<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K/A
AMENDMENT NO. 1 TO
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the Securities Exchange Act of 1934
Date of Report August 31, 1999
(Date of earliest event reported) July 2, 1999
JLG INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Commission file number: 0-8454
PENNSYLVANIA 25-1199382
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1 JLG Drive, McConnellsburg, PA 17233-9533
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(7l7) 485-5161
Not Applicable
(Former name of former address, if changed since last report)
<PAGE> 2
Item 2. Acquisition or Disposition of Assets
(a) On June 18, 1999, JLG Industries, Inc. (the Company) completed the
merger of its wholly owned subsidiary with and into Gradall Industries,
Inc. (Gradall). Following its tender offer, the Company acquired 100%
or 9,834,871 voting common shares of Gradall for $20.00 per share.
Shares of Gradall common stock not tendered in the tender offer were
converted into the right to receive $20.00 per share in cash. The
acquisition was financed by the proceeds from the revolving credit
facility described in Item 5 (a) below.
(b) Gradall is a leading manufacturer of rough-terrain, variable-reach
material handlers and telescoping hydraulic excavators used in
infrastructure, residential, non-residential and institutional
construction and is one of the industry's most recognized brand names.
Item 5. Other Events
(a) The Company entered into a Credit Agreement dated June 18, 1999
(the "Credit Agreement") by and among the Company, certain of its
subsidiaries, and certain financial institutions named therein. The
Credit Agreement provides for a five year revolving credit facility,
with an aggregate commitment of $250 million. The Credit Agreement
commitment is available for the costs of the acquisition, repaying
pre-acquisition indebtedness and working capital and general corporate
purposes.
Borrowings under the Credit Agreement bear interest at a rate per annum
equal to, at the Company's option, either LIBOR plus a margin ranging
from .55% to 1.125%, depending on the Company's ratio of funded debt to
EBITDA, or the greater of prime rate or federal funds rate plus .50%.
The Company is also required to pay an underwriting fee of .75% of the
commitment and an annual administrative fee of $35,000, and a facility
fee ranging from .20% to .275%, depending on the Company's ratio of
funded debt to EBITDA. The Credit Agreement contains customary
affirmative and negative covenants, including financial covenants
requiring the maintenance of specific consolidated interest coverage
and leverage ratios and a minimum consolidated net worth.
(b) On June 18, 1999, the Company modified an existing credit agreement
to reduce the maximum borrowing amount from $40 million to $20 million.
<PAGE> 3
Item 7. Financial Statements and Exhibits
At the time of the filing of the Current Report, it was impractical for the
Company to provide financial statements for Gradall, or pro forma financial
information for the Company relative to the acquisition of Gradall. Pursuant to
the instructions for Item 7 of the Current Report, the Company hereby amends
item 7 to the Current Report to include the previously omitted information as
follows:
(a) Financial Statements of Business Acquired.
Audited balance sheets of Gradall Industries, Inc. for the years ended
December 31, 1998 and 1997 and income statements and cash flow
statements for each of the three years ended December 31, 1998.
Unaudited balance sheet of Gradall Industries, Inc. as of March 31,
1999 and income statements and cash flows for the three months ended
March 31, 1999 and 1998.
(b) Pro Forma Financial Information.
Unaudited pro forma combined income statements for the nine months
ended April 30, 1999.
Unaudited pro forma combined income statements for the twelve months
ended July 31, 1998.
Unaudited pro forma combined balance sheet as of April 30, 1999.
Notes to the unaudited pro forma combined financial statements.
(c) Exhibits
10.1 Agreement and Plan of Merger dated as of May 10, 1999, among
Gradall Industries, Inc., the Company and JLG Acquisition
Corp. (incorporated by reference to Exhibit (c)(1) to the
Company's Report on Form 14D-1 filed on May 17, 1999.)
10.2 First Union Credit Agreement
23.1 Consent of PricewaterhouseCoopers LLP for Gradall Industries,
Inc.
<PAGE> 4
GRADALL INDUSTRIES, INC.
FINANCIAL STATEMENTS
CONTENTS
Consolidated balance sheets for the years ended December 31, 1998 and 1997
Consolidated statements of income for the years ended December 31, 1998, 1997
and 1996
Statement of changes in shareholders' equity for the years ended December 31,
1998, 1997 and 1996
Consolidated statement of cash flows for the years ended December 31, 1998, 1997
and 1996
Notes to the consolidated financial statements
<PAGE> 5
Gradall Industries, Inc.
Consolidated Balance Sheets
(dollars in thousands, except share amounts)
<TABLE>
<CAPTION>
DECEMBER 31
1998 1997
------------------------------------
<S> <C> <C>
ASSETS
Current assets:
Cash $ 2,457 $ 1,605
Accounts receivable trade, net of allowance for doubtful accounts of $69 26,983 25,290
and $56
Inventories 32,872 25,564
Prepaid expenses and deferred charges 2,510 1,645
Deferred income taxes 985 742
------------------------------------
Total current assets 65,807 54,846
Deferred income taxes 5,985 5,402
Property, plant and equipment, net 25,838 15,108
Other assets:
Deferred financing costs, net of accumulated amortization of $698 and $404 152 446
Other 1,205 933
------------------------------------
Total other assets 1,357 1,379
====================================
Total assets $98,987 $76,735
====================================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of capital lease obligation 307 297
Current portion of long-term debt 6,919 -
Accounts payable - trade 16,288 17,113
Accrued other expenses:
Profit sharing 1,404 1,327
Floor plan interest 1,341 1,444
Warranty 1,853 1,075
Deferred revenue 2,286 -
Income taxes 2,208 1,115
Other 5,359 5,966
------------------------------------
Total current liabilities 37,965 28,337
------------------------------------
Long-term obligations:
Capital lease obligation 405 412
Long-term debt - 9,603
Accrued post-retirement benefit cost 16,554 15,719
Other long-term liabilities 1,688 1,445
------------------------------------
Total long-term obligations 18,647 27,179
------------------------------------
Total liabilities 56,612 55,516
------------------------------------
Stockholders' equity:
Serial preferred shares, par value $.001 per share 2,000,000 shares
authorized, none issued and outstanding Common stock, $.001 par value;
18,000,000
shares authorized; 9,508,231 and 8,940,194 issued and outstanding in 1998
and 1997, respectively 10 9
Additional paid-in capital 45,805 38,894
Accumulated deficit (2,733) (17,087)
Accumulated other comprehensive loss (707) (597)
------------------------------------
Total stockholders' equity 42,375 21,219
====================================
Total liabilities and stockholders' equity $98,987 $76,735
====================================
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
<PAGE> 6
Gradall Industries, Inc.
Consolidated Statements of Income
(dollars in thousands, except share amounts)
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
1998 1997 1996
-------------------------------------------------
<S> <C> <C> <C>
Net sales $ 182,607 $ 158,659 $ 140,909
Cost of sales 140,456 120,663 108,098
-------------------------------------------------
Gross profit 42,151 37,996 32,811
Research and development and product
engineering costs 4,039 3,644 3,081
Selling general and administrative expenses 14,149 13,712 11,815
-------------------------------------------------
Operating income 23,963 20,640 17,915
Other expense:
Interest expense 380 696 3,108
Other 31 257 1,018
-------------------------------------------------
Net other expense 411 953 4,126
-------------------------------------------------
Income before income taxes
and extraordinary item 23,552 19,687 13,789
Income tax provision 9,198 7,696 5,503
-------------------------------------------------
Income before extraordinary item 14,354 11,991 8,286
-------------------------------------------------
Extraordinary item, loss from early extinguishment of
debt, net of tax benefit of $622 - - 973
-------------------------------------------------
Net income $ 14,354 $ 11,991 $ 7,313
=================================================
Basic:
Weighted average shares outstanding 9,230,768 8,939,605 6,956,507
Earnings per share:
Before extraordinary item $1.56 $1.34 $1.19
After extraordinary item $1.56 $1.34 $1.05
Diluted:
Weighted average shares outstanding 9,316,466 9,013,760 7,003,200
Earnings per share:
Before extraordinary item $1.54 $1.33 $1.18
After extraordinary item $1.54 $1.33 $1.04
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
<PAGE> 7
Gradall Industries, Inc.
Statements of Changes in Stockholders' Equity
(dollars in thousands, except per share amounts)
<TABLE>
<CAPTION>
Additional
Additional Paid-In
Preferred Common Paid-In Capital-
Stock Stock Capital Warrants
--------------------------------------------------------------
<S> <C> <C> <C> <C>
Balance December 31, 1995 $ 2,000 $ 6 $ 11,994 $ 1,000
Issuance of 2,950,000
shares of common stock 3 24,913
Redemption of
140 preferred shares (2,000) 2,000
Redemption of 449,294
common stock warrants (1,000)
Net income
Minimum pension liability adjustment
Total comprehensive income
--------------------------------------------------------------
Balance December 31, 1996 - 9 38,907 -
Additional expense
resulting from the initial
public offering (19)
Stock options exercised 6
Net income
Minimum pension liability adjustment
Total comprehensive income
--------------------------------------------------------------
Balance December 31, 1997 - 9 38,894 -
Issuance of 562,500 shares
of common stock 1 6,876
Stock options exercised 35
Net income
Minimum pension liability adjustment
Total comprehensive income
==============================================================
Balance December 31, 1998 $ - $ 10 $ 45,805 $ -
==============================================================
</TABLE>
<TABLE>
<CAPTION>
Accumulated
Other
Accumulated Comprehensive
Deficit Income (loss) (1) Total
--------------------------------------------------------
<S> <C> <C> <C>
Balance December 31, 1995 $ (37,391) $ (728) $(23,119)
Issuance of 2,950,000
shares of common stock 24,916
Redemption of
140 preferred shares
Redemption of 449,294
common stock warrants 1,000
Net income 7,313 7,313
Minimum pension liability adjustment (34) (34)
----------------
Total comprehensive income 7,279
--------------------------------------------------------
Balance December 31, 1996 (29,078) (762) 9,076
Additional expense
resulting from the initial
public offering (19)
Stock options exercised 6
Net income 11,991 11,991
Minimum pension liability adjustment 165 165
----------------
Total comprehensive income 12,156
--------------------------------------------------------
Balance December 31, 1997 (17,087) (597) 21,219
Issuance of 562,500 shares
of common stock 6,877
Stock options exercised 35
Net income 14,354 14,354
Minimum pension liability adjustment (110) (110)
----------------
Total comprehensive income 14,244
========================================================
Balance December 31, 1998 $ (2,733) $ (707) $ 42,375
========================================================
</TABLE>
(1) All items included in accumulated other comprehensive income (loss) are
shown net of income taxes. The tax effect for the minimum pension liability
adjustment was $70, $(93) and $17 for 1998, 1997, and 1996 respectively.
The accompanying notes are an integral part of these consolidated financial
statements.
<PAGE> 8
Gradall Industries, Inc.
Consolidated Statements of Cash Flows
(dollars in thousands)
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
1998 1997 1996
--------------------------------------------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $14,354 $11,991 $ 7,313
Adjustments to reconcile net income
to net cash provided by operating activities:
Extraordinary item, before tax benefit - - 1,595
Change in pension liability adjustment (110) 165 (34)
Post-retirement benefit transition obligation 835 1,115 780
Depreciation 2,420 1,721 1,391
Amortization 294 157 344
Deferred income taxes (826) 264 106
Equity loss on investment - - 44
Gain on sale of property, plant and equipment (98) (1) (111)
Increase in accounts receivable (1,693) (8,444) (4,710)
Increase in inventories (7,308) (4,238) (2,816)
Increase in prepaid expenses (865) (1,150) (51)
Increase in other assets (272) (135) (152)
Increase in accounts payable and accrued expenses 4,147 2,204 3,941
Increase (decrease) in accrued other long-term liabilities 243 (239) 28
--------------------------------------------------
Net cash provided by operating activities 11,121 3,410 7,668
--------------------------------------------------
Cash flows from investing activities:
Proceeds from sale of property, plant and equipment 223 12 104
Purchase of property, plant and equipment (13,275) (5,305) (2,300)
--------------------------------------------------
Net cash used in investing activities (13,052) (5,293) (2,196)
--------------------------------------------------
Cash flows from financing activities:
Net proceeds from initial public offering - - 26,916
Payment of term debt - - (10,000)
Payment of subordinated debt - - (10,000)
Issuance of 900 common shares - 6 -
Issuance of 5,540 common shares 35 - -
Redemption of preferred stock - - (2,000)
Net proceeds from follow on public offering 6,877 - -
Proceeds (repayments) on capital leases 3 90 (172)
Net advances (repayments) on revolving line of credit (2,684) 2,312 (10,808)
Proceeds from (payments of) bank overdraft (1,448) 884 (730)
Other - (19) -
--------------------------------------------------
Net cash provided by (used in) financing activities 2,783 3,273 (6,794)
--------------------------------------------------
Net increase (decrease) in cash 852 1,390 (1,322)
Cash, beginning of year 1,605 215 1,537
--------------------------------------------------
Cash, end of year $ 2,457 $ 1,605 $ 215
==================================================
Supplemental disclosure:
Cash paid for:
Income taxes $ 8,931 $ 7,650 $ 2,875
==================================================
Interest $ 409 $ 604 $ 3,572
==================================================
Other:
Amounts financed through capital leases $ 290 $ 287
===================================
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
<PAGE> 9
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
1. NATURE OF BUSINESS AND BASIS OF PRESENTATION:
Gradall Industries, Inc. (the "Company"), Incorporated in Delaware, formerly ICM
Industries Inc. (ICM), is a holding Company. The consolidated financial
statements include the Company and its wholly owned subsidiaries, The Gradall
Company, The Gradall Orrville Company and Gradall Investment Company. The
Gradall Investment Company was dissolved in 1996.
The Gradall Company manufactures and sells excavating and material handling
equipment and related parts to public and private sector customers throughout
the world through independent distribution organization.
On September 3, 1996, the Company completed an initial public offering in which
2,950,000 shares of common stock were issued for a total sum of $29.5 million.
