected on the books of AFS. After the Amendment No. 2
Effective Date, any Borrower may enter into Customer Financing transactions with
customers to the extent permitted by Section 7.21 of the Credit Agreement.
a. Section 9.3. Section 9.3 prohibits Borrowers from creating
or incurring a Lien on any of its assets, subject to certain exceptions. In
connection with an AFS Financing Agreement, AFS, as secured party, may create or
incur Liens against equipment sold in connection with AFS Financing Agreements.
In addition, AFS, as secured party, will file UCC-1 financing statements against
all customers in connection with AFS Financing Agreements with terms longer than
one year. Such actions may violate Section 9.3. Lenders hereby consent to: (i)
the creation of liens by AFS, as secured party, against equipment sold in
connection with AFS Financing Agreements and (ii) the filing of UCC-1 financing
statements by AFS, as secured party, in connection with AFS Financing
Agreements, which reference equipment owned by, or formerly owned by, AFS as
collateral. In addition, Lenders also consent to the possible creation of liens
and filing of UCC-1s by a Borrower as a secured party in connection with
Customer Financing transactions.
b. Section 9.4(a). The contribution of the equipment by JLG or
another Borrower to AFS may be characterized as either a loan to or an
investment in AFS. Section 9.4 of the Credit Agreement prohibits loans and
investments by a Borrower in any Person, subject to certain exceptions;
provided, however, that Section 9.4(a) permits loans and investments in
wholly-owned Subsidiaries that are Borrowers (which includes AFS). Therefore,
neither a consent or waiver under this provision is required, including in
connection with contributions of equipment in connection with Customer Financing
transactions.
c. Section 9.6.
i. The contribution or sale of the equipment by JLG or
another Borrower to AFS may be characterized as a transfer of assets by JLG or
another Borrower to AFS. Section 9.6 prohibits the transfer of assets by a
Borrower; provided, however, that Section 9.6(c) of the Credit Agreement permits
the transfer of assets by a Borrower to a Borrower or any Wholly- Owned
Subsidiary of a Borrower (which includes AFS). Therefore, neither a consent or
waiver under this provision is required, including in connection with
contributions of equipment in connection with Customer Financing transactions.
ii. Section 9.6 of the Credit Agreement prohibits
Borrowers from leasing their assets, subject to certain baskets and exceptions.
The AFS Financing Agreements to
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be entered into by AFS permit the customers to sublease the financed equipment
for a term no longer than one year. Lenders hereby consent to subleases (or
leases in connection with conditional sale agreements) of the equipment by
customers in accordance with the terms of the AFS Financing Agreements. Lenders
also consent to subleases (or leases in connection with conditional sale
agreements) in connection with Customer Financing transactions.
iii. Amendment and Restatement of Section 9.6(f). Section
9.6 of the Credit Agreement prohibits Borrowers from leasing or selling any of
their property or assets, subject to certain baskets and exceptions. Prior to
the Amendment No. 2 Effective Date, Section 9.6(f) permitted leases by Borrowers
and Subsidiaries up to $100,000,000 under certain circumstances. Lenders,
Administrative Agent and Borrowers hereby agree that as of the Amendment No. 2
Effective Date, Section 9.6 is amended and restated in its entirety as follows:
(f) Customer Financings; provided, that, to the extent permitted by
Section 7.21 hereof: (i) the Customer Financing Value of all
Customer Financings (other than AFS Financing Agreements) reflected
on JLG's Consolidated financial statements does not exceed Fifteen
Million Dollars ($15,000,000) at any time and (ii) the Customer
Financing Value of all AFS Financing Agreements reflected on JLG's
Consolidated financial statements does not exceed: (A) One Hundred
and Fifty Million Dollars ($150,000,000) prior to August 1, 2002 or
(B) Zero Dollars ($0) on or after August 1, 2002; provided further,
that a Customer Financing shall not be included in such amount if it
is sold to an unaffiliated third party, except to the extent of any
recourse liabilities related to such sale required in accordance
with GAAP to be reflected on JLG and its Subsidiaries' Consolidated
financial statements.
