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Exhibit 10.24
CONFORMED COPY
THIRD AMENDMENT AND CONSENT, dated as of January 11, 2001 (this
"AMENDMENT"), to the Credit Agreement, dated as of April 29, 1998 (as amended by
the First Amendment to the Credit Agreement, dated as of October 22, 1999 and
the Second Amendment to the Credit Agreement, dated as of October 20, 2000, the
"CREDIT AGREEMENT"), among GROVE WORLDWIDE LLC, a Delaware limited liability
company (the "COMPANY"), GROVE CAPITAL, INC., a Delaware corporation and a
Wholly Owned Subsidiary of the Company ("GROVE CAPITAL"; the Company and Grove
Capital, individually, a "BORROWER" and collectively, the "BORROWERS"), the
several banks and other financial institutions or entities from time to time
parties to this Agreement (collectively, the "LENDERS"; individually, a
"LENDER") and THE CHASE MANHATTAN BANK, as Administrative Agent (as hereinafter
defined) for the Lenders hereunder.
W I T N E S S E T H:
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WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed
to make, and have made, certain loans and other extensions of credit to the
Borrowers; and
WHEREAS, the Borrowers have requested that the Lenders enter into
this Amendment in order to (a) permit HSBC International Trade Finance Limited
("HSBC"), upon the effectiveness of Amendment No. 6 to the Amended and Restated
Facility Letter (as defined in the Intercreditor Agreement), made as of December
28, 2000, by and between Grove U.S. L.L.C. and HSBC, pursuant to which HSBC has
agreed to extend its Dealer Receivables Financing until December 21, 2001 (the
"HSBC DEALER RECEIVABLES FINANCING EXTENSION"), to recover its ultimate losses
under dealer notes purchased by it after January 1, 2001 ratably with the
Obligations of the Lenders under the Credit Agreement from the collateral
supporting the Credit Agreement subject to the terms and conditions of the
Intercreditor Agreement, and (b) amend the Credit Agreement in certain respects
in connection with the HSBC Dealer Receivables Financing Extension, in each case
in the manner provided for in this Amendment.
NOW, THEREFORE, in consideration of the premises contained herein,
the parties hereto hereby agree as follows:
1. DEFINED TERMS. Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement and
the following term shall have the following meaning:
"COMMON COLLATERAL": the "Collateral" as defined in the
Intercreditor Agreement.
2. AMENDMENTS TO SECTION 1 OF THE CREDIT AGREEMENT. Subsection 1.1
of the Credit Agreement is hereby amended as follows
(a) by adding the following definitions in their proper alphabetical
order:
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"HSBC GUARANTEE AND COLLATERAL AGREEMENT": the Supplemental
Guarantee and Collateral Agreement, dated as of January __, 2001, made by
the Loan Parties in favor of HSBC International Trade Finance Limited, as
the same may be amended, supplemented or otherwise modified from time to
time. For purposes of this Agreement, the HSBC Guarantee and Collateral
Agreement shall not be included in the definition of Security Documents.
"INTERCREDITOR AGREEMENT": the Intercreditor Agreement, dated as of
January 11, 2001, among The Chase Manhattan Bank, as Administrative Agent
and HSBC International Trade Finance Limited, as the same may be amended,
supplemented or otherwise modified from time to time.
"THIRD AMENDMENT": the Third Amendment and Consent, dated as of
January 10, 2001, to the Credit Agreement.
"THIRD AMENDMENT EFFECTIVE DATE": the date on which all of the
conditions to the effectiveness of the Third Amendment shall have been
satisfied.