Expenses incurred in connection with the issue approximated $2.6 million. The
net proceeds of the offering were used as follows:
<TABLE>
<S> <C>
Repay outstanding term debt $ 9,550
Repay subordinate debt 10,000
Redeem preferred stock. 2,000
Reduce revolving credit liability 5,379
</TABLE>
In connection with the offering, the Company increased the number of its
authorized shares of common stock from 2,200 to 18,000,000 and effected a
5,540-to-1 stock split. All applicable share and per share data have been
retroactively adjusted for the stock split.
On June 29, 1998, the Company completed a public offering in which 562,500
shares of common stock were issued by the Company for a total sum of $7.3
million. Expenses incurred in connection with the issue approximated $0.5
million including $0.1 million related to selling shareholders. The net proceeds
of the offering were used to repay the revolving credit facility.
On October 13, 1998, a new company, The Gradall Orrville Company, was formed as
a wholly owned subsidiary of Gradall Industries, Inc., to purchase a new
production plant at Orrville, Ohio. The new facility, formerly the Volvo Truck
Assembly plant, contains 330,000 square feet and will provide additional
production space for the material handler product.
<PAGE> 10
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Principles of Consolidation: The accompanying consolidated financial statements
include the accounts of the Company and its wholly owned subsidiaries. All
significant intercompany accounts and transactions have been eliminated.
Use of Estimates: The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial statements and
related notes. Actual results may differ from those estimates.
Source of Supply of Labor: Virtually all of the Company's hourly employees are
represented by the International Association of Machinists and Aerospace Workers
under a three-year contract which expires April 16, 2000.
Revenue Recognition: The Company's revenue recognition policy is to recognize
revenue when products are shipped. In 1998, the Company entered into a
twelve-month lease agreement for certain inventories which includes a guarantee
by the Company at the end of the lease agreement. Revenues equal to the amount
of the guarantee are deferred.
Product Financing: The Company provides its distributors with product financing
through agreements with third party financing companies. Such financings include
a Wholesale Floor Plan for distributors and a Retail Finance Plan for end-users,
each with reduced interest rates subsidized by the Company, and a Rental Plan
for distributors.
Product Warranty Costs: In general, the Company provides warranty on equipment
for a period of up to twelve months or for a specified period of use after sale
or rental by the distributor. Reserves for estimated warranty costs are
established at the time of sale.
Inventories: Inventories are stated at cost not in excess of market value using
the last-in, first-out (LIFO) method of inventory costing. Inventory cost
includes materials, direct labor, manufacturing overhead, and outside service
costs. Market value is determined by comparison with recent purchases or
realizable value.
Property, Plant and Equipment: Expenditures for property, plant and equipment
and for renewals and betterments which extend the originally estimated economic
lives of assets are capitalized at cost. Expenditures for maintenance and
repairs are charged to expense. Items which are sold, retired, or otherwise
disposed of are removed from the asset and accumulated depreciation accounts and
any gains or losses are reflected in income. The Company's depreciation and
amortization methods are as follows:
<PAGE> 11
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, CONTINUED:
<TABLE>
<CAPTION>
DESCRIPTION USEFUL LIFE METHOD
- ---------------------------------------- -------------------------------------- --------------------------------------
<S> <C> <C>
Machinery and equipment 3 - 10 years Straight-line
Buildings and improvements 10 - 24 years Straight-line
Furniture and fixtures 3 - 10 years Straight-line
</TABLE>
Patents: The cost of patents is being amortized on a straight-line basis over
the remaining legal life of the patents.
Deferred Financing Costs: Costs incurred to obtain financing have been
capitalized and are being amortized over the life of the respective financing
arrangements.
Income Taxes: The Company follows the provisions of Statement of Financial
Accounting Standards No. 109, "Accounting for Income Taxes." Deferred income
taxes arise from reporting certain items of income and expense for tax purposes
in a different period than for financial reporting purposes.
Fair Value of Financial Instruments: The Company's financial instruments consist
principally of cash, accounts receivable, accounts payable and accrued
liabilities in which the fair value of these financial instruments approximates
the carrying value. The Company's revolving line of credit provides for periodic
changes in interest rates which approximate current rates and therefore, the
fair value of the debt approximates carrying value.
Research and Development Costs: Expenditures relating to the development of new
products and processes, including significant improvements to existing products,
are expensed as incurred. Research and development expenses were $2,552, $1,722
and $1,641 in 1998, 1997 and 1996, respectively. In addition, the Company
incurred other engineering expenses relating to new product development (that do
not meet the accounting definition of "Research and Development") in the amount
of $1,487, $1,922 and $1,440 in 1998, 1997 and 1996, respectively.
Stock Based Compensation: The Company accounts for stock based compensation
awards pursuant to Accounting Principles Board Opinion No. 25, "Accounting for
Stock Issued to Employees," and its related interpretations which prescribe the
use of the intrinsic value based method. No compensation cost has been
recognized for its fixed stock option plans. However, the Company has adopted
the disclosure requirements of Statement of Financial Accounting Standards No.
123, "Accounting for Stock Based Compensation," See Note 10 for additional
information.
<PAGE> 12
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, CONTINUED:
Earnings Per Common Share: In the fourth quarter of 1997, the Company adopted
the provisions of Statement of Financial Accounting Standards No. 128 ("SFAS
128"), "Earnings per Share," which specifies the computation, presentation, and
disclosure requirements of earnings per common share. Basic earnings per share
are based on the weighted average number of common shares outstanding during the
period. Diluted earnings per common share are based on the weighted average
number of common shares outstanding during the period plus, if dilutive, the
incremental number of common shares issuable on a pro forma basis upon the
exercise of employee stock options, assuming the proceeds are used to repurchase
outstanding shares at the average market price during the year. All prior
periods have been restated to conform to the provisions of this statement. A
reconciliation of the Basic and Diluted per share computations are provided
below:
<TABLE>
<CAPTION>
1998 1997 1996
------------------- ---------------- -----------------
<S> <C> <C> <C>
Common Shares
Weighted average common shares outstanding
Basic 9,230,768 8,939,605 6,956,507
Additional common shares issuable for stock options
85,698 74,155 46,693
------------------- ---------------- -----------------
Common shares - Diluted 9,316,466 9,013,760 7,003,200
=================== ================ =================
</TABLE>
Comprehensive Income: Statement of Financial Accounting Standards No. 130,
"Reporting Comprehensive Income." was adopted during the first quarter of 1998.
The standard established guidelines for the reporting and display of
comprehensive income (loss) and its components in financial statements.
Comprehensive income includes net income and adjustments to the minimum pension
liability. The Company has changed the format of its Consolidated Statement of
Changes in Stockholders' Equity to present comprehensive income and its
components.
Segment Information: Statement of Financial Accounting Standards No. 131,
"Disclosures about Segments of an Enterprise and Related Information," was
adopted in the fourth quarter of 1998 and supersedes Statement of Financial
Accounting Standards No. 14, "Financial Reporting for Segments of a Business
Enterprise." The new standard established guidelines for reporting information
on operating segments in interim and annual financial statements. The adoption
of the standard did not affect the Company's financial position, results of
operations or cash flows (see Note 14).
<PAGE> 13
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, CONTINUED:
Future Accounting Requirements: In June 1998, the Financial Accounting Standards
Board issued Statement of Financial Accounting Standards No. 133, "Accounting
for Derivative Instruments and Hedging Activities." This Statement requires that
all derivative instruments be recorded on the balance sheet at their fair value.
Changes in the fair value of derivatives will be recorded each period in current
earnings or other comprehensive income. The new rules will be effective the
first quarter of 2000. The Company is in the process of determining the impact
of this new standard and, based on current market conditions, anticipates that
it will not have a material impact on the Company's financial statements when
effective.
Reclassifications: Certain prior years' balances have been reclassified to
conform to the current year's presentation.
3. INVENTORIES:
Inventories are comprised of:
<TABLE>
<CAPTION>
1998 1997
--------------------- --------------------
<S> <C> <C>
Raw materials $ 1,401 $ 921
Work in process 24,501 24,739
Finished goods 13,058 5,474
--------------------- --------------------
38,960 31,134
Less LIFO reserve 6,088 5,570
--------------------- --------------------
Total inventory $32,872 $25,564
===================== ====================
</TABLE>
<PAGE> 14
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
4. PROPERTY, PLANT AND EQUIPMENT:
The major classes of property, plant and equipment are summarized as follows:
<TABLE>
<CAPTION>
1998 1997
------------------------------------------
<S> <C> <C>
Land $ 963 $ 513
Machinery and equipment 23,998 16,910
Buildings and improvements 11,087 5,587
Furniture and fixtures 3,212 2,277
Construction in progress 2,584 4,109
------------------------------------------
41,844 29,396
Less accumulated depreciation 16,006 14,288
------------------------------------------
Net property, plant and equipment $ 25,838 $ 15,108
==========================================
</TABLE>
5. FINANCING:
Long-term debt includes:
<TABLE>
<CAPTION>
1998 1997
------------------------------------------
<S> <C> <C>
Revolving credit $ 6,919 $9,603
Less current maturities 6,919 0
------------------------------------------
$ 0 $9,603
==========================================
</TABLE>
At December 31, 1998, the Company maintained a loan and security agreement with
Heller Financial, Inc. which provided for up to $25 million in revolving loan
commitments. Amounts borrowed under the borrowing base, as defined, could be
repaid and reborrowed at any time prior to August 31, 1999, the termination
date. Amounts outstanding under this agreement were reclassified to current
portion of long-term debt at December 31, 1998.
<PAGE> 15
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
5. FINANCING, CONTINUED:
The revolving line of credit bears interest at either LIBOR plus 1% or prime
minus .50%. At December 31, 1998, the prime rate was 7.75%. There were no
borrowings under the LIBOR option at year end. The average annual interest rate
in effect for the revolving line of credit was 7.25%. At December 31, 1997, the
prime rate was 8.5%, LIBOR was 5.97%, and the average annual interest rate in
effect for the revolving line of credit was 7.86%. The Company also pays an
unused line fee of 0.25 percent per annum.
The terms of the financing agreement contain, among other provisions,
restrictions on the level of capital expenditures and various financial ratios,
as defined. The financing agreements are collateralized by substantially all the
assets of the Company.
On January 27, 1999 the Company's Loan and Security Agreement with Heller
Financial, Inc. was paid in full and terminated. A new revolving line of credit
for $17 million was established with KeyBank National Association (the "Lender")
with an unsecured demand promissory note. The note bears interest at either
LIBOR plus .80% or prime minus 1.40%. The note renews annually and terminates at
the earlier of the Lender's demand or the Company's decision to terminate by
written or oral communication to the Lender.
6. LEASE OBLIGATIONS
The Company leases certain machinery and equipment under capital leases expiring
between 1999 and 2001. The assets and liabilities under capital leases are
recorded at the original purchase cost. The assets are depreciated over their
estimated productive lives. Depreciation of assets under capital leases is
included in depreciation expense.
In addition, the Company leases certain equipment under operating leases. A
number of these leases have renewal options.
The following is a summary of property held under capital leases:
<TABLE>
<CAPTION>
1998 1997
--------------------- --------------------
<S> <C> <C>
Machinery and equipment $1,020 $1,020
Information systems 571 287
--------------------- --------------------
Total capital leases 1,591 1,307
Less accumulated depreciation 572 364
--------------------- --------------------
$1,019 $ 943
===================== ====================
</TABLE>
<PAGE> 16
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
6. LEASE OBLIGATIONS, CONTINUED:
The following is a summary of future minimum payments under capitalized and
operating leases that have remaining noncancelable lease terms in excess of one
year at December 31, 1998:
<TABLE>
<CAPTION>
OPERATING YEAR ENDING CAPITAL OPERATING
DECEMBER 31 LEASES LEASES
- ----------------------------------------------------------- --------------------
<S> <C> <C>
1999 $356 $160
2000 370 86
2001 60 32
-------------------- --------------------
Total minimum lease payments
$786 $278
==================== ====================
Interest $ 74
--------------------
Liability under capital lease payments
712
Current portion 307
--------------------
Long-term capitalized lease obligation
$405
====================
</TABLE>
Rental expense for operating leases amounted to $394, $409 and $397 for the
years ended December 31, 1998, 1997, and 1996 respectively.
7. EMPLOYEE BENEFIT PLANS:
Pension and Postretirement Benefit Plans: Substantially all employees are
covered by pension plans which provide for monthly pension payments to eligible
former employees who have retired. Prior to March 24, 1997 the Company sponsored
two plans, one for members of the collective bargaining unit and one for
salaried and other eligible employees.
Benefits paid under the collective bargaining unit plan are based on a benefit
multiplier times years of credited service, reduced by benefits under a prior
plan. Such prior plan benefits are guaranteed under the terms of group annuity
contracts. Benefits paid under the salary plan are based on the greater of a
benefit multiplier times years of credited service or a percentage of
pre-retirement earnings. Pension costs are funded as actuarially determined and
to the extent cash contributions are deductible for federal income tax purposes.
The collective bargaining unit plan uses the entry age normal actuarial cost
method to determine annual contributions to the plan. The salary plan uses the
unit credit actuarial cost method to determine contributions.
<PAGE> 17
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
7. EMPLOYEE BENEFIT PLANS, CONTINUED:
Effective March 24, 1997 the Company adopted the IAM National Pension Plan to
replace the existing collective bargaining unit plan for future service
benefits. The collective bargaining unit plan benefits were frozen and the
Company continues to fund the plan for past service benefits. The expense
related to funding the IAM National Pension Plan for years ending December 31,
1998 and 1997 was $371 and $254 respectively.
Postretirement Benefits: The Company provides eligible retired employees with
health care and life insurance benefits. These benefits are provided on a
non-contributory basis for life insurance and contributory basis for medical
coverage. Currently, the Company does not pre-fund these benefits.