5. Consent to AFS Securitizations and Syndications.
a. Non-Recourse Securitizations and Syndications. So long as
no Event of Default exists and is continuing or would be created thereby,
Lenders hereby consent as follows subject to the following terms and conditions:
i. Non-Recourse Securitizations; Debt. JLG and AFS have
informed Administrative Agent that AFS intends to enter into Non-Recourse
Securitizations in connection with the sale of Receivables from AFS Financing
Agreements. Such Non-Recourse Securitizations are permitted under the terms and
conditions set forth in Paragraph 6 of Amendment No. 1 to and Consent and Waiver
under Credit Agreement dated June 30, 2000 by and among Borrowers, Lenders and
Administrative Agent, including a $100,000,000 limitation on Debt, which is
otherwise prohibited by Section 9.1 of the Credit Agreement. Lenders hereby
consent to additional Debt related to: (i) Non-Recourse Securitizations in
connection with AFS Financing
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Agreements not otherwise permitted under the Credit Agreement and (ii) other
sales or discounts without recourse of accounts receivable in connection with
AFS Financing Agreements permitted by Section 9.6(d) of the Credit Agreement,
either singly or in the aggregate, which sales or discounts are not otherwise
permitted under the Credit Agreement (provided, however, that with respect to
sales or discounts without recourse of accounts receivable referenced in clause
(ii) above, "outstanding" means those sold or discounted accounts receivable
which are by their terms not due).
ii. Non-Recourse Securitizations; Liens; Sales of Assets;
Restrictive Agreements; Securitization Subsidiaries. Non-Recourse
Securitizations are permitted under Sections 9.3 (Limitations on Liens), 9.6
(Limitations on Sales of Assets) and Section 9.11 (Restrictive Agreements) of
the Credit Agreement under the terms and conditions of the consents and waivers
(including without limitation the requirements of prior notice and delivery of
an opinion of counsel) set forth in Paragraph 6 of Amendment No. 1, as amended
hereby. In addition, the consents and waivers of Lenders with respect to
Securitization Subsidiaries in Paragraph 6 of Amendment No. 1, as amended
hereby, also apply to Non-Recourse Securitizations.
iii. Non-Recourse Syndications; Liens. Section 9.3 of the
Credit Agreement prohibits the creation or incurrence of Liens on Borrowers'
assets, except to the extent of exceptions described therein. Upon a
Non-Recourse Syndication, Liens in favor of AFS would be assigned to the
purchaser, together with any existing UCC-1 financing statements. Lenders hereby
acknowledge and agree that purchasers of syndicated AFS Financing Agreements
will hold Liens against equipment formerly owned by AFS.
iv. Non-Recourse Syndications; Sale of Assets. Section
9.6 of the Credit Agreement prohibits the Borrowers from conveying, selling,
assigning, transferring, or otherwise disposing of any of their property or
assets, except to the extent of exceptions described therein. A Non-Recourse
Syndication is a sale of AFS's interest in an AFS Financing Agreement and
related equipment and documentation to another party. Lenders hereby consent to
AFS's sale of its interest in AFS Financing Agreements and related equipment and
documentation in connection with Non-Recourse Syndications.
b. Recourse Securitizations and Syndications. JLG and AFS have
informed Administrative Agent that AFS, JLG or a Subsidiary may be required to
provide credit enhancement with recourse in connection with the Securitization
or Syndication of certain AFS Financing Agreements. Such recourse is expected to
be no more than twenty percent (20%) of the purchase price of the underlying
equipment, although the specific Securitization or Syndication may further limit
the amount of the recourse to less than twenty percent (20%). Twenty percent
(20%) caps the practical amount of recourse exposure, because AFS's loss would
be reduced by the amount of the proceeds from the resale of the underlying
equipment. AFS tracks all Securitizations and Syndications and measures the
amount of this recourse. Section 9.2 of the Credit Agreement prohibits Borrowers
from incurring, assuming or suffering to exist any Guaranty Obligations (which
include such recourse arising from Securitizations and Syndications). So long as
no Event of Default
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exists and is continuing or would be created thereby, Lenders hereby agree and
consent to Recourse Securitizations and Recourse Syndications, subject to the
following terms and conditions; provided, that the aggregate Guaranty
Obligations outstanding at any time with respect to such Recourse
Securitizations and Recourse Syndications do not exceed: (i) $30,000,000 during
the fiscal year ending July 31, 2002; (ii) $60,000,000 during the fiscal year
ending July 31, 2003; and (iii) $100,000,000 during the fiscal year ending July
31, 2004.