and (b) by (1) adding immediately after the words "Administrative Agent"
in paragraph (f) of the definition of "Deutsche Grove Eligible Accounts"
the following:
, any Lien granted or permitted pursuant to the terms of the
Intercreditor Agreement or the HSBC Guarantee and Collateral
Agreement
(2) adding immediately after the words "Administrative Agent" in paragraph
(f) of the definition of "Domestic Eligible Accounts" the following:
and any Lien granted or permitted pursuant to the terms of the
Intercreditor Agreement or the HSBC Guarantee and Collateral
Agreement
and (3) adding immediately after the words "first priority perfected Lien"
in the first paragraph of the definition of "Eligible Inventory" the
following:
(except as provided by the Intercreditor Agreement)
3. AMENDMENTS TO SECTION 4 OF THE CREDIT AGREEMENT. Subsection 4.19
of the Credit Agreement is hereby amended by (1) adding immediately after
the word "except" in the parenthetical clause at the end of paragraph (a)
thereof the number "(i)", (2) adding immediately after the reference to
"Section 7.3" in the parenthetical clause at the end of paragraph (a)
thereof the following:
and (ii) Liens granted or permitted pursuant to the terms of the
Intercreditor Agreement or the HSBC Guarantee and Collateral Agreement
and (3) adding immediately prior to the periods at the end of each of
paragraphs (b) and (c) thereof the following:
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(except for Liens granted or permitted pursuant to the terms of
the Intercreditor Agreement or the HSBC Guarantee and Collateral
Agreement)
4. AMENDMENTS TO SECTION 6 OF THE CREDIT AGREEMENT. Section 6.10 of
the Credit Agreement is hereby amended by (1) adding immediately after the
words "first priority Mortgage" in paragraph (b) thereof the following:
(except as provided by the Intercreditor Agreement) and (2) adding
immediately after each reference to "first priority security interest" in
paragraph (c) thereof the following:
(except as provided by the Intercreditor Agreement)
5. AMENDMENTS TO SECTION 7 OF THE CREDIT AGREEMENT. (a) Subsection
7.1 of the Credit Agreement is hereby amended by deleting the reference to
"$20,000,000" from the proviso at the end of paragraph (d) thereof and
substituting in lieu thereof the amount "$16,500,000".
(b) Subsection 7.3 of the Credit Agreement is hereby amended (1) by
deleting the word "and" at the end of paragraph (t) thereof and (2) by
adding immediately prior to the period at the end of paragraph (u)
thereof, the following language:
; and (v) Liens granted or permitted pursuant to the terms of the
Intercreditor Agreement or the HSBC Guarantee and Collateral Agreement
6. AMENDMENTS TO THE BORROWING BASE CERTIFICATE. Exhibit M (the
Borrowing Base Certificate) to the Credit Agreement is hereby amended by
adding immediately after each reference to "No first priority security
interest" therein the following:
(except as provided by the Intercreditor Agreement)
7. AMENDMENT TO THE GUARANTEE AND COLLATERAL AGREEMENT. The
Borrowers, the Lenders and the other Loan Parties (through their execution
and delivery of the Consent to this Amendment) hereby agree that
subsection 4.7 of the Guarantee and Collateral Agreement is amended by
adding immediately prior to the period at the end of paragraph (d) thereof
the following:
and Liens granted or permitted pursuant to the terms of the
Intercreditor Agreement or the HSBC Guarantee and Collateral
Agreement
8. CONSENTS. (a) Subject to the terms hereof, the Lenders hereby
consent to the execution and delivery of the Intercreditor Agreement by
each party thereto, authorize the Administrative Agent to execute it on
their behalf and to perform the actions described therein and consent to
the execution and filing of documents and instruments related to the Lien
in favor of HSBC pursuant thereto.
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(b) The Borrowers, the Administrative Agent and the Lenders
acknowledge and agree that (i) notwithstanding anything to the contrary
contained in any Loan Document, the application of money, property or
securities realized upon the sale, disposition or other realization by the
Administrative Agent on all or any part of the Common Collateral and the
exercise of all rights and remedies thereunder are subject to the
provisions of the Intercreditor Agreement, together with the other matters
covered thereby and (ii) the representations, warranties and covenants
made by the Loan Parties in the Loan Documents are deemed modified to the
extent necessary to conform such representations, warranties and covenants
with the requirements of the Intercreditor Agreement.
9. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on the Third Amendment Effective Date upon satisfaction of each
of the following conditions:
(a) the Administrative Agent shall have received:
(i) counterparts of this Amendment duly executed and delivered by
the Borrowers and the Required Lenders together with a Consent to
this Amendment duly executed and delivered by the Loan Parties;
(ii) counterparts of the Intercreditor Agreement in substantially
the form attached hereto as Exhibit A duly executed and delivered by
each party thereto; and
(b) HSBC shall have executed and delivered the HSBC Dealer
Receivables Financing Extension on a basis that maintains the aggregate
financing available under the HSBC Dealer Receivables Financing at
$60,000,000 or more up to and including June 30, 2001 and at $50,000,000
or more from June 30, 2001 up to and including December 31, 2001 and on
terms not more restrictive that those currently applicable thereto.
The Administrative Agent shall give prompt notice to the Borrowers, HSBC
and the Lenders of the satisfaction of the conditions set forth in
paragraphs (a) and (b) above.