Statement of Financial Accounting Standards No. 87, "Employers' Accounting for
Pension," contains a provision which requires the recognition of a liability
(including unfunded accrued pension costs) that is at least equal to the
unfunded accumulated benefit obligation (the excess of the accumulated benefit
obligation over the fair value of plan assets). Recognition of an additional
minimum liability is required if an unfunded accumulated benefit exists and the
liability already recognized as unfunded accrued pension cost is less than the
unfunded accumulated benefit obligation. The additional minimum liability of
$1,160 and $980 at December 31, 1998 and 1997, respectively, has been included
in other long-term liabilities and has been reported net of income tax effect
within stockholders' equity.
The following table sets forth the both plan's funded status and amounts
recognized in the Company's consolidated financial statements.
<TABLE>
<CAPTION>
PENSION BENEFITS POSTRETIREMENT BENEFITS
1998 1997 1998 1997
---------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Change in Benefit Obligation
Projected Benefit Obligation
(PBO)/Accumulated postretirement benefit obligation
(APBO), beginning or year $12,637 $10,990 $18,874 $16,515
Service cost 487 505 678 583
Interest cost 889 819 1,166 1,232
Plan amendments (509)
Plan curtailments 17
Actuarial (gain)loss 375 946 (1,355) 1,279
Benefits paid (649) (640) (1,056) (735)
--------------- ---------------- --------------- ---------------
PBO/APBO, end of year $13,739 $12,637 $17,798 $18,874
=============== ================ =============== ===============
</TABLE>
<PAGE> 18
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
7. EMPLOYEE BENEFIT PLANS, CONTINUED:
<TABLE>
<CAPTION>
PENSION BENEFITS POSTRETIREMENT BENEFITS
1998 1997 1998 1997
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Change in plan assets
Fair value of plan assets, beginning of the year $11,197 $ 9,081
Actuarial return on plan assets 837 1,838
Employer contribution 930 918 $1,056 $735
Benefits paid (649) (640) (1,056) (735)
--------------- --------------- --------------- ---------------
Fair value of plan assets, end of year $12,315 $11,197 - -
=============== =============== =============== ===============
Funded Status (1,424) (1,440) (17,798) (18,874)
Prior service costs 98 108 (509)
Cumulative net (gain) or loss 1,691 1,227 1,753 3,155
--------------- --------------- --------------- ---------------
(Accrued)prepaid pension/postretirement cost $ 365 $ (105) $(16,554) $(15,719)
=============== =============== =============== ===============
Amounts recognized in the statement of financial
position consist of:
Prepaid benefit cost $ 365 $ (105)
Accrued benefit liability $(16,554) $(15,719)
Intangible asset
Accumulated other comprehensive income (1,160) (980)
--------------- --------------- --------------- ---------------
Net amount recognized $ (795) $(1,085) $(16,554) $(15,719)
=============== =============== =============== ===============
</TABLE>
<TABLE>
<CAPTION>
PENSION BENEFITS POSTRETIREMENT BENEFITS
1998 1997 1996 1998 1997 1996
------------ ---------- ---------- ------------- ------------ ----------
<S> <C> <C> <C> <C> <C> <C>
Weighted average assumptions as of December 31 7.0% 7.0% 7.5% 7.0% 7.0% 7.5%
Long-term rate of return on assets 8.5% 8.5% 8.5% N/A N/A N/A
Rate of compensation increase 4.5% 4.5% 4.5%
Medical trend rates 5% to 8% 5% to 8% 5% to 8%
</TABLE>
<PAGE> 19
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
7. EMPLOYEE BENEFIT PLANS, CONTINUED:
For measurement purposes, an 8 percent annual rate increase in the per capita
cost of covered health care benefits was assumed for 1998. The rate was assumed
to decrease gradually to 5 percent by 2011 and remain at that level hereafter.
Assumed health care cost trend rates have a significant effect on the amounts
reported for the health care plan. A one-percent point change in assumed health
care cost trend rates would have the following effects:
<TABLE>
<CAPTION>
1 PERCENTAGE POINT 1 PERCENTAGE POINT
INCREASE DECREASE
<S> <C> <C>
Effect on total of service and interest cost components $ 346 $ (270)
effect on postretirement benefit obligation $2,876 $(2,060)
</TABLE>
<TABLE>
<CAPTION>
PENSION BENEFITS POSTRETIREMENT BENEFITS
1998 1997 1996 1998 1997 1996
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Components of net periodic
pension/postretirement cost
Service cost $487 $505 $693 $ 679 $ 584 $ 539
Interest cost 889 819 739 1,166 1,232 1,143
Expected return on assets (954) (775) (658)
Amortization of unrecognized
Prior service costs 10 10 13 (18) 34 17
(Gain)/Loss 28 44 59
Cumulative net (gain) loss 17
---------- ---------- ---------- ---------- ---------- ----------
Net periodic pension/postretirement cost $460 $620 $846 $1,827 $1,850 $1,699
========== ========== ========== ========== ========== ==========
</TABLE>
Savings and Investment Plan: Substantially all employees are eligible to
participate in a savings and investment plan. The Company sponsors two plans,
one for members of the collective bargaining unit and one for salaried and other
eligible employees. The plans provide for contributions by employees, through
salary reductions, and for a matching contribution by the Company based on a
rate determined for each plan year by the Board of Directors of the Company. The
plans also provide for a discretionary contribution by the Company. No Company
contributions were made to the plan in 1998, 1997 or 1996.
Deferred Compensation Program: The Company has a deferred compensation program
under which certain employees may elect to postpone receipt of a portion of
their earnings. The amounts so deferred are deposited in a trust account, but
remain assets of the Company. The trustees of the program are officers and a key
employee of the Company.
<PAGE> 20
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
7. EMPLOYEE BENEFIT PLANS, CONTINUED:
Profit Sharing Plan: The Company maintains a profit sharing plan covering union
and salaried employees. The amount of the profit sharing bonus is determined by
the Company's return on sales and is calculated based upon the wages of eligible
employees. Company contributions for 1998, 1997 and 1996 were $1,404, $1,327 and
$794 respectively.
8. INCOME TAXES:
The provision for income taxes for the years ended December 31, 1998, 1997 and
1996 consisted of the following:
<TABLE>
<CAPTION>
1998 1997 1996
----------------- ----------------- ----------------
<S> <C> <C> <C>
Federal $8,576 $6,327 $3,433
State 1,448 1,105 642
Deferred (826) 264 806
----------------- ----------------- ----------------
9,198 7,696 4,881
Tax effect of extraordinary item (shown separately). 622
----------------- ----------------- ----------------
$9,198 $7,696 $5,503
================= ================= ================
</TABLE>
The Company's effective tax rate differed from the federal statutory rate as
follows:
<TABLE>
<CAPTION>
1998 1997 1996
----------------- ----------------- ----------------
<S> <C> <C> <C>
Federal statutory rate 35.0% 35.0% 35.0%
Effect of state and local taxes 4.0% 3.7% 3.6%
Change in tax liability - - -
Other 0.1% 0.4% 1.4%
----------------- ----------------- ----------------
39.1% 39.1% 40.0%
================= ================= ================
</TABLE>
<PAGE> 21
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
8. INCOME TAXES, CONTINUED:
The components of the net deferred tax benefits (liabilities) as of December 31,
1998 and 1997 were as follows:
<TABLE>
<CAPTION>
1998 1997
-------------------- ------------------
<S> <C> <C>
Current:
Inventories $ (659) $ (705)
Accrued expenses 1,644 1,628
Other - (181)
-------------------- ------------------
$ 985 $ 742
Long-term:
Basis of property and equipment $(1,862) $(1,618)
Postretirement benefits liability 6,761 6,420
Accrued expenses 1,086 600
-------------------- ------------------
$ 5,985 $ 5,402
==================== ==================
</TABLE>
The sources of timing differences and the related deferred tax effects were as
follows:
<TABLE>
<CAPTION>
1998 1997 1996
--------------------- -------------------- --------------------
<S> <C> <C> <C>
Accrued expenses $(647) $340 $970
Postretirement benefits liability (341) (456) (318)
Depreciation 244 225 212
Inventories (46) (57) (52)
Other (26) 212 (6)
--------------------- -------------------- --------------------
$(816) $264 $806
===================== ==================== ====================
</TABLE>
Valuation allowances are established when necessary to reduce deferred tax
assets to the amounts expected to be realized.
<PAGE> 22
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
9. PREFERRED STOCK, CONTINUED:
The Company is authorized to issue shares of Series A preferred stock in which
each share has one vote with a fixed aggregate of 12% of the total vote. The
holders of this preferred stock will vote together with the holders of the
Company's common stock on all matters submitted to the Company's stockholders.
Holders may require the Company to redeem preferred shares proportionately to
any reduction in shares held by MLGA Fund II, L.P. At December 31, 1998 and 1997
no Series A preferred stock was outstanding.
The Board of Directors is authorized, subject to any limitations prescribed by
law, to issue preferred stock in one or more classes or series and to fix the
designations, voting powers, preferences, rights, qualifications, limitations or
restrictions of any such class or series, including dividend rights, dividend
rates, redemption prices and terms, conversion rights and liquidation
preferences of each class or series of preferred stock, without any further vote
or action by the stockholders of the Company.
10. STOCK OPTIONS:
On October 13, 1995, the stockholders approved a qualified incentive stock
option program under which 315,226 shares of the Company's common stock are
reserved for grants to key employees (The "1995 Stock Option Plan"). The option
price is to be determined by the Board, but may not be less than 100% of the
fair market value of the Company's common stock at the time of the grant and
options must be exercised within ten years from the date of grant. The options
vest and become exercisable in three annual installments commencing on the first
anniversary of the date of the grant. On June 3, 1997, the stockholders approved
an amendment to the 1995 Stock Option Plan increasing the number of shares of
the Company's common stock reserved for grants under the program to 515,226.
On May 20, 1998, the stockholders approved a qualified incentive stock option
plan under which 300,000 shares of the Company's common stock are reserved for
grants to key employees. The plan includes provisions for pricing and vesting
which are the same as the above plan. The stockholders also approved an employee
stock purchase plan under which 300,000 shares of the Company's common stock may
be sold at a 15% market price reduction. Common shares sold through the plan are
being purchased in the open market.
<PAGE> 23
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
10. STOCK OPTIONS, CONTINUED:
The following summarizes the changes in the number of Common Shares under
option:
<TABLE>
<CAPTION>
(Options in thousands) 1998 1997 1996
----------------- ---------------- -----------------
<S> <C> <C> <C>
Options outstanding at beginning of year 514 278 132
Options granted during the year - 237 151
Options exercised during the year (5) (1)
Options canceled during the year (5)
----------------- ---------------- -----------------
Options outstanding at end of year 509 514 278
----------------- ---------------- -----------------
Option price range per share $2.71- $2.71- $2.71-
$13.75 $13.75 $6.32
</TABLE>
The Company's current option plans, which provide for a total of 815 options (6
of which have been exercised), have 300 options remaining for future grants at
December 31, 1998.
The ranges of exercise prices and the remaining contractual life of options as
of December 31, 1998 were:
<TABLE>
<CAPTION>
Range of exercise prices: $2.71 $6.32 $12-$13.75
-------------------- -------------------- --------------------
<S> <C> <C> <C>
Options outstanding in thousands:
Outstanding as of December 31, 1998 132 140 237
Weighted-average remaining contractual life (in
years) 6.78 7.30 8.45
Weighted-average exercise price $2.71 $6.32 $13.47
Options exercisable in thousands:
Outstanding as of December 31, 1998 132 53 79
Weighted-average remaining contractual life (in
years) 6.78 7.30 8.45
Weighted-average exercise price $2.71 $6.32 $13.47
</TABLE>
On August 15, 1996, an unqualified stock option for 10,000 shares of common
stock was granted to a director at the exercise price of $2.71.
<PAGE> 24
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
10. STOCK OPTIONS, CONTINUED:
In October 1995, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 123, "Accounting for Stock-Based
Compensation." This statement defines a fair value based method of accounting
for an employee stock option or similar equity instrument. The statement does,
however, allow an entity to continue to measure compensation cost for those
plans using the intrinsic value based method of accounting prescribed by
Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued To
Employees."
In 1996, the Company adopted provisions of SFAS No. 123 by providing disclosures
of the pro forma effect on net income and earnings per share that would result
if the fair value compensation element were to be recognized as expense. The
following table shows the pro forma earnings and earnings per share for 1998,
1997 and 1996 along with significant assumptions used in determining the fair
value of the compensation amounts.
<TABLE>
<CAPTION>
1998 1997 1996
------------------- ------------------- ------------------
<S> <C> <C> <C>
Pro forma amounts:
Net income $14,019 $11,777 $7,242
Earnings per share (basic) 1.52 1.32 1.04
Earnings per share (diluted) 1.51 1.31 1.03
Assumptions:
Dividend yield 0 0 0
Expected volatility 36.75% 36.75% 34.46%
Risk free interest rate 6.20-6.73% 6.20-6.73% 6.30%
Expected lives 4 years 4 year 4 years
</TABLE>
During fiscal years 1997 and 1996 the weighted average grant-date fair value of
options granted was $5.08 and $2.31 per share, respectively. No options were
granted in 1998.
11. CONTINGENCIES:
The Company is involved in certain claims and litigation related to its
operations. Based upon the facts known at this time, management is of the
opinion that the ultimate outcome of all such claims and litigation will not
have a material adverse effect on the financial condition, results of operations
or cash flows of the Company.
<PAGE> 25
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
12. PRO FORMA INFORMATION:
Net income and net income per share are presented below as if the 1995
Recapitalization, the issuance of shares of common stock pursuant to the initial
public offering and the application of the net proceeds thereof to the reduction
in debt, all had occurred as of January 1, 1995.
<TABLE>
<CAPTION>
1996
-------------------
<S> <C>
Net Income as reported $7,313
Extraordinary charge 973
Reduction in interest expense using an average interest rate of 8.2% including
the elimination of amortization of deferred financing costs 2,013
Increase in income taxes related to the pro forma adjustments (763)
-------------------
Pro forma net income $9,536
===================
Average shares outstanding as if the initial public offering had occurred on
January 1, 1995 8,939,294
Pro forma net income per share $1.07
</TABLE>
13. EXTRAORDINARY ITEM:
The early repayment of the term debt and subordinated debt with the proceeds of
the initial public offering resulted in the write-off of $723 of deferred
financing costs and unamortized discount on the subordinated debt of $872 which
have been accounted for as an extraordinary charge resulting from early
extinguishment of debt net of applicable income taxes of $622. Total income
before taxes after consideration of these extraordinary expenses amounted to
$12,194 for the year ended December 31, 1996.