i. Recourse Securitizations; Debt. JLG and AFS have
informed Administrative Agent that AFS intends to enter into Recourse
Securitizations in connection with the sale of Receivables from AFS Financing
Agreements. Such Recourse Securitizations are permitted under the terms and
conditions set forth in Paragraph 6 of Amendment No. 1 to and Consent and Waiver
under Credit Agreement dated June 30, 2000 by and among Borrowers, Lenders and
Administrative Agent, including a $100,000,000 limitation on Debt, which is
otherwise prohibited by Section 9.1 of the Credit Agreement. Lenders hereby
consent to additional Debt related to: (i) Recourse Securitizations in
connection with AFS Financing Agreements not otherwise permitted under the
Credit Agreement and (ii) other sales or discounts without recourse of accounts
receivable in connection with AFS Financing Agreements permitted by Section
9.6(d) of the Credit Agreement, either singly or in the aggregate, which sales
or discounts are not otherwise permitted under the Credit Agreement (provided,
however, that with respect to sales or discounts without recourse of accounts
receivable referenced in clause (ii) above, "outstanding" means those sold or
discounted accounts receivable which are by their terms not due).
ii. Recourse Securitizations; Liens; Sales of Assets;
Restrictive Agreements; Securitization Subsidiaries. Recourse Securitizations
are permitted under Sections 9.3 (Limitations on Liens), 9.6 (Limitations on
Sales of Assets) and Section 9.11 (Restrictive Agreements) of the Credit
Agreement under the terms and conditions of the consents and waivers set forth
in Paragraph 6 of Amendment No. 1, as amended hereby (including without
limitation the requirements of prior notice and delivery of an opinion of
counsel.) In addition, the consents and waivers of Lenders with respect to
Securitization Subsidiaries in Paragraph 6 of Amendment No. 1, as amended
hereby, also apply to Recourse Securitizations.
iii. Recourse Syndications; Liens. Section 9.3 of the
Credit Agreement prohibits the creation or incurrence of Liens on Borrowers'
assets, except to the extent of exceptions described therein. Upon a Recourse
Syndication, Liens in favor of AFS would be assigned to the purchaser, together
with any existing UCC-1 financing statements. Lenders hereby acknowledge and
agree that purchasers of syndicated AFS Financing Agreements will hold Liens
against equipment formerly owned by AFS.
iv. Recourse Syndications; Sale of Assets. Section 9.6 of
the Credit Agreement prohibits the Borrowers from conveying, selling, assigning,
transferring, or otherwise disposing of any of their property or assets, except
to the extent of exceptions described therein. A Recourse Syndication is a sale
of AFS's interest in an AFS Financing Agreement and
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related equipment and documentation to another party. Lenders hereby consent to
AFS's sale of its interest in AFS Financing Agreements and related equipment and
documentation in connection with Recourse Syndications.
6. Consent and Waiver under Section 8.1 (Leverage Ratio). Section
8.1 of the Credit Agreement requires JLG and its Consolidated Subsidiaries to
maintain as of any fiscal quarter end a Leverage Ratio of no greater than 3.0 to
1.0. JLG has informed Administrative Agent that its Leverage Ratio for the
fiscal quarter ending July 31, 2001 is anticipated to exceed 3.0 to 1.0. As of
the Amendment No. 2 Effective Date, Lenders hereby waive any Default or Event of
Default for the fiscal quarter ending July 31, 2001 arising in connection with
the violation of Section 8.1; provided, however, that if JLG and its
Consolidated Subsidiaries' Leverage Ratio for the fiscal quarter ending July 31,
2001 exceeds 3.7 to 1.0, then such waiver shall be retroactively void and no
longer in full force and effect.