10. REPRESENTATION AND WARRANTIES. To induce the Agents and the
Lenders parties hereto to enter into this Amendment, each Borrower hereby
represents and warrants to the Agents and all of the Lenders as of the
Third Amendment Effective Date that the representations and warranties
made by the Borrowers in the Loan Documents are true and correct in all
material respects before and after giving effect to the effectiveness of
this Amendment, as if made on and as of the Third Amendment Effective
Date, except to the extent that such representations and warranties relate
to a specific earlier date, in which case the Borrower confirms, reaffirms
and restates such representations and warranties as of such specific date.
11. GENERAL. (a) PAYMENT OF EXPENSES. The Borrowers jointly and
severally agree to pay or reimburse the Administrative Agent for all of
its out-of-pocket costs and reasonable expenses incurred in connection
with this Amendment, any other documents prepared in connection herewith
(including, without limitation, the Intercreditor Agreement) and the
transactions contemplated hereby, including, without limitation, the
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5
reasonable fees and disbursements of (x) counsel to the Administrative
Agent and (y) counsel to the Lenders.
(b) NO OTHER AMENDMENTS; CONFIRMATION. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement
and the Notes are and shall remain in full force and effect.
(c) GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(d) COUNTERPARTS. This Amendment may be executed by one or more of
the parties to this Amendment on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Amendment signed by
all the parties shall be lodged with each Borrower and the Administrative
Agent.
(e) SUCCESSORS. The execution and delivery of this Amendment by any
Lender shall be binding upon each of its successors and assigns (including
Transferees of its commitments and Loans in whole or in part prior to
effectiveness hereof) and binding in respect of all of its Revolving
Credit Commitment and Loans.
[This page has been intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
GROVE WORLDWIDE LLC
By: /s/ Stephen L. Cripe
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Name: Stephen L. Cripe
Title: Senior Vice President and
Chief Financial Officer
GROVE CAPITAL, INC.
By: /s/ Stephen L. Cripe
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Name: Stephen L. Cripe
Title: Senior Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Administrative Agent, Swing Line
Lender, Issuing Lender and a Lender
By: /s/ B. B Wuthrich
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Name: B. B. Wuthrich
Title: Vice President
ARCHIMEDES FUNDING, L.L.C.
By: /s/ David H. Scheiber
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Name: David H. Scheiber
Title: Vice President
BALANCED HIGH-YIELD FUND I LTD.
BY: BHF (USA) CAPITAL CORPORATION, acting
as Attorney-in-Fact
By:
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Name:
Title:
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BHF (USA) CAPITAL CORPORATION
By:
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Name:
Title:
CERES FINANCE, LTD.
By:
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Name:
Title:
COMERICA BANK
By:
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Name:
Title:
CONTINENTAL ASSURANCE COMPANY
SEPARATE ACCOUNT (E)
By: TCW Asset Management Company, as
Attorney-in-Fact
By: /s/ Mark L. Gold
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Name: Mark L. Gold
Title: Managing Director
By: /s/ Johnathan Insull
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Name: Johnathan Insull
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
Title:
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CYPRESSTREE INVESTMENT FUND, LLC
BY: CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC., its Managing Member
By:
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Name:
Title:
CYPRESSTREE INVESTMENT PARTNERS II
BY: CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC., its Managing Member
By:
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Name:
Title:
ELC (CAYMAN) LTD.
By: /s/ E.A. Kratzman
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Name: E.A. Kratzman, III
Title: Managing Director
FLEET NATIONAL BANK, Formerly known as
BankBoston, N.A.
By:
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Name:
Title:
FLEET BUSINESS CREDIT CORPORATION
By:
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Name:
Title:
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FREMONT INVESTMENT & LOAN
By: /s/ Steven C. Bierman
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Name: Steven C. Bierman
Title: Senior Vice President and
General Manager, Syndicated
Loan Group
GENERAL ELECTRIC CAPITAL CORPORATION
By:
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Name:
Title:
HIGHLAND CRUSADER OFFSHORE PARTNERS L.P.