14. SEGMENT REPORTING:
During the fourth quarter of 1998, the Company adopted Statement of Financial
Accounting Standard No. 131, "Disclosure about Segments of an Enterprise and
Related Information." Management has determined that the Company operates in a
single industry segment, construction equipment. The Company's operations
involve manufacturing specialized construction equipment and parts. While the
Company's chief operating decision maker monitors the revenue streams of the
different products, operations are managed and financial performance is measured
in the construction equipment segment.
<PAGE> 26
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
14. SEGMENT REPORTING, CONTINUED:
Products and Services: The Company groups its products and services into the
following categories:
1. Material Handlers-Machines typically used to move a variety of construction
materials around jobsites and industrial facilities. 2. Excavators-Machines used
for ditching, sloping, finish grading, general maintenance and infrastructure
projects. 3. Parts & Distribution-Parts and service support for Gradall
machines.
The revenues generated by these products and services at December 31 were:
<TABLE>
<CAPTION>
($ IN THOUSANDS) 1998 1997 1996
- ---------------------------------------------------------- ------------------- ------------------- -------------------
<S> <C> <C> <C>
Material Handlers $110,161 $ 84,004 $ 70,409
Excavators 54,580 57,361 55,096
Parts & Distribution 17,866 17,294 15,404
------------------- ------------------- -------------------
$182,607 $158,659 $140,909
=================== =================== ===================
</TABLE>
Foreign and Domestic Sales: The Company sells equipment and parts to countries
outside of the United States. There were no foreign countries with sales greater
than 10% of total revenue. The domestic and foreign revenues generated at
December 31 by domestic and foreign were:
<TABLE>
<CAPTION>
($ IN THOUSANDS) 1998 1997 1996
- ---------------------------------------------------------- ------------------- ------------------- -------------------
<S> <C> <C> <C>
United States $176,796 $153,444 $138,330
All other countries 5,811 5,215 2,579
------------------- ------------------- -------------------
$182,607 $158,659 $140,909
=================== =================== ===================
</TABLE>
Major Customers: For the years ended December 31, 1998 and 1996, one customer
accounted for 10% or more of the Company's total revenue. No customers have
accounted for 10% or more of the Company's total revenue for the year ended
December 31, 1997. At December 31, 1998, the customer accounted for 13%, and at
December 31, 1996, the customer accounted for 11% of the Company's total
revenue.
<PAGE> 27
Gradall Industries, Inc.
Notes to Consolidated Financial Statements
(dollars in thousands, except per share amounts)
15. SELECTED SUMMARY QUARTERLY DATA (UNAUDITED):
<TABLE>
<CAPTION>
QUARTERS ENDED (2)
1997
MAR. 31, JUN. 30, SEP. 30 DEC. 31,
-------------- --------------- -------------- --------------
<S> <C> <C> <C> <C>
Net Sales $35,910 $38,356 $40,310 $44,083
Gross Profit 8,618 9,267 9,814 10,297
Operating Income 4,674 4,735 5,310 5,921
Income Before Income Taxes 4,363 4,231 5,250 5,843
Net Income 2,657 2,577 3,199 3,558
Earnings Per Share (1)
Basic $.30 $.29 $.36 $.40
Dilutive $.30 $.29 $.35 $.39
</TABLE>
<TABLE>
<CAPTION>
QUARTERS ENDED (2)
1998
MAR.31 JUN. 30, SEP. 30, DEC. 31,
-------------- -------------- -------------- ----------------
<S> <C> <C> <C> <C>
Net Sales $41,541 $49,789 44,138 $47,139
Gross Profit 9,551 11,143 9,980 11,477
Operating Income 5,234 6,018 5,779 6,932
Income Before Income Taxes 5,011 5,878 5,926 6,737
Net Income 3,054 3,582 3,612 4,106
Earnings Per Share (1)
Basic $.34 $.40 $.38 $.43
Dilutive $.34 $.40 $.38 $.43
</TABLE>
(1) Based on average shares outstanding during the quarter.
(2) The sum of each year's quarterly data may not equal the total year results
due to rounding.
<PAGE> 28
Report of Independent Accountants
TO THE BOARD OF DIRECTORS AND STOCKHOLDERS OF GRADALL INDUSTRIES, INC.
In our opinion, the accompanying consolidated balance sheets and related
consolidated statements of income, changes in stockholders' equity and cash
flows present fairly, in all material respects, the financial position of
Gradall Industries, Inc. and its subsidiaries (the "Company") at December 31,
1998 and 1997, and the results of their operations and their cash flows for each
of the three years in the period ended December 31, 1998, in conformity with
generally accepted accounting principles. These financial statements are the
responsibility of the Company's management; our responsibility is to express an
opinion on these financial statements based on our audits. We conducted our
audits of these statements in accordance with generally accepted auditing
standards which require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for the opinion expressed above.
/s/ PricewaterhouseCoopers LLP
Cleveland, Ohio
February 23, 1999
<PAGE> 29
GRADALL INDUSTRIES, INC.
FINANCIAL STATEMENTS
THREE MONTHS ENDED MARCH 31, 1999
CONTENTS
Unaudited condensed income statement for the three months ended March 31, 1999
and March 31, 1998
Unaudited condensed balance sheet as of March 31, 1999
Unaudited condensed statement of cash flows for the three month period ended
March 31, 1999 and 1998
Noted to the unaudited condensed financial statements
<PAGE> 30
GRADALL INDUSTRIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
MARCH 31, 1999 MARCH 31, 1998
---------------------- ----------------------
<S> <C> <C>
Net Sales $50,532 $41,541
Cost of sales 38,617 31,990
---------------------- ----------------------
Gross profit 11,915 9,551
Operating expenses:
Research, development and product
engineering costs 1,346 1,054
Selling, general and administrative expenses 4,191 3,263
---------------------- ----------------------
Operating income 6,378 5,234
Interest, net 173 218
Other, net 34 5
---------------------- ----------------------
Income before provision for taxes 6,171 5,011
Income tax provision 2,410 1,957
---------------------- ----------------------
Net income $ 3,761 3,054
====================== ======================
Earning per common share:
Basic:
Weighted average shares outstanding 9,512,408 8,940,194
Earnings per common share $0.40 $0.34
Diluted:
Weighted average shares outstanding 9,605,028 9,023,295
Earning per common share $0.39 $0.34
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements
<PAGE> 31
GRADALL INDUSTRIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
MARCH 31, 1999
-----------------
<S> <C>
ASSETS
Current assets:
Cash $ 730
Accounts receivable - trade, net of allowance for doubtful accounts. 34,237
Inventories 36,857
Prepaid expenses and deferred charges 1,834
Deferred income taxes 985
-----------------
Total current assets 74,643
Deferred income taxes 6,060
Property, plant and equipment, net 25,925
Other assets 1,205
-----------------
Total assets $107,833
=================
LIABILITIES & STOCKHOLDERS' EQUITY Current liabilities:
Current portion long term debt $ 11,034
Accounts payable - trade 17,569
Accrued other expenses 14,303
-----------------
Total current liabilities 42,906
-----------------
Long term obligations:
Long-term debt, net of current portion 332
Accrued post-retirement benefit cost 16,748
Other long term liabilities 1,688
-----------------
Total long term obligations 18,768
-----------------
Total liabilities 61,674
-----------------
Stockholders' equity:
Common stock, $.001 par value; 18,000,000 shares. Authorized; 9,515,460 and
9,508,231 issued and outstanding on March 31, 1999 and December 31, 1998,
respectively 10
Additional paid-in capital 45,828
Retained earnings 1,028
Accumulated other comprehensive loss (707)
-----------------
Total stockholders' equity 46,159
-----------------
Total liabilities and stockholders' equity. $107,833
=================
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
<PAGE> 32
GRADALL INDUSTRIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
------------------------------------------
MARCH 31, MARCH 31,
1999 1998
------------------------------------------
<S> <C> <C>
Operating Activities:
Net income $3,761 $3,054
Adjustments to reconcile net income to net cash used in operating
activities:
Post-retirement benefit transition obligation 194 350
Depreciation and amortization 1,000 575
Gain on sale of property - (26)
Deferred income taxes (75) (137)
Increase in accounts receivable (7,254) (1,000)
Increase in inventories (3,985) (270)
Decrease in prepaid expenses 676 1,161
Increase (decrease) in accounts payable and accrued expenses 1,133 (3,482)
--------------------- --------------------
Net cash provided by (used) in operating activities (4,550) 225
--------------------- --------------------
Investing Activities:
Proceeds from the sale of property, plant & equipment - 66
Purchase of property, plant and equipment (935) (985)
--------------------- --------------------
Net cash used in investing activities (935) (919)
--------------------- --------------------
Financing Activities:
Issuance of 7,229 shares common stock 23 -
Net borrowing under lines of credit 3,839 1,261
Repayments on capital leases (104) (68)
--------------------- --------------------
Net cash provided by financing activities 3,758 1,193
--------------------- --------------------
Net (decrease) increase in cash (1,727) 499
--------------------- --------------------
Cash at beginning of year 2,457 1,605
--------------------- --------------------
Cash at end of period $ 730 2,104
===================== ====================
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
<PAGE> 33
GRADALL INDUSTRIES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
1. BASIS OF PRESENTATION:
The unaudited interim financial information as of March 31, 1999 and for the
three months ended March 31, 1999 and 1998 has been prepared on the same basis
as the audited financial statements. In the opinion of management such unaudited
information includes all adjustments (consisting only of normal recurring
adjustments) necessary for a fair presentation of the interim information.
Operating results for the three months ended March 31, 1999 are not necessarily
indicative of the results that may be expected for the entire year ending
December 31, 1999.
These financial statements and the notes thereto should be read in conjunction
with the Company's audited financial statements included in its Annual Report or
Form 10-K for the fiscal year ended December 31, 1998.
2. OTHER COMPREHENSIVE INCOME:
The Company has no significant items of other comprehensive income.
3. NEW ACCOUNTING STANDARDS:
In March 1998 the Accounting Standards Executive Committee issued Statement of
Position ("SOP") 98-1, "Accounting for the Costs of Computer Software Developed
or Obtained for Internal Use," which is effective for financial years beginning
after December 15, 1998. The Company adopted the provisions of this SOP
beginning January 1, 1999, which had no significant effect on the Company's
consolidated financial statements.
4. INVENTORIES:
Inventories were comprised of
<TABLE>
<CAPTION>
MAR. 31, 1999
---------------------
<S> <C>
Raw materials $ 1,292
Work in process 24,475
Finished goods 17,178
---------------------
42,945
LIFO reserve (6,088)
---------------------
Total inventories $ 36,857
=====================
</TABLE>
<PAGE> 34
GRADALL INDUSTRIES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED) (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
5. EARNINGS PER COMMON SHARE:
The computation of the earnings per common share are as follows:
<TABLE>
<CAPTION>
MARCH 31, MARCH 31,
1999 1999
--------------------- ---------------------
<S> <C> <C>
Common shares:
Weighted average common shares outstanding - basic 9,512,408 8,940,194
Additional common shares issuable for stock options 92,620 83,101
--------------------- ---------------------
Common shares - diluted 9,605,028 9,023,295
===================== =====================
</TABLE>
6. FINANCING:
In January 1999 the Company's Loan and Security Agreement with Heller Financial,
Inc. was paid in full and terminated. A new revolving line of credit for $17
million was established with KeyBank National Association (the "Lender") with an
unsecured demand promissory note. At March 31, 1999, borrowing under the new
revolving credit facility totaled $10.8 million, and $4.2 million was available
under the facility. On April 21, 1999 the revolving line of credit with KeyBank
was increased to $22 million,. The note bears interest at either LIBOR plus .80%
or prime minus 1.40%. The note renews annually and terminates at the earlier of
the Lender's demand or the Company's decision to terminate by written or oral
communication to the Lender.
7. CONTINGENCIES:
The Company is involved in certain claims and litigation related to its
operations. Based upon the facts known at this time, management is of the
opinion that the ultimate outcome of all such claims and litigation will not
have a material adverse effect on the financial condition, results of operations
or cash flows of the Company.
8. NEW COMPANY:
On October 13, 1998, a new company, The Gradall Orrville Company, was formed as
a wholly owned subsidiary of Gradall Industries, Inc., to purchase a new
production plant at Orrville, Ohio. The new facility, formerly the Volvo Truck
Assembly plant, contains 330,000 square feet and will provide additional
production space for the material handler product.
<PAGE> 35
JLG INDUSTRIES, INC.
UNAUDITED PRO-FORMA COMBINED FINANCIAL STATEMENTS
CONTENTS
Introduction to the unaudited pro forma combined financial statements
Unaudited pro forma combined income statement for the nine months ended April
30, 1999
Unaudited pro forma combined income statement for the twelve months ended July
31, 1998
Unaudited Pro forma combined balance sheet as of April 30, 1999
Notes to the unaudited pro forma combined financial statements
<PAGE> 36
JLG INDUSTRIES, INC.
INTRODUCTION TO THE UNAUDITED PRO FORMA COMBINED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
The unaudited pro forma combined financial statements give retroactive effect to
the acquisition of Gradall Industries, Inc. by the Company effective June 15,
1999 (the date that control of Gradall was transferred to the Company). The
acquisition of Gradall was accounted for by the Company as a purchase.
Pro forma adjustments to the unaudited pro forma combined statements of income
assume that the transaction were consummated on August 1, 1997, the commencement
of the Company's 1998 fiscal year, and are based on the allocated purchase price
as reported in the pro forma combined balance sheet at April 30, 1999.