7. Amendment and Restatement of Section 8.1(Leverage Ratio). As of
the Amendment No. 2 Effective Date, Section 8.1 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
Section 8.1 Leverage Ratio. As of any fiscal quarter end, permit the
Leverage Ratio to exceed the level in the right column below for the
corresponding period in the left column below:
Period Level
------ -----
Amendment No. 2 Effective 3.50 to 1.00
Date through January 26, 2002
January 27, 2002 through 3.25 to 1.00
April 27, 2002
April 28, 2002 and thereafter 3.00 to 1.00
8. Consent and Waiver under Section 8.2 (Interest Coverage Ratio).
Section 8.2 of the Credit Agreement requires JLG and its Consolidated
Subsidiaries to maintain as of any fiscal quarter end an Interest Coverage Ratio
of no less than 4.0 to 1.0. JLG has informed Administrative Agent that its
Interest Coverage Ratio for the fiscal quarter ending July 31, 2001 is
anticipated to be less than 4.0 to 1.0. As of the Amendment No. 2 Effective
Date, Lenders hereby waive any Default or Event of Default for the fiscal
quarter ending July 31, 2001 arising in connection with the violation of Section
8.2; provided, however, that if JLG and its Consolidated Subsidiaries' Interest
Coverage Ratio for the fiscal quarter ending July 31, 2001 is less than 3.35 to
1.0, then such waiver shall be retroactively void and no longer in full force
and effect.
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9. Amendment and Restatement of Section 8.2 (Interest Coverage
Ratio). As of the Amendment No. 2 Effective Date, Section 8.2 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
Section 8.2 Interest Coverage Ratio. As of any fiscal quarter end,
permit the Interest Coverage Ratio to be less than the level in the
right column below for the corresponding period in the left column
below:
Period Level
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Amendment No. 2 Effective 2.75 to 1.00
Date through April 27, 2002
April 28, 2002 and thereafter 4.00 to 1.00
10. Amendment and Restatement of Exhibit F. As of the Amendment No.
2 Effective Date, Exhibit F to the Credit Agreement (Form of Officer's
Compliance Certificate) is hereby amended and restated in its entirety as set
forth in Exhibit B attached hereto.
11. Amendment to Section 6.2 (Officer's Compliance Certificate). As
of the Amendment No. 2 Effective Date, Section 6.2 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
Section 6.2. Officer's Compliance Certificate. At each time
financial statements are delivered pursuant to Sections 6.1(a) or
(b), a certificate of the chief financial officer of JLG in the form
of Exhibit B attached to Amendment No. 2 (an "Officer's Compliance
Certificate").
12. Additional Subsection 6.1(c) Quarterly Financial Statements of
AFS. As of the Amendment No. 2 Effective Date, as additional Subsection 6.1(c)
is hereby added to the Credit Agreement to read in its entirety as follows:
(c) Quarterly Financial Statements of AFS. As soon as practicable
and in any event within forty-five (45) days after the end of the
first three (3) fiscal quarters of each Fiscal Year, an unaudited
balance sheet of AFS as of the close of such fiscal quarter and
unaudited statements of income, retained earnings and cash flows for
the fiscal quarter then ended and that portion of the Fiscal Year
then ended, including the notes thereto, all in reasonable detail
prepared by AFS
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in accordance with GAAP (excluding normal year-end adjustments and
other exceptions permitted under Regulation S-X promulgated by the
Securities Exchange Commission) and, if applicable, containing
disclosure of the effect on the financial position or results of
operations of any change in the application of accounting principles
and practices during the period, and certified by the chief
financial officer of JLG to present fairly in all material respects
the financial condition of AFS and the results of operations of AFS
for the period then ended, subject to normal year end adjustments.