By: /s/ Todd Travers
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Name: Todd Travers
Title: Senior Portfolio Manager
KZH CRESCENT LLC
By: /s/ Kimberly Rowe
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Name: Kimberly Rowe
Title: Authorized Agent
KZH CRESCENT 2 LLC
By: /s/ Kimberly Rowe
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Name: Kimberly Rowe
Title: Authorized Agent
KZH CRESCENT 3 LLC
By: /s/ Kimberly Rowe
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Name: Kimberly Rowe
Title: Authorized Agent
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KZH CYPRESS TREE-1 LLC
By: /s/ Kimberly Rowe
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Name: Kimberly Rowe
Title: Authorized Agent
KZH PAMCO LLC
By: /s/ Kimberly Rowe
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Name: Kimberly Rowe
Title: Authorized Agent
PAMCO CAYMAN LTD.
BY: HIGHLAND CAPITAL MANAGEMENT, L.P., as
Collateral Manager
By: /s/ Todd Travers
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Name: Todd Travers
Title: Senior Portfolio Manager
PAM CAPITAL FUNDING LP
BY: HIGHLAND CAPITAL MANAGEMENT, L.P., as
Collateral Manager
By: /s/ Todd Travers
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Name: Todd Travers
Title: Senior Portfolio Manager
KZH RIVERSIDE LLC
By: /s/ Kimberly Rowe
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Name: Kimberly Rowe
Title: Authorized Agent
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LONG DRIVE MANAGEMENT TRUST/TRI-LINKS
INVESTMENT TRUST,
BY: WILMINGTON TRUST COMPANY, as Owner
Trustee
By: /s/ David A. Vanaskey, Jr.
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Name: David A. Vanaskey, Jr.
Title: Vice President
MASSACHUSETTS MUTUAL LIFE INSURANCE
By: /s/ Lisa J. Yoerg
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Name: Lisa J. Yoerg
Title: Managing Director
MERRILL LYNCH, PIERCE, FENNER & SMITH, INC
By:
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Name:
Title:
ML CBO IV (Cayman Ltd)
BY: HIGHLAND CAPITAL MANAGEMENT, L.P., as
Collateral Manager
By: /s/ Todd Travers
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Name: Todd Travers
Title: Senior Portfolio Manager
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities Gen Par, L.P, its
General Partner
By: Oak Hill Securities MGP, Inc., its
General Partner
By: /s/ SCOTT D. KRASE
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Name: Scott D. Krase
Title: Vice President
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SEQUILS I, LTD
By: TCW Advisors, Inc. as its Collateral
Manager
By: /s/ Mark L. Gold
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Name: Mark L. Gold
Title: Managing Director
By: /s/ Johnathan Insull
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Name: Johnathan Insull
Title: Senior Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
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Name:
Title:
SOMERS CDO, LIMITED
By: /s/ Lisa J. Yoerg
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Name: Lisa J. Yoerg
Title: Managing Director
TRUST COMPANY OF THE WEST
By:
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Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
WELLS FARGO BANK, N.A.
By:
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Name:
Title:
<PAGE>
Each of the undersigned hereby consents to the foregoing Amendment and hereby
confirms, reaffirms and restates that its obligations under or in respect of the
Credit Agreement and the documents related thereto to which it is party are and
shall remain in full force and effect after giving effect to the foregoing
Amendment and agrees and confirms, in the case of National Crane Corporation,
that it is a party to the Guarantee and Collateral Agreement as a Grantor
thereunder:
GROVE HOLDINGS LLC
By: /s/ Stephen L. Cripe
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Name: Stephen L. Cripe
Title: Vice President and
Chief Financial Officer
GROVE WORLDWIDE LLC
By: /s/ Stephen L. Cripe
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Name: Stephen L. Cripe
Title: Senior Vice President and
Chief Financial Officer
GROVE CAPITAL, INC.
By: /s/ Stephen L. Cripe
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Name: Stephen L. Cripe
Title: Vice President and
Chief Financial Officer
GROVE U.S. LLC
By: /s/ Stephen L. Cripe
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Name: Stephen L. Cripe
Title: Senior Vice President and
Chief Financial Officer
CRANE ACQUISITION CORPORATION
By: /s/ Stephen L. Cripe
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Name: Stephen L. Cripe
Title: Vice President and
Chief Financial Officer
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CRANE HOLDING INC.
By: /s/ Keith R. Simmons
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Name: Keith R. Simmons
Title: Senior Vice President and
Secretary
GROVE FINANCE LLC
By: /s/ Stephen L. Cripe
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Name: Stephen L. Cripe
Title: Vice President and
Chief Financial Officer
NATIONAL CRANE CORPORATION
By: /s/ Keith R. Simmons
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Name: Keith R. Simmons
Title: Senior Vice President and
Secretary