The purchase price for the acquisition of Gradall was $208,194 including
expenses of $6,700. The purchase price was allocated as follows:
<TABLE>
<S> <C>
Cash $ 5,064
Accounts receivable 25,672
Inventories, net 52,715
Other current assets 1,219
Property and equipment, net 31,458
Other assets, non-current 6,289
Goodwill 155,531
--------
Total assets $277,948
Current portion of long-term debt 12,879
Accounts payable 18,152
Accrued expenses 14,065
Long term debt - less current portion 457
Accrued employee benefits 24,138
--------
69,691
--------
Total purchase price $208,257
========
</TABLE>
<PAGE> 37
JLG INDUSTRIES, INC.
INTRODUCTION TO THE UNAUDITED PRO FORMA COMBINED FINANCIAL STATEMENTS
(CONTINUED)
(DOLLARS IN THOUSANDS)
The value of goodwill will be amortized over a twenty-five year period, and will
be reviewed if the facts and circumstances suggest that the value of the
goodwill is impaired, based on analysis of future cash flows from the Gradall
business. If this review indicates that the goodwill will not be recoverable,
the Company's carrying value of the goodwill will be reduced accordingly.
These unaudited pro forma combined financial statements may not be indicative of
the results that may be obtained in the future. The unaudited pro forma combined
financial statements, including the notes thereto, should be read in conjunction
with the historical financial statements of the Company and Gradall.
The Company has a fiscal year end of July 31st while Gradall has a year end of
December 31st. For purposes of preparing these pro forma unaudited combined
financial statements, an annual twelve month period end of July 31, 1998 and
June 30, 1998 was utilized for the Company and Gradall, respectively. In
addition, a nine month period end of April 30, 1999 and March 31, 1999 was
utilized for the Company and Gradall, respectively. Management of the Company
does not believe that the results of operations reported on the same fiscal
period end as the Company and Gradall would be materially different than as
reported using the aforementioned period ends.
<PAGE> 38
JLG INDUSTRIES, INC.
UNAUDITED PRO FORMA COMBINED INCOME STATEMENT
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
PRO FORMA
JLG GRADALL COMBINED
APRIL 30, MARCH PRO FORMA APRIL 30,
1999 31,1999 ADJUSTMENTS 1999
----------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $463,637 $141,809 $605,446
Cost of sales 358,293 108,437 399 (a) 467,129
----------------------------------------------------------
Gross profit 105,344 33,372 (399) 138,317
Selling, administrative and product
development expense 49,858 14,283 64,141
Goodwill amortization 4,864 (b) 4,864
- -
----------------------------------------------------------
Income from operations 55,486 19,089 (5,263) 69,312
Other income (deductions):
Interest expense (219) (176) (9,930) (c) (10,325)
Miscellaneous, net 1,743
1,822 (79)
----------------------------------------------------------
Income before income taxes 57,089 18,834 (15,193) 60,730
Income tax provision 18,210 7,355 (4,039) (d) 21,526
----------------------------------------------------------
Net income $38,879 $11,479 ($11,154) $39,204
==========================================================
Earnings per common share $0.89 $0.90
============ ===============
Earnings per common share -
assuming dilution $0.87 $0.87
============ ===============
Weighted average shares outstanding 43,792 43,792
============ ===============
Weighted average shares outstanding -
assuming dilution 44,915 44,915
============ ===============
</TABLE>
<PAGE> 39
JLG INDUSTRIES, INC.
UNAUDITED PRO FORMA COMBINED INCOME STATEMENT
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED
PRO FORMA
JLG GRADALL COMBINED
JULY 31, JUNE 30, PRO FORMA JULY 31,
1998 1998 ADJUSTMENTS 1998
----------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $530,859 $175,723 $706,582
Cost of sales 402,702 134,918 532 (a) 538,152
----------------------------------------------------------
Gross profit 128,157 40,805 (532) 168,430
Selling, administrative and product
development expense 55,388 18,322 73,710
Goodwill amortization 6,486 (b)
- - 6,486
Restructuring charges
1,689 - 1,689
----------------------------------------------------------
Income from operations 71,080 22,483 (7,018) 86,545
Other income (deductions):
Interest expense (254) (659) (13,240) (c) (14,153)
Miscellaneous, net (356) 158 (198)
----------------------------------------------------------
Income before income taxes 70,470 21,982 (20,258) 72,194
Income tax provision 23,960 8,589 (5,385) (d) 27,164
----------------------------------------------------------
Net income $46,510 $13,393 ($14,873) $45,030
==========================================================
Earnings per common share $1.07 $1.03
============ =============
Earnings per common share -
assuming dilution $1.05 $1.01
============ =============
Weighted average shares outstanding 43,666 43,666
============ =============
Weighted average shares outstanding -
assuming dilution 44,431 44,431
============ =============
</TABLE>
<PAGE> 40
JLG INDUSTRIES, INC.
UNAUDITED PRO FORMA COMBINED BALANCE STATEMENT
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
PRO FORMA
JLG GRADALL COMBINED
APRIL 30, MARCH 31, PRO FORMA APRIL 30,
1999 1999 ADJUSTMENTS 1999
---------------------------------------------------------------
<S> <C> <C> <C> <C>
ASSETS
Current assets
Cash $ 37,989 $ 730 $209,613 (e) $ 25,778
(198,647) (f)
(10,966) (g)
(12,941) (h)
Accounts receivable 135,878 34,237 (400) (i) 169,715
Inventories 75,565 36,857 10,744 (j) 123,166
Other current assets 8,315 2,819 (116) (k) 11,018
---------------------------------------------------------------
Total current assets 257,747 74,643 (2,713) 329,677
Property, plant and equipment, net 56,250 25,925 1,995 (l) 84,170
Equipment held for rental, net of
accumulated depreciation of $5,166
30,667 - 30,667
Other assets 13,405 7,265 1,949 (m) 21,168
(1,451) (n)
Goodwill 162,143 (o) 162,143
---------------------------------------------------------------
$358,069 $107,833 $161,923 $627,825
===============================================================
</TABLE>
<PAGE> 41
JLG INDUSTRIES, INC.
UNAUDITED COMBINED BALANCE STATEMENT
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
PRO FORMA
JLG GRADALL COMBINED
APRIL 30, MARCH 31, PRO FORMA APRIL 30,
1999 1999 ADJUSTMENTS 1999
-------------------------------------------------------------------
<S> <C> <C> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
Current portion of long-term debt $ 1,256 $11,034 $207,493 (e) $208,817
(10,966) (g)
Accounts payable 59,168 17,569 3,137 (p) 79,874
Accrued expenses and other current 14,303 1,347 (q) 48,394
liabilities 32,214 530 (r)
-------------------------------------------------------------------
Total current liabilities 92,638 42,906 201,541 337,085
Long-term debt - less current portion 2,254 332 2,586
Provisions for contingencies 10,510 1,688 360 (s) 12,558
Accrued employee benefits 6,701 16,748 6,181 (t) 29,630
Shareholders' equity
Capital stock:
Authorized shares: 100,000 at
$0.20 par value. Issued and
outstanding shares: 44,096 8,820 10 (10) (u) 8,820
Additional paid-in capital 15,534 45,828 (45,828) (u) 15,534
Unearned compensation (1,464) - (1,464)
Accumulated other comprehensive
income (4,760) (707) 707 (u) (4,760)
Retained earnings 227,836 1,028 (1,028) (u) 227,836
-------------------------------------------------------------------
Total shareholders' equity 245,966 46,159 (46,159) 245,966
-------------------------------------------------------------------
$358,069 $107,833 $161,923 $627,825
===================================================================
</TABLE>
<PAGE> 42
JLG INDUSTRIES, INC.
NOTES TO UNAUDITED PRO FORMA COMBINED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(a) Pro forma adjustment to cost of sales relates to the additional pro forma
depreciation expense associated with the write up of property, plant and
equipment to replacement cost.
(b) Pro forma adjustment to reflect straight-line amortization of $161,318 of
goodwill over a twenty-five year life.
(c) In connection with the acquisition, the Company obtained financing from a
third party. This adjustment reflects the pro forma interest expense at a
pro forma annual average rate of 6.193%. In addition, the pro forma
interest expense adjustment reflects amortization of deferred financing
costs amortized over the five year life of the debt.
(d) This adjustment relates to the tax benefit associated with the pro forma
adjustments for depreciation and interest expense. Goodwill amortization
is non-deductible.
(e) Pro forma adjustment reflects the debt issued in connection with the
acquisition of Gradall.
(f) This pro forma adjustment to cash represents the pro forma acquisition
cost associated with the acquisition of the outstanding shares of Gradall.
(g) In connection with the issuance of the debt issued as noted in note (f)
above, certain debt of Gradall was repaid at the time of the closing by
the Company. This adjustment reflects the repayment of this debt.
(h) Pro forma adjustment to cash represents the payment of the expenses
associated with the Gradall acquisition.
(i) This pro forma adjustment represents an adjustment to state accounts
receivable at net realizable value.
(j) Pro forma adjustment to inventory is to finished inventory and work in
process to be recorded at estimated selling prices less the sum of (a)
costs of disposal and (b) a reasonable profit allowance for the selling
effort of the acquiring corporation and raw materials at replacement cost.
(k) This pro forma adjustment states other current assets at net realizable
value.
(l) Pro forma adjustment to record property, plant and equipment at
replacement cost.
(m) Pro forma adjustment to record the deferred financing costs associated
with new debt issued in connection with the acquisition.
(n) This pro forma adjustment represents the reduction in the net deferred tax
asset, non-current, associated with the accounting for the various
adjustments to reflect the balance sheet at net realizable value and
replacement costs.
(o) This pro forma adjustment represents the pro forma excess purchase price
over net assets acquired.
(p) The pro forma adjustment to accounts payable represents the recording of
the liability for inventory received by the closing date which had not
been invoiced by the closing date.
(q) This pro forma adjustment reflects the accrual of expenses of the
acquisition.
(r) Pro forma adjustment to current tax provisions.
(s) The pro forma adjustment represents the accrual for product liability.
<PAGE> 43
JLG INDUSTRIES, INC.
NOTES TO UNAUDITED PRO FORMA COMBINED FINANCIAL STATEMENTS
(CONTINUED)
(DOLLARS IN THOUSANDS)
(t) The pro forma adjustment to employee benefits represents the unrecognized
net obligation associated with the defined benefit pension plans, post
retirement medical insurance plans and other retirement plans.
(u) Elimination of Gradall capital.
<PAGE> 44
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
JLG Industries, Inc.
(Registrant)
By: /s/ Charles H. Diller, Jr.
---------------------------------------
Charles H. Diller, Jr.
Executive Vice President and Chief
Financial Officer
DATED: August 30, 1999
<PAGE> 1
EXHIBIT 10.2
(First Union Credit Agreement)
<PAGE> 2
THIS CREDIT AGREEMENT (this "Agreement"), dated the ____ day of June,
1999, is made by and among JLG INDUSTRIES, INC., a Pennsylvania corporation
("JLG"), the Subsidiaries (as hereinafter defined) of JLG listed on Schedule 1
hereto (together with JLG, individually and collectively, "Borrowers"), the
Lenders who are or may become a party to this Agreement, and FIRST UNION
NATIONAL BANK, as Administrative Agent for the Lenders.
STATEMENT OF PURPOSE
The Borrowers have requested, and the Lenders have agreed, to extend
certain credit facilities to the Borrowers on the terms and conditions of this
Agreement in order for the Borrowers to, among other things, (i) acquire one
hundred percent of the stock of Gradall Industries, Inc. pursuant to a Tender
Offer and Merger (as defined below), (ii) refinance certain existing
indebtedness, and (iii) provide for additional working capital.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
I.
DEFINITIONS
A. Definitions. The following terms when used in this Agreement shall
have the meanings assigned to them below:
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Administrative Agent" means First Union in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 12.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1(c).
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person or any of its Subsidiaries. The term control means (a) the
power to vote ten percent (10%) or more of the securities or other equity
interests of a Person having ordinary voting power, or (b) the possession,
directly or indirectly, of any other power to direct or cause the direction of
the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or modified at any time or
from time to time pursuant to the terms hereof. On the Closing Date, the
Aggregate Commitment shall be Two Hundred Fifty Million Dollars ($250,000,000).
<PAGE> 3
"Agreement" means this Credit Agreement, together with the schedules
and exhibits attached hereto, as amended, restated or otherwise modified.
"Applicable Law" means all applicable provisions of constitutions,
laws, statutes, ordinances, rules, treaties, regulations, requirements of
Governmental Approvals and orders of courts, arbitrators (which have been
entered and filed with a court of competent jurisdiction) or Governmental
Authorities.
"Applicable Margin" shall have the meaning assigned thereto in Section
4.1(c).
"Application" means an application, in the form specified by the
Issuing Lender from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 13.10.
"Available Commitment" means, as to any Lender at any time, an amount
equal to (a) such Lender's Commitment less (b) such Lender's Extensions of
Credit.
"Base Rate" means, at any time, the higher of (a) the Prime Rate and
(b) the sum of (i) the Federal Funds Rate plus (ii) 1/2 of 1%; each change in
the Base Rate shall take effect simultaneously with the corresponding change or
changes in the Prime Rate or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate based upon
the Base Rate as provided in Section 4.1(a).
"Borrower" means individually, and "Borrowers" means collectively, JLG
Industries, Inc., a Pennsylvania corporation, and each of its Subsidiaries set
forth on Schedule 1 hereto, each in its capacity as a borrower hereunder.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Philadelphia, Pennsylvania and Charlotte, North Carolina, are
open for the conduct of their commercial banking business, and (b) with respect
to all notices and determinations in connection with, and payments of principal
and interest on, any LIBOR Rate Loan, any day that is a Business Day described
in clause (a) and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"Capital Lease" means, with respect to JLG and its Subsidiaries, any
lease of any property that is required, in accordance with GAAP, to be
classified and accounted for as a capital lease on a Consolidated balance sheet
of JLG and its Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in Section
11.1(i).
-2-
<PAGE> 4
"Closing Adjusted Net Worth" means eighty-five percent (85%) of
Consolidated Net Worth of JLG and its Subsidiaries as of July 31, 1998.