13. Additional Section 7.20 (Modifications to Standardized Forms of
AFS Financing Agreements). As of the Amendment No. 2 Effective Date, an
additional Section 7.20 is hereby added to the Credit Agreement to read in its
entirety as follows:
Section 7.20. Modifications to Standardized Forms of AFS Financing
Agreements. Give Administrative Agent thirty (30) days prior notice
before modifying any material term or condition of a standardized
form of AFS Financing Agreement previously reviewed by
Administrative Agent.
14. Additional Section 7.21 (AFS Financing Agreement Transactions).
As of the Amendment No. 2 Effective Date, an additional Section 7.21 is hereby
added to the Credit Agreement to read in its entirety as follows:
Section 7.21. AFS Financing Agreement Transactions. On and after the
Amendment No. 2 Effective Date: (i) maintain at least ninety percent
(90%) of the Customer Financing Value of all Customer Financings as
AFS Financing Agreements, (ii) assure that JLG or its applicable
Subsidiary sells the applicable financed equipment to AFS at the
sale price to the customer at the time AFS enters into any AFS
Financing Agreement with a customer and (iii) assure that the
receivables created by AFS Financing Agreements are reflected on the
books of AFS.
15. Amendment to Section 9.4(d) (Limitations on Loans, Advances,
Investments and Acquisitions). As of the Amendment No. 2 Effective Date,
Subsection 9.4(d) of the Credit Agreement is hereby amended and restated in its
entirety as follows:
(d) so long as the aggregate amount of such loans, investments or
guarantees does not collectively exceed twenty (20%) of Net Worth,
Borrowers and Subsidiaries may (i) make loans to or investments in
joint ventures and (ii) make loans to or investments in customers,
or
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incur Guaranty Obligations with respect to obligations of such
customers, in order to facilitate sales of goods or services to such
customers; provided that: (x) any loans or investments arising from
AFS Financing Agreements are not intended to constitute loans to or
investments in customers for purposes of this Section 9.4(d)(ii) and
(y) any loans or investments arising from AFS Financing Agreements
or Guaranty Obligations arising from Recourse Syndications or
Recourse Securitizations shall be permitted and excluded when
calculating compliance with the 20% of Net Worth limitation of this
Section 9.4(d).
16. Amendment to Section 12.1(b) (Addresses for Notices). As of the
Amendment No. 2 Effective Date, Section 12.1(b) shall be amended and restated as
follows:
a. notices to the Borrowers shall be sent to the following
address:
JLG Industries, Inc.
0 XXX Xxxxx
XxXxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Xx.
Senior Vice President and
Chief Financial Officer
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Copies will continue to be delivered to Xxxxxxxxx & Xxxxxxx as
set forth in Section 12.1(b).
b. the telephone number for notices to First Union as
Administrative Agent shall be (000) 000-0000.
c. copies of notices to First Union as Administrative Agent
shall be sent to the following address:
First Union Securities, Inc.
000 Xxxxx Xxxxxxx Xxxxxx (XX-0)
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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15
Additional copies will continue to be delivered to Xxxxxx
Xxxxxxxx LLP as set forth in Section 12.1(b).
17. Additional Section 12.16 (PNC Three Party Agreement). As of the
Amendment No. 3 Effective Date, an additional Section 12.16 is hereby added to
the Credit Agreement to read in its entirety as follows:
13.16. PNC Three Party Agreement. As of the Amendment No. 2
Effective Date, or the date any Lender shall become a party to this
Agreement pursuant to Section 12.10, as applicable, each Lender
shall be bound by the terms of the Three Party Agreement ("PNC Three
Party Agreement") dated as of October 4th, 2001 by and among Market
Street Funding Corporation, PNC Bank, National Association, and
Administrative Agent, a copy of which is attached hereto as Exhibit
C, without any further action by any party, it being agreed that the
signature of any Lender that becomes a party to this Agreement
pursuant to Section 12.10 on the applicable Assignment and
Acceptance shall constitute agreement to be bound by the terms of
the PNC Three Party Agreement.
18. Representations and Warranties. Borrowers and AFS hereby
represent and warrant to Lenders as follows:
a. Representations. As of the Amendment No. 2 Effective Date,
(i) the representations and warranties set forth in Article V of the Credit
Agreement, together with the applicable Schedules related thereto as amended and
restated by this Amendment No. 2, are true and correct in all material respects
as of the Amendment No. 2 Effective Date, except for any representation or
warranty made as of an earlier date, which representation and warranty shall
remain true and correct as of such earlier date; (ii) there is no Event of
Default or Default under the Credit Agreement, as amended hereby; and (iii)
since July 31, 1999, no Borrower is aware of any material adverse change in the
properties, business, operations, prospects or condition (financial or
otherwise) of JLG or its Subsidiaries on a Consolidated basis that has not been
disclosed in writing to the Administrative Agent, including, without limitation,
in public filings under the 1934 Act, that could reasonably be expected to have
a Material Adverse Effect.
b. Power and Authority. Each Borrower and AFS has the power
and authority under the laws of its state of incorporation or formation and
under its respective articles or certificates of incorporation and bylaws or
articles of organization and operating agreement to enter into and perform this
Amendment No. 2 and the other documents and agreements required hereunder
(collectively, the "Amendment Documents"); all necessary actions (corporate or
otherwise) for the execution and performance by each Borrower and AFS of the
Amendment Documents have been taken; and each of the Amendment Documents and the
Credit Agreement, as
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16
amended, constitute the valid and binding obligations of Borrowers and AFS,
enforceable in accordance with its respective terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
state or federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of equitable
remedies.
c. No Violations of Law or Agreements. The execution and
performance of the Amendment Documents by Borrowers and AFS will not: (i)
violate any provisions of any law or regulation, federal, state or local, or the
articles or certificates of incorporation or bylaws or articles of organization
or operating agreement of any Borrower or AFS or (ii) result in any breach or
violation of, or constitute a default or require the obtaining of any consent
under, any material agreement or instrument by which any Borrower or AFS or its
property may be bound.
19. Amendment Fee. Borrowers and AFS hereby covenant and agree to
pay to each Lender who has executed this Amendment No. 2 a fee of .125% on such
Lender's Commitment Percentage under the Credit Agreement.
20. Conditions to Effectiveness of Amendment. This Amendment No. 2
shall be effective upon the date of Administrative Agent's receipt of the
following documents, each in form and substance reasonably satisfactory to
Administrative Agent:
a. Amendment No. 2. This Amendment No. 2 duly executed by
Borrowers, Required Lenders and Administrative Agent.
b. Existing Facility. An Amendment No. 3 to the Existing
Facility, in form and substance acceptable to Administrative Agent.
c. Overdraft Facility. An amendment to the documentation
evidencing the Overdraft Facility, in form and substance acceptable to
Administrative Agent.
d. Joinders to Revolving Notes. The Joinders to Revolving
Notes, duly executed by AFS.
e. Opinion of Counsel. An opinion of counsel to Borrowers, in
form and substance satisfactory to Administrative Agent.
f. Amendment Fee. Payment to Administrative Agent, for the
benefit of each Lender, of the fees set forth in Paragraph 19 hereof.
g. Good Standing Certificate. A good standing certificate from
the secretary of state of the state of formation of each Borrower as of a recent
date.
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h. Secretary Certificate. A certificate of the secretary of
each Borrower certifying as to and attaching its: (i) articles or certificate of
incorporation (or, for Borrowers other than AFS, certifying that there have been
no amendments to its articles or certificate of incorporation since such
document was last delivered to Administrative Agent), (ii) bylaws (or, for
Borrowers other than AFS, certifying that there have been no amendments to its
bylaws since such bylaws were last delivered to Administrative Agent), (iii)
authorizing resolutions, and (iv) incumbency certificate.