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Section 5.1 and Section 5.2 shall be
satisfied or waived in all respects in a manner acceptable to the Administrative
Agent, in its sole discretion.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended, supplemented or otherwise modified.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Loans to and issue or participate in Letters of Credit issued for the
account of the Borrowers hereunder in an aggregate principal or face amount at
any time outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule 2 hereto, as the same may be reduced or modified at any time or
from time to time pursuant to the terms hereof.
"Commitment Percentage" means, as to any Lender at any time, the ratio
of (a) the amount of the Commitment of such Lender to (b) the Aggregate
Commitment of all of the Lenders.
"Consolidated" means, when used with reference to financial statements
or financial statement items of JLG and its Subsidiaries, such statements or
items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"Credit Facility" means the collective reference to the Revolving
Credit Facility and the L/C Facility.
"Debt" means, with respect to the Borrowers and their Subsidiaries at
any date and without duplication, the sum of the following calculated in
accordance with GAAP: (a) all liabilities, obligations and indebtedness, in each
case for borrowed money having a stated maturity of greater than one year and
including without limitation indebtedness with such stated maturity during the
year preceding such stated maturity, including but not limited to obligations
evidenced by bonds, debentures, notes or other similar instruments of any such
Person, (b) all obligations to pay the deferred purchase price of property or
services of any such Person, (c) all obligations of any such Person as lessee
under Capital Leases and under "synthetic" or similar leases, (d) all Debt of
any other Person secured by a Lien on any asset of Borrowers and their
Subsidiaries, (e) all Guaranty Obligations of any such Person, (f) all
obligations, contingent or otherwise, of any such Person relative to the face
amount of letters of credit, whether or not drawn, including without limitation
any Reimbursement Obligation, and banker's acceptances issued for the account of
any such Person, (g) all obligations incurred by any such Person pursuant to
Hedging Agreements, and (h) Operating Lease Value under Operating Leases.
-3-
<PAGE> 5
"Default" means any of the events specified in Section 11.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Dollars or $" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"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, in each case 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, in each case 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.
"Eligible Assignee" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is at the
time of such assignment (a) a commercial bank organized under the laws of the
United States or any state thereof, having combined capital and surplus in
excess of $500,000,000, (b) a commercial bank organized under the laws of any
other country that is a member of the Organization of Economic Cooperation and
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and that has total assets in
excess of $1,000,000,000, (d) already a Lender hereunder (whether as an original
party to this Agreement or as the assignee of another Lender), (e) the successor
(whether by transfer of assets, merger or otherwise) to all or substantially all
of the commercial lending business of the assigning Lender, or (f) any other
Person that has been approved in writing as an Eligible Assignee by the Borrower
and the Administrative Agent.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which is maintained or sponsored by,
contributed to or covering employees of any Borrower or any ERISA Affiliate.
"Environmental Laws" means any and all foreign, federal, state and
local laws, statutes, ordinances, rules, regulations, requirements of
Governmental Approvals and orders of courts or Governmental Authorities,
relating to the protection of human health or the environment, including, but
not limited to, requirements pertaining to the manufacture, processing,
distribution, use,
-4-
<PAGE> 6
treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended, supplemented or otherwise
modified.
"ERISA Affiliate" means any Person who together with any Borrower or
Subsidiary is treated as a single employer within the meaning of Section 414(b),
(c), (m) or (o) of the Code or Section 4001(b) of ERISA.
"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City.
"Event of Default" means any of the events specified in Section 11.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Extensions of Credit" means, as to any Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Credit
Loans made by such Lender then outstanding , (b) such Lender's Commitment
Percentage of the L/C Obligations then outstanding and (c) such Lender's
Commitment Percentage of the Swingline Loans then outstanding (if any).
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then Federal Funds Rate shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Philadelphia time). Rates for weekends or holidays shall be
the same as the rate for the most immediate preceding Business Day.
"First Union" means First Union National Bank, a national banking
association, and its successors.
"Fiscal Year" means the fiscal year of JLG and its Subsidiaries ending
on July 31.
-5-
<PAGE> 7
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the United States
Financial Accounting Standards Board, as from time to time in effect
consistently applied and maintained on a consistent basis for the Borrowers and
their Subsidiaries throughout the period indicated.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Gradall" means Gradall Industries, Inc., a Delaware corporation.
"Guaranty Obligation" means, with respect to the Borrowers and their
Subsidiaries, without duplication: (i) any obligation, contingent or otherwise,
of any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt of any other Person, (ii) any obligation, direct or
indirect, contingent or otherwise, of any such Person to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement to keep well, to
purchase assets, securities or services for less than fair value, to
take-or-pay, or to maintain financial statement condition or otherwise) or (iii)
any obligation, direct or indirect, contingent or otherwise, of any such Person
entered into primarily for the purpose of assuring in any other manner the
obligee of such Debt of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); provided, that the term Guaranty
Obligation shall not include endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Materials" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Applicable Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human
health or the environment and are or become regulated by any Governmental
Authority, (c) the presence of which require investigation or remediation under
any Applicable Law, (d) the discharge or emission or release of which requires a
permit or license under any Applicable Law or other Governmental Approval, (e)
which are deemed to constitute a nuisance, a trespass or pose a health or safety
hazard to Persons or neighboring properties, (f) which consist of underground or
aboveground storage tanks, whether empty, filled or partially filled with any
substance, or (g) which contain, without limitation, asbestos, polychlorinated
biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum
derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic
gas.
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"Hedging Agreement" means any agreement with respect to an interest
rate swap, collar, cap, floor or a forward rate agreement, including without
limitation any swap agreement (as defined in 11 U.S.C. Section 101), or other
agreement regarding the hedging of interest rate risk exposure executed in
connection with hedging the interest rate exposure of the Borrower, and any
confirming letter executed pursuant to such hedging agreement, all as amended,
restated or otherwise modified.
"Interest Coverage Ratio" means, as of any date of determination, with
respect to JLG and its Subsidiaries, the ratio of EBIT, for the most recent
Rolling Period, to Interest Expense, for the most recent Rolling Period, in each
case as defined in accordance with GAAP.
"Interest Expense" means, for any period, total interest expense
(including, without limitation, interest expense attributable to Capital Leases)
determined on a Consolidated basis, without duplication, for JLG and its
Subsidiaries in accordance with GAAP.
"Interest Period" shall have the meaning assigned thereto in Section
4.1(b).
"Issuing Lender" means First Union, in its capacity as issuer of any
Letter of Credit, or any successor thereto.
"L/C Commitment" means the lesser of (a) Twenty-Five Million Dollars
($25,000,000) and (b) the Aggregate Commitment.
"L/C Facility" means the letter of credit facility established pursuant
to Article III hereof.
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders
other than the Issuing Lender.
"Lender" means each Person executing this Agreement as a Lender as set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 13.10.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Loans as set forth
in Schedule 2 or as specified from time to time.
"Letters of Credit" shall have the meaning assigned thereto in Section
3.1.
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"Leverage Ratio" means, as of any date of determination, with respect
to JLG and its Subsidiaries, the ratio of Total Funded Debt to EBITDA for the
most recent Rolling Period.
"LIBOR" means the rate of interest per annum determined on the basis of
the rate for deposits in Dollars in minimum amounts of at least $5,000,000 for a
period equal to the applicable Interest Period which appears on the Telerate
Page 3750 at approximately 11:00 a.m. (London time) two (2) Business Days prior
to the first day of the applicable Interest Period (rounded upward, if
necessary, to the nearest one-hundredth of one percent (1/100%)). If, for any
reason, such rate does not appear on Telerate Page 3750, then LIBOR shall be
determined by the Administrative Agent to be the arithmetic average (rounded
upward, if necessary, to the nearest one-hundredth of one percent (1/100%)) of
the rate per annum at which deposits in Dollars would be offered by first class
banks in the London interbank market to the Administrative Agent at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of the applicable Interest Period for a period equal to such Interest Period
and in an amount substantially equal to the amount of the applicable Loan.
"LIBOR Rate" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Administrative Agent pursuant
to the following formula:
LIBOR Rate = LIBOR
----------------------------------
1.00-Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon
the LIBOR Rate as provided in Section 4.1(a).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capital Lease or other
title retention agreement relating to such asset.
"Loans" means the collective reference to the Revolving Credit Loans
and the Swingline Loans and "Loan" means any of such Loans.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Applications, the Letters of Credit and each other document, instrument,
certificate and agreement (but excluding any Hedging Agreement) executed and
delivered by any Borrower, or any Subsidiary in connection with this Agreement,
all as may be amended, restated or otherwise modified.
"Material Adverse Effect" means, with respect to the Borrowers or any
of their Subsidiaries, a material adverse change since July 31, 1998 on the
properties, business, prospects, operations or condition (financial or
otherwise) of JLG and its Subsidiaries on a Consolidated basis or which
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would be reasonably likely to impair the ability of JLG or any of its
Subsidiaries on a Consolidated basis to perform its obligations under the Loan
Documents in each case to which it is a party.
"Material Contract" means (a) any contract or other agreement, written
or oral, of any Borrower or any Subsidiary involving monetary liability of or to
any such Person in an amount in excess of $10,000,000 per annum; or (b) any
other contract or agreement, written or oral, of any Borrower or any Subsidiary,
the failure to comply with which could reasonably be expected to have a Material
Adverse Effect.
"Material Subsidiary" means any Subsidiary which either: (i) comprised
five percent (5%) or more of the assets of JLG and its Subsidiaries on a
Consolidated basis as of the most recent date for which a balance sheet has been
delivered (or is required to have been delivered) hereunder, or (ii) was
responsible for five percent (5%) or more of EBITDA for the most recent Rolling
Period.
"Merger" means the acquisition of Gradall by JLG resulting from the
merger of JLG Acquisition Corp. into Gradall, as described in the Merger
Agreement.
"Merger Agreement" means the Agreement and Plan of Merger dated as of
May 10, 1999, by and among JLG, JLG Acquisition Corp. and Gradall.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Worth" means, as of any date of determination, the Consolidated
total assets of JLG and its Subsidiaries, less the Consolidated total
liabilities and deferred items of JLG and its Subsidiaries, in each case as
defined in accordance with GAAP.
"Notes" means the collective reference to the Revolving Credit Notes
and Swingline Note and "Note" means any of such Notes.
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 2.3(b).
"Notice of Borrowing" shall have the meaning assigned thereto in
Section 2.3(a).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.4(c).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
the L/C Obligations, (c) all payment and other obligations owing by the
Borrowers to any Lender or the Administrative Agent under any Hedging Agreement
with any
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Lender (which such Hedging Agreement is permitted hereunder), and (d) all other
fees and commissions (including reasonable attorney's fees), charges,
indebtedness, loans, liabilities, financial accommodations, obligations,
covenants and duties owing by the Borrowers to the Lenders or the Administrative
Agent, of every kind, nature and description, direct or indirect, absolute or
contingent, due or to become due, liquidated or unliquidated, and whether or not
evidenced by any note, in each case pursuant to the terms of this Agreement, any
Note, any Letter of Credit or any of the other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 7.2.
"Operating Lease" means individually, and "Operating Leases" means
collectively, a lease that has a fixed term of no less than two years, which
fixed term may not be cancelled or otherwise terminate at the option of the
Borrower or Subsidiary as lessee earlier than the latest possible date of
termination without the imposition of a penalty on such lessee.
"Operating Lease Value" means, as of any date of determination, the
amount of all payments required to be made by the Borrower or Subsidiary as
lessee under the terms of any Operating Lease during the remaining fixed term
thereof, discounted to present value using a discount rate of ten percent (10%).
"Other Taxes" shall have the meaning assigned thereto in Section
4.11(b).
"Overdraft Facility Debt" means the indebtedness of JLG, Fulton
International, Inc., JLG Equipment Services, Inc., and JLG Manufacturing, LLC in
the aggregate maximum principal amount outstanding of Twenty Million Dollars
($20,000,000) in order to provide for banking overdraft protection and other
working capital needs, which agreement evidencing such indebtedness shall
contain covenants and events of default no more restrictive than those contained
herein.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which is maintained or sponsored by, contributed to,
or covering employees of any Borrower, Subsidiary or ERISA Affiliate.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"PIDA" means the Pennsylvania Industrial Development Authority.
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"PIDA Debt" means the secured indebtedness of a Borrower to PIDA, the
Bedford County Pennsylvania Industrial Authority and the Fulton County
Pennsylvania Industrial Authority in the maximum aggregate principal amount of
$3,615,198 as evidenced by the following loan agreements: (i) Loan Agreement
with PIDA dated as of April 18, 1989 in the original principal amount of
$465,198; (ii) Loan Agreement with PIDA dated as of May 28, 1997 in the original
principal amount of $2,000,000; (iii) Loan Agreement with Bedford County
Pennsylvania Industrial Authority dated as of July 10, 1989 in the original
principal amount of $369,000; and (iv) Loan Agreement with Fulton County
Pennsylvania Industrial Authority dated as of April 18, 1989 in the original
principal amount of $781,000.
"Prime Rate" means, at any time, the rate of interest per annum
publicly announced from time to time by First Union as its prime rate. Each
change in the Prime Rate shall be effective as of the opening of business on the
day such change in the Prime Rate occurs. The parties hereto acknowledge that
the rate announced publicly by First Union as its Prime Rate is an index or base
rate and shall not necessarily be its lowest or best rate charged to its
customers or other banks.
"Register" shall have the meaning assigned thereto in Section 13.10(d).
"Reimbursement Obligation" means the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Required Lenders" means, at any date, any combination of holders of at
least fifty-one percent (51%) of the aggregate unpaid principal amount of the
Notes, or if no amounts are outstanding under the Notes, any combination of
Lenders whose Commitment Percentages aggregate to at least fifty-one percent
(51%).
"Responsible Officer" means any of the following: the chief executive
officer, chief financial officer, or general counsel of JLG or any other officer
of JLG designated in writing by any of the foregoing officers and reasonably
acceptable to the Administrative Agent.
"Revolving Credit Facility" means the revolving credit facility
established pursuant to Article II hereof.