i. Security Agreement with Borrowers; UCC-1s. A security
agreement, in form and substance satisfactory to Administrative Agent, duly
executed by Borrowers granting a first priority lien and security interest in:
(i) the inventory of Borrowers located in the United States, subject to
provisions for automatic unconditional release upon any sale or lease of such
inventory in the ordinary course of business on an arms-length basis for value
received, (ii) the equipment owned by JLG and JLG Equipment Services, Inc. which
has been taken by JLG and JLG Equipment Services, Inc. on trade-in in the
ordinary course of business and is carried on their books as trade-in equipment
(including without limitation aerial work platforms, cranes, material handlers,
and scissor lifts), subject to provisions for automatic unconditional release
upon any sale or lease of such equipment in the ordinary course of business on
an arms-length basis for value received, (iii) certain receivables of JLG, The
Gradall Company and The Gradall Orrville Company, subject to provisions for
automatic unconditional release upon any sale or lease of such receivables in
the ordinary course of business on an arms-length basis for value received, and
(iv) the accounts and chattel paper arising from AFS Financing Agreements of
lessees and debtors located in the United States of AFS, subject to provisions
for automatic unconditional release in the event of any Syndication,
Securitization or other permitted transfer, together with UCC financing
statements in proper form for filing in such offices as shall be deemed
necessary or appropriate to perfect the lien and security interest granted
thereunder as determined by Administrative Agent and its counsel.
j. Consent Agreement. A consent agreement with PNC Bank,
National Association, relating to the pledge of stock of Xxxxxx Funding, Inc.
and the grant of a security interest in the receivables of JLG, The Gradall
Company and The Gradall Orrville Company in form and substance acceptable to
Administrative Agent and JLG.
k. Pledge Agreement; Stock Certificates. A pledge agreement
from JLG, in form and substance satisfactory to Administrative Agent, pledging
and granting a security interest in the shares of stock of Xxxxxx Funding, Inc.,
the bankruptcy-remote Subsidiary of JLG that is party to the PNC Securitization,
to Administrative Agent for the benefit of lenders; together with the delivery
of all stock certificates, stock powers and UCC financing statements in proper
form for filing in such offices as shall be deemed necessary or appropriate to
perfect the lien and security interest granted thereunder as determined by
Administrative Agent and its counsel.
l. Other Documents. Such additional documents as Lenders may
reasonably request.
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21. Affirmations. Borrowers hereby: (i) affirm all the provisions of
the Credit Agreement, as amended by this Amendment No. 2, and (ii) agree that
the terms and conditions of the Credit Agreement shall continue in full force
and effect as supplemented and amended hereby.
22. Release. IN ADDITION, TO INDUCE THE ADMINISTRATIVE AGENT AND THE
LENDERS TO AGREE TO THE TERMS OF THIS AMENDMENT NO. 2, BORROWERS REPRESENT AND
WARRANT THAT AS OF THE DATE OF THIS AGREEMENT, THERE ARE NO CLAIMS OR OFFSETS
AGAINST OR DEFENSES OR COUNTERCLAIMS TO ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS
AND IN ACCORDANCE THEREWITH:
a. EACH BORROWER WAIVES ANY AND ALL SUCH CLAIMS, OFFSETS,
DEFENSES OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE
OF ITS EXECUTION OF THIS AGREEMENT; AND
b. EACH BORROWER RELEASES AND DISCHARGES THE AGENT AND THE
LENDERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
SHAREHOLDERS, AFFILIATES AND ATTORNEYS (COLLECTIVELY, THE "RELEASED PARTIES")
FROM ANY AND ALL OBLIGATION, INDEBTEDNESS, LIABILITIES, CLAIMS, RIGHTS, CAUSES
OF ACTION OR DEMANDS WHATSOEVER, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR
UNSUSPECTED, IN LAW OR EQUITY, WHICH ANY BORROWER EVER HAD, NOW HAS, CLAIMS TO
HAVE OR MAY HAVE AGAINST ANY RELEASED PARTY ARISING PRIOR TO THE DATE HEREOF AND
FROM OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREBY.
23. Miscellaneous.
a. Borrowers agree to pay or reimburse Administrative Agent
for all reasonable fees and expenses (including without limitation reasonable
fees and expenses of counsel) incurred by Administrative Agent in connection
with the preparation, execution and delivery of this Amendment No. 2.
b. This Amendment No. 2 shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to
conflicts of law or choice of law principles.
c. This Amendment No. 2 may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
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19
d. Neither the Lenders' consents or waivers set forth herein
nor anything contained herein shall be construed as or constitute a consent to
or waiver of any further provision of the Credit Agreement, and the consents and
waivers granted hereby are limited to the matters and the periods set forth
herein.
e. Except as expressly set forth herein, the execution,
delivery and performance of this Amendment No. 2 shall not operate as a waiver
of any right, power or remedy of Administrative Agent or Lenders under the
Credit Agreement and the agreements and documents executed in connection
therewith or constitute a waiver of any provision thereof.
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20
IN WITNESS WHEREOF, the undersigned have executed this Amendment No.
2 the day and year first above written.
Attest: JLG INDUSTRIES, INC.
By: By:
------------------------------ ------------------------------
Name: Xxxxxx X. Xxxxxx Name:
Title: Secretary Title:
Attest: XXXXXX INTERNATIONAL, INC.
By: By:
------------------------------ ------------------------------
Name: Xxxxxx X. Xxxxxx Name:
Title: Secretary Title:
Attest: JLG EQUIPMENT SERVICES, INC.
By: By:
------------------------------ ------------------------------
Name: Xxxxxx X. Xxxxxx Name:
Title: Assistant Secretary Title:
Attest: JLG MANUFACTURING, LLC
By: JLG INDUSTRIES, INC., Authorized
Member
By: By:
------------------------------ ------------------------------
Name: Xxxxxx X. Xxxxxx Name:
Title: Assistant Secretary Title:
[EXECUTIONS CONTINUED]
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21
Attest: GRADALL INDUSTRIES, INC.
By: By:
------------------------------ ------------------------------
Name: Xxxxxx X. Xxxxxx Name:
Title: Assistant Secretary Title:
Attest: THE GRADALL COMPANY
By: By:
------------------------------ ------------------------------
Name: Xxxxxx X. Xxxxxx Name:
Title: Assistant Secretary Title:
Attest: THE GRADALL ORRVILLE COMPANY
By: By:
------------------------------ ------------------------------
Name: Xxxxxx X. Xxxxxx Name:
Title: Assistant Secretary Title:
AFS
Attest: ACCESS FINANCIAL SOLUTIONS, INC.
By: By:
------------------------------ ------------------------------
Name: Name:
Title: Title:
[EXECUTIONS CONTINUED]
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22
LENDERS
FIRST UNION NATIONAL BANK,
individually and in its capacity as
Administrative Agent and Documentation
Agent hereunder
By:
------------------------------------
Name:
Title:
BANK ONE, MICHIGAN,
individually and in its capacity as
Syndication Agent hereunder
By:
------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
------------------------------------
Name:
Title:
[EXECUTIONS CONTINUED]
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23
ALLFIRST BANK, f/k/a The First National
Bank of Maryland
By:
------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
------------------------------------
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK
By:
------------------------------------
Name:
Title:
NATIONAL CITY BANK OF
PENNSYLVANIA
By:
------------------------------------
Name:
Title:
COMERICA BANK
By:
------------------------------------
Name:
Title:
[EXECUTIONS CONTINUED]
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24
MELLON BANK, N.A.
By:
------------------------------------
Name:
Title:
SUNTRUST BANK, ATLANTA
By:
------------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By:
------------------------------------
Name:
Title:
BANK HAPOALIM B.M.
By:
------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By:
------------------------------------
Name:
Title:
[EXECUTIONS CONTINUED]
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00
XXX XXXX XX XXX XXXX
By:
----------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
----------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK
BRANCH
By:
----------------------------------
Name:
Title:
ERSTE BANK
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
MICHIGAN NATIONAL BANK
By:
----------------------------------
Name:
Title:
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