"Revolving Credit Loans" means any revolving loan made to the Borrowers
pursuant to Section 2.1, and all such revolving loans collectively as the
context requires.
"Revolving Credit Notes" means the collective reference to the
Revolving Credit Notes made by the Borrowers payable to the order of each
Lender, substantially in the form of Exhibit A-1 hereto, evidencing the
Revolving Credit Facility, and any amendments and modifications thereto, any
substitutes therefor, and any replacements, restatements, renewals or extensions
thereof, in whole or in part; "Revolving Credit Note" means any of such
Revolving Credit Notes.
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"Rolling Period" means, as of any date, the most recent four (4)
consecutive fiscal quarters of JLG and its Subsidiaries completed on or before
such date.
"Share Purchase" means the purchase of an amount of shares of Common
Stock of Gradall which constitutes more than 50% of the voting power of Gradall
by JLG Acquisition Corp. pursuant to the terms of the Tender Offer.
"Subordinated Debt" means the Debt of JLG [or any Subsidiary]
designated as "Subordinated Debt", which shall not, in any event, exceed One
Hundred Fifty Million Dollars ($150,000,000) in principal amount outstanding at
any time and which satisfies the following conditions:
(i) such Debt is unsecured and is not guaranteed by any other
Borrower or Subsidiary;
(ii) no payment of the principal of such Debt is due prior to
the Termination Date;
(iii) the covenants in respect of such Debt will be no more
restrictive than the covenants under this Agreement, and the events of default
in respect of such Debt will be no more extensive than the Events of Default
hereunder; provided, that a payment default in respect of such Debt may be a
default or event of default in respect of such Debt;
(iv) in the event of a bankruptcy, insolvency, liquidation,
reorganization, dissolution or other winding-up or similar event with respect to
any Borrower or any Subsidiary, the Obligations must be paid in full in cash
before any payment is made with respect to the principal of, premium, if any,
interest or other amounts, if any, payable in respect of such Debt; and
(v) no cash payments may be made with respect to such Debt
during the continuance of a payment default with respect to any of the
Obligations and, during the continuance of any other Default or Event of
Default, no payment may be made with respect to such Debt until such Default or
Event of Default is cured (or if not cured, until such Default or Event of
Default has been continuing for more than 179 days after the Administrative
Agent notifies Borrowers that payments on such Debt are to be suspended until
such Default or Event of Default is cured).
"Subsidiary" means as to any Person, any corporation, partnership,
limited liability company or other entity of which more than fifty percent (50%)
of the outstanding capital stock or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other managers of
such corporation, partnership, limited liability company or other entity is at
the time, directly or indirectly, owned by or the management is otherwise
controlled by, such Person (irrespective of whether, at the time, capital stock
or other ownership interests of any other class or classes of such corporation,
partnership, limited liability company or other entity shall have or might have
voting power by reason of the happening of any contingency). Unless otherwise
qualified references to "Subsidiary" or "Subsidiaries" herein shall refer to
those of the Borrowers.
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"Swingline Commitment" means the lesser of (a) Twenty Million Dollars
($20,000,000) and (b) the Aggregate Commitment.
"Swingline Lender" means First Union in its capacity as swingline
lender hereunder.
"Swingline Loan" means any swingline loan made by the Swingline Lender
to the Borrowers pursuant to Section 2.2, and all such swingline loans
collectively as the context requires.
"Swingline Note" means the Swingline Note made by the Borrowers payable
to the order of the Swingline Lender, substantially in the form of Exhibit A-2
hereto, evidencing the Swingline Loans, and any amendments and modifications
thereto, any substitutes therefor, and any replacements, restatements, renewals
or extensions thereof, in whole or in part.
"Swingline Termination Date" means the first to occur of (a) the
resignation of First Union as Administrative Agent in accordance with Section
12.9 and (b) the Termination Date.
"Taxes" shall have the meaning assigned thereto in Section 4.11(a).
"Tender Offer" means the tender offer by JLG to purchase one hundred
percent (100%) of the shares of stock of Gradall made on May 17, 1999 as set
forth in the Schedule 14D-1 of JLG Acquisition Corp. and JLG as filed with the
Securities and Exchange Commission.
"Termination Date" means the earliest of: (i) June 18, 2004; (ii) the
date of termination by the Borrowers pursuant to Section 2.6(a); or (iii) the
date of termination by the Administrative Agent on behalf of the Lenders
pursuant to Section 11.2(a).
"Termination Event" means: (a) a reportable event described in Section
4043 of ERISA for which notice is not waived with respect to the Borrower or any
ERISA Affiliate, or (b) the withdrawal of any Borrower or any ERISA Affiliate
from a Pension Plan during a plan year in which it was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA, or (c) with respect to a Pension Plan
that does not satisfy the requirements for a standard termination under Section
4041(b) of ERISA, the termination of such a Pension Plan, the filing of a notice
of intent to terminate such a Pension Plan or the treatment of such a Pension
Plan amendment as a termination under Section 4041 of ERISA, or (d) the
institution of proceedings to terminate, or the appointment of a trustee with
respect to, any Pension Plan by the PBGC, or (e) any other event or condition
which would constitute grounds under Section 4042(a) of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan,
or (f) the partial or complete withdrawal of the Borrower or any ERISA Affiliate
from a Multiemployer Plan but only if such partial or complete withdrawal
results in the Borrower or ERISA Affiliate incurring a withdrawal liability
under Section 4201 of ERISA, or (g) the imposition of a Lien on the property or
assets of the Borrower or an ERISA Affiliate pursuant to Section 412 of the Code
or Section 302 of ERISA, or (h) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan in which the Borrower
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or any ERISA Affiliate has an obligation to contribute under Sections 4241 or
4245 of ERISA, or (i) any event or condition which results in the termination of
a Multiemployer Plan in which the Borrower or any ERISA Affiliate has an
obligation to contribute under Section 4041A of ERISA or the institution by PBGC
of proceedings to terminate a Multiemployer Plan in which the Borrower or any
ERISA Affiliate has an obligation to contribute under Section 4042 of ERISA.
"Total Funded Debt" means, as of the date of determination, the
aggregate principal amount of all Debt of JLG and its Subsidiaries on a
Consolidated basis, together with all indebtedness for borrowed money having a
maturity of one year or less; provided, however, that the portions of Debt
described in clauses (b), (d), (e), (f) (but not Reimbursement Obligations), (g)
and (h) of the definition of Debt set forth in this Section 1.1 shall be
excluded from Total Funded Debt.
"Uniform Customs" the Uniform Customs and Practice for Documentary
Credits (1994 Revision), International Chamber of Commerce Publication No. 500.
"UCC" means the Uniform Commercial Code as in effect in the
Commonwealth of Pennsylvania, as amended, restated or otherwise modified.
"United States" means the United States of America.
"Wholly-Owned" means, with respect to a Subsidiary, that all of the
shares of capital stock or other ownership interests of such Subsidiary are,
directly or indirectly, owned or controlled by a Borrower and/or one or more of
a Borrower's Wholly-Owned Subsidiaries.
"Year 2000 Compliant" means, as to any computer system or application
or micro-processor dependent good or equipment, that it is designed and intended
to be used prior to, during and after the calendar year 2000 AD and that it will
operate during each such time period without error relating to date data or date
information, specifically including any error relating to, or the product of,
date data or date information that represents or references different centuries
or more than one century.
B. General. Unless otherwise specified, a reference in this Agreement
to a particular section, subsection, Schedule or Exhibit is a reference to that
section, subsection, Schedule or Exhibit of this Agreement. Wherever from the
context it appears appropriate, each term stated in either the singular or
plural shall include the singular and plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine, the feminine
and the neuter. Any reference herein to Philadelphia time shall refer to the
applicable time of day in Philadelphia, Pennsylvania.
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C. Other Definitions and Provisions
a. Use of Capitalized Terms. Unless otherwise defined therein,
all capitalized terms defined in this Agreement shall have the defined meanings
when used in the Notes and the other Loan Documents or any certificate, report
or other document made or delivered pursuant to this Agreement.
b. Accounting Terms. Except as otherwise provided herein,
financial and accounting terms used in the foregoing definitions or elsewhere in
this Agreement shall be defined in accordance with GAAP. In the event that any
future change in GAAP, in and of itself, materially affects the Borrowers'
compliance with any financial covenant contained herein Borrowers and the
Administrative Agent shall use commercially reasonable efforts to modify such
covenant in order to account for such change and to secure for Lenders the
intended benefits of such covenant.
c. Miscellaneous. The words hereof, herein and hereunder and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
II. REVOLVING CREDIT FACILITY
A. Revolving Credit Loans
Subject to the terms and conditions of this Agreement, each
Lender severally agrees to make Revolving Credit Loans to the Borrowers from
time to time from the Closing Date through the Termination Date as requested by
the Borrowers in accordance with the terms of Section 2.3; provided, that (a)
the aggregate principal amount of all outstanding Revolving Credit Loans (after
giving effect to any amount requested) shall not exceed the Aggregate Commitment
less the sum of all outstanding Swingline Loans and L/C Obligations and (b) the
principal amount of outstanding Revolving Credit Loans from any Lender to the
Borrowers shall not at any time exceed such Lender's Commitment less such
Lender's Commitment Percentage of outstanding L/C Obligations and Swingline
Loans (if any). Each Revolving Credit Loan by a Lender shall be in a principal
amount equal to such Lender's Commitment Percentage of the aggregate principal
amount of Revolving Credit Loans requested on such occasion. Subject to the
terms and conditions hereof, the Borrowers may borrow, repay and reborrow
Revolving Credit Loans hereunder until the Termination Date. The obligations of
Borrowers under the Revolving Credit Loans are and shall be joint and several.
B. Swingline Loans
a. Availability. Subject to the terms and conditions of this
Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrowers
from time to time from the Closing Date through, but not including, the
Swingline Termination Date; provided, that the
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aggregate principal amount of all outstanding Swingline Loans (after giving
effect to any amount requested), shall not exceed the lesser of (i) the
Aggregate Commitment less the sum of all outstanding Revolving Credit Loans and
the L/C Obligations and (ii) the Swingline Commitment. The obligations of
Borrowers under the Swingline Loans are and shall be joint and several.
b. Refunding.
(1) Swingline Loans shall be refunded by the Lenders
on demand by the Swingline Lender. Such refundings shall be made by the Lenders
in accordance with their respective Commitment Percentages and shall thereafter
be reflected as Revolving Credit Loans of the Lenders on the books and records
of the Administrative Agent. Each Lender shall fund its respective Commitment
Percentage of Revolving Credit Loans as required to repay Swingline Loans
outstanding to the Swingline Lender upon demand by the Swingline Lender but in
no event later than 2:00 p.m. (Philadelphia time) on the next succeeding
Business Day after such demand is made. No Lender's obligation to fund its
respective Commitment Percentage of a Swingline Loan shall be affected by any
other Lender's failure to fund its Commitment Percentage of a Swingline Loan,
nor shall any Lender's Commitment Percentage be increased as a result of any
such failure of any other Lender to fund its Commitment Percentage.
(2) The Borrowers shall pay to the Swingline Lender
within one (1) Business Day following demand the full amount of such outstanding
Swingline Loans if amounts received from the Lenders other than the Swingline
Lender are not sufficient to repay in full the portion of the outstanding
Swingline Loans in excess of the Commitment Percentage of the Swingline Lender
(the "Excess Swingline Amount") requested or required to be refunded. In
addition, the Borrowers hereby authorize the Administrative Agent to charge any
account maintained with the Swingline Lender (up to the amount available
therein) in order to immediately pay the Swingline Lender the amount of such
Swingline Loans to the extent amounts received from the Lenders are not
sufficient to repay in full the Excess Swingline Amount requested or required to
be refunded. If any portion of any such amount paid to the Swingline Lender
shall be recovered by or on behalf of the Borrowers from the Swingline Lender in
bankruptcy or otherwise, the loss of the amount so recovered shall be ratably
shared among all the Lenders in accordance with their respective Commitment
Percentages (unless the amounts so recovered by or on behalf of the Borrowers
pertain to a Swingline Loan extended after the occurrence and during the
continuance of an Event of Default of which the Administrative Agent has
received actual notice and which such Event of Default has not been waived by
the Required Lenders or the Lenders, as applicable).
(3) Each Lender acknowledges and agrees that its
obligation to refund Swingline Loans in accordance with the terms of this
Section 2.2 is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, non-satisfaction of the
conditions set forth in Article V. Further, each Lender agrees and acknowledges
that if prior to the refunding of any outstanding Swingline Loans pursuant to
this Section 2.2, one of the events described in Section 11.1(j) or (k) shall
have occurred, each Lender
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will, on the date the applicable Revolving Credit Loan would have been made,
purchase an undivided participating interest in the Swingline Loan to be
refunded in an amount equal to its Commitment Percentage of the aggregate amount
of such Swingline Loan. Each Lender will immediately transfer to the Swingline
Lender, in immediately available funds, the amount of its participation and upon
receipt thereof the Swingline Lender will deliver to such Lender a certificate
evidencing such participation dated the date of receipt of such funds and for
such amount. Whenever, at any time after the Swingline Lender has received from
any Lender such Lender's participating interest in a Swingline Loan, the
Swingline Lender receives any payment on account thereof, the Swingline Lender
will distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded).
C. Procedure for Advances of Revolving Credit and Swingline Loans
a. Requests for Borrowing. JLG, on behalf of the Borrowers,
shall give the Administrative Agent irrevocable prior written notice in the form
attached hereto as Exhibit B (a Notice of Borrowing ) not later than 11:00 a.m.
(Philadelphia time) (i) on the same Business Day as each Base Rate Loan and each
Swingline Loan and (ii) on the third (3rd) Business Day before each LIBOR Rate
Loan of its intention to borrow, specifying (A) the date of such borrowing,
which shall be a Business Day, (B) the amount of such borrowing, which shall be
in an amount equal to the amount of the Aggregate Commitment then available to
the Borrowers, or if less, (x) with respect to Base Rate Loans in an aggregate
principal amount of $1,000,000 or a whole multiple of $250,000 in excess
thereof, (y) with respect to LIBOR Rate Loans in an aggregate principal amount
of $3,000,000 or a whole multiple of $1,000,000 in excess thereof and (z) with
respect to Swingline Loans in an aggregate principle amount of $500,000 or a
whole multiple of $100,000 in excess thereof, (C) whether such Loan is to be a
Revolving Credit Loan or Swingline Loan, (D) in the case of a Revolving Credit
Loan whether the Loans are to be LIBOR Rate Loans or Base Rate Loans, and (E) in
the case of a LIBOR Rate Loan, the duration of the Interest Period applicable
thereto. Notices received after 11:00 a.m. (Philadelphia time) shall be deemed
received on the next Business Day. The Administrative Agent shall promptly
notify the Lenders of each Notice of Borrowing.
b. Authority of JLG. Each of the Borrowers hereby irrevocably
authorizes and requests that JLG execute all Notices of Borrowing, make all
elections as to interest rates and take any other actions required of or
permitted by the Borrowers under this Agreement, on its respective behalf, in
each case with the same force and effect as if such Borrower had executed such
Notice of Borrowing, made such election or taken such other action itself. Any
request, application or other communication by JLG may be relied on by the
Administrative Agent and the Lenders, and any communication by the
Administrative Agent and Lenders shall be made to JLG, and shall be binding on
each Borrower, jointly and severally, as fully as if such request, application
or other communication were made directly by or to each such Borrower.
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<PAGE> 19
c. Disbursement of Revolving Credit and Swingline Loans. Not
later than 2:00 p.m. (Philadelphia time) on the proposed borrowing date, (i)
each Lender will make available to the Administrative Agent, for the account of
the Borrowers, at the office of the Administrative Agent in funds immediately
available to the Administrative Agent, such Lender's Commitment Percentage of
the Revolving Credit Loans to be made on such borrowing date and (ii) the
Swingline Lender will make available to the Administrative Agent, for the
account of the Borrowers, at the office of the Administrative Agent in funds
immediately available to the Administrative Agent, the Swingline Loans to be
made on such borrowing date. The Borrowers hereby irrevocably authorize the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.3 in immediately available funds by crediting or
wiring such proceeds to the deposit account of the Borrowers identified in the
most recent notice substantially in the form of Exhibit C hereto (a "Notice of
Account Designation") delivered by the Borrowers to the Administrative Agent or
as may be otherwise agreed upon by the Borrowers and the Administrative Agent
from time to time. Subject to Section 4.7 hereof, the Administrative Agent shall
not be obligated to disburse the portion of the proceeds of any Revolving Credit
Loan requested pursuant to this Section 2.3 to the extent that any Lender has
not made available to the Administrative Agent its Commitment Percentage of such
Loan. Revolving Credit Loans to be made for the purpose of refunding Swingline
Loans shall be made by the Lenders as provided in Section 2.2(b).
D. Repayment of Loans
a. Repayment on Termination Date. The Borrowers shall repay
the outstanding principal amount of (i) all Revolving Credit Loans in full on
the Termination Date, and (ii) all Swingline Loans in accordance with Section
2.2(b), together, in each case, with all accrued but unpaid interest thereon.
b. Mandatory Repayment of Excess Loans. If at any time the
outstanding principal amount of all Loans exceeds the Aggregate Commitment less
the sum of all outstanding L/C Obligations and Swingline Loans, the Borrowers
shall repay immediately upon notice from the Administrative Agent, by payment to
the Administrative Agent for the account of the Lenders, Revolving Credit Loans
and Swingline Loans, and furnish cash collateral reasonably satisfactory to the
Administrative Agent and/or repay the L/C Obligations in an amount equal to such
excess with each such repayment applied first to the principal amount of
outstanding Swingline Loans, second to the principal amount of the L/C
Obligations and third to the principal amount of outstanding Revolving Credit
Loans. Such cash collateral shall be applied in accordance with Section 11.2(b).
Each such repayment shall be accompanied by any amount required to be paid
pursuant to Section 4.9 hereof.
c. Optional Repayments. The Borrowers may at any time and from
time to time repay the Loans, in whole or in part, upon at least three (3)
Business Days irrevocable notice to the Administrative Agent with respect to
LIBOR Rate Loans and same Business Day irrevocable
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<PAGE> 20
notice with respect to Base Rate Loans and Swingline Loans, in the form attached
hereto as Exhibit D (a Notice of Prepayment) specifying the date and amount of
repayment and whether the repayment is of LIBOR Rate Loans, Base Rate Loans,
Swingline Loans or a combination thereof, and, if of a combination thereof, the
amount allocable to each. Upon receipt of such notice, the Administrative Agent
shall promptly notify each Lender. If any such notice is given, the amount
specified in such notice shall be due and payable on the date set forth in such
notice. Partial repayments shall be in a whole multiple of $250,000 with respect
to Base Rate Loans, $3,000,000 or a whole multiple of $1,000,000 in excess
thereof with respect to LIBOR Rate Loans and $500,000 or a whole multiple of
$100,000 in excess thereof with respect to Swingline Loans. Each such repayment
with respect to any LIBOR Rate Loan shall be accompanied by any amount required
to be paid pursuant to Section 4.9 hereof. Any repayment of the Loans will not
affect the Borrowers' obligation to continue making payments as required under
any Hedging Agreement.
d. Limitation on Repayment of LIBOR Rate Loans. The Borrowers
may not repay any LIBOR Rate Loan on any day other than on the last day of the
Interest Period applicable thereto unless such repayment is accompanied by any
amount required to be paid pursuant to Section 4.9 hereof.
E. Notes
a. Revolving Credit Notes. Each Lender's Revolving Credit
Loans and the obligation of the Borrowers to repay such Revolving Credit Loans
shall be evidenced by separate Revolving Credit Note executed by the Borrowers
payable to the order of such Lender, representing the Borrowers' obligation to
pay such Lender's Commitment or, if less, the aggregate unpaid principal amount
of all Revolving Credit Loans made and to be made by such Lender to the
Borrowers hereunder, plus interest and all other fees, charges and other amounts
due thereon in accordance with the terms of this Agreement or any other Loan
Document. Each Revolving Credit Note shall be dated the date hereof and shall
bear interest on the unpaid principal amount thereof at the applicable interest
rate per annum specified in Section 4.1.
b. Swingline Notes. The Swingline Loans and the obligations of
the Borrowers to repay such Swingline Loans shall be evidenced by a Swingline
Note executed by the Borrowers payable to the order of the Swingline Lender,
representing the Borrowers' obligation to pay the Swingline Lender's Swingline
Commitment or, if less, the aggregate unpaid principal amount of all Swingline
Loans made by the Swingline Lender to the Borrowers hereunder, plus interest on
such principal amounts and all other fees, charges and other amounts due thereon
in accordance with the terms of this Agreement or any other Loan Document. The
Swingline Note shall be dated the date hereof and shall bear interest on the
unpaid principal amount thereof at the applicable interest rate per annum
specified in Section 4.1.
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<PAGE> 21
F. Permanent Reduction of the Aggregate Commitment
a. Voluntary Reduction. The Borrowers shall have the right at
any time and from time to time, upon at least five (5) Business Days prior
written notice to the Administrative Agent, to permanently reduce, without
premium or penalty, (i) the entire Aggregate Commitment at any time or (ii)
portions of the Aggregate Commitment, from time to time, in an aggregate
principal amount not less than $5,000,000 or any whole multiple of $1,000,000 in
excess thereof.
b. Each permanent reduction permitted pursuant to this Section
2.6 shall be accompanied by a payment of principal sufficient to reduce the
aggregate outstanding Extensions of Credit of the Lenders after such reduction
to the Aggregate Commitment as so reduced and if the Aggregate Commitment as so
reduced is less than the aggregate amount of all outstanding Letters of Credit,
the Borrowers shall be required to deposit in a cash collateral account opened
by the Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Any reduction of the Aggregate
Commitment to zero shall be accompanied by payment of all outstanding
Obligations (and furnishing of cash collateral satisfactory to the
Administrative Agent for all L/C Obligations) and shall result in the
termination of the Commitments and Credit Facility. Such cash collateral shall
be applied in accordance with Section 11.2(b). If the reduction of the Aggregate
Commitment requires the repayment of any LIBOR Rate Loan, such repayment shall
be accompanied by any amount required to be paid pursuant to Section 4.9 hereof.
G. Termination of Credit Facility The Credit Facility shall terminate
on the Termination Date.
H. Use of Proceeds The Borrowers shall use the proceeds of the
Extensions of Credit (a) to fund the purchase of an amount of shares of common
stock of Gradall which constitutes more than 50% of the voting power of Gradall,
(b) to refinance certain existing indebtedness, and (c) for working capital and
general corporate requirements of the Borrowers and their Subsidiaries,
including without limitation the payment of certain fees and expenses incurred
in connection with the transactions contemplated hereby.
III. LETTER OF CREDIT FACILITY
A. L/C Commitment. Subject to the terms and conditions hereof, the
Issuing Lender, in reliance on the agreements of the other Lenders set forth in
Section 3.4(a), agrees to issue standby letters of credit ("Letters of Credit")
for the account of the Borrowers on any Business Day from the Closing Date
through but not including the Termination Date in such form as may be approved
from time to time by the Issuing Lender; provided, that the Issuing Lender shall
have no obligation to issue any Letter of Credit if, after giving effect to such
issuance, (a) the L/C Obligations would exceed the L/C Commitment or (b) the
Available Commitment of any Lender would be less than zero. Each Letter of
Credit shall (i) be denominated in Dollars in a minimum amount of $100,000,
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<PAGE> 22
(ii) be a standby letter of credit issued to support obligations of any Borrower
or any Subsidiary, contingent or otherwise, incurred in the ordinary course of
business, (iii) expire on a date no later than the first anniversary of the
issuance of such Letter of Credit, which date shall in no event be later than
the Termination Date, and (iv) be subject to the Uniform Customs and, to the
extent not inconsistent therewith, the laws of the Commonwealth of Pennsylvania.
The Issuing Lender shall not at any time be obligated to issue any Letter of
Credit hereunder if such issuance would conflict with, or cause the Issuing
Lender or any L/C Participant to exceed any limits imposed by, any Applicable
Law. References herein to "issue" and derivations thereof with respect to
Letters of Credit shall also include extensions or modifications of any existing
Letters of Credit, unless the context otherwise requires.
B. Procedure for Issuance of Letters of Credit. JLG, on behalf of the
Borrowers, may from time to time request that the Issuing Lender issue a Letter
of Credit by delivering to the Issuing Lender at the Administrative Agent's
Office an Application therefor, completed to the reasonable satisfaction of the
Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may reasonably request. Upon receipt of any
Application, the Issuing Lender shall process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall,
subject to Section 3.1 and Article V hereof, promptly issue the Letter of Credit
requested thereby (but in no event shall the Issuing Lender be required to issue
any Letter of Credit earlier than three (3) Business Days after its receipt of
the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Lender and the Borrowers. The Issuing Lender shall promptly furnish to
the Borrowers a copy of such Letter of Credit and promptly notify each Lender of
the issuance and, upon request by any Lender, furnish to such Lender a copy of
such Letter of Credit, and the amount of such Lender's participation therein.
C. Commissions and Other Charges
a. The Borrowers shall pay to the Administrative Agent, for
the account of the Issuing Lender and the L/C Participants, a letter of credit
commission with respect to each outstanding Letter of Credit in an amount equal
to the Applicable Margin at the time of issuance of such Letter of Credit on a
per annum basis on the face amount of such Letter of Credit. Such commission
shall be payable quarterly in arrears on the last Business Day of each calendar
quarter and on the Termination Date.
b. In addition to the foregoing commission, the Borrowers
shall pay the Issuing Lender an issuance fee of one-eighth of one percent (1/8%)
per annum on the face amount of each Letter of Credit, payable quarterly in
arrears on the last Business Day of each calendar quarter and on the Termination
Date.
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<PAGE> 23
c. The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the L/C Participants all
commissions received by the Administrative Agent in accordance with their
respective Commitment Percentages.
D. L/C Participations
a. The Issuing Lender irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce the Issuing Lender to issue
Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from the Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C Participant's own account
and risk an undivided interest equal to such L/C Participant's Commitment
Percentage in the Issuing Lender's obligations and rights under each Letter of
Credit issued hereunder and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with the
Issuing Lender that, if a draft is paid under any Letter of Credit for which the
Issuing Lender is not reimbursed in full by the Borrowers in accordance with the
terms of this Agreement, such L/C Participant shall pay to the Issuing Lender
upon demand at the Issuing Lender's address for notices specified herein an
amount equal to such L/C Participant's Commitment Percentage of the amount of
such draft, or any part thereof, which is not so reimbursed.
b. Upon becoming aware of any amount required to be paid by
any L/C Participant to the Issuing Lender pursuant to Section 3.4(a) in respect
of any unreimbursed portion of any payment made by the Issuing Lender under any
Letter of Credit, the Issuing Lender shall notify each L/C Participant of the
amount and due date of such required payment and such L/C Participant shall pay
to the Issuing Lender the amount specified on the applicable due date. If any
such amount is paid to the Issuing Lender after the date such payment is due,
such L/C Participant shall pay to the Issuing Lender on demand, in addition to
such amount, the product of (i) such amount, times (ii) the daily average
Federal Funds Rate as determined by the Administrative Agent during the period
from and including the date such payment is due to the date on which such
payment is immediately available to the Issuing Lender, times (iii) a fraction
the numerator of which is the number of days that elapse during such period and
the denominator of which is 360. A certificate of the Issuing Lender with
respect to any amounts owing under this Section 3.4(b) shall be conclusive in
the absence of manifest error. With respect to payment to the Issuing Lender of
the unreimbursed amounts described in this Section 3.4(b), if the L/C
Participants receive notice that any such payment is due (A) prior to 1:00 p.m.
(Philadelphia time) on any Business Day, such payment shall be due that Business
Day, and (B) after 1:00 p.m. (Philadelphia time) on any Business Day, such
payment shall be due on the following Business Day.
c. Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
Commitment Percentage of such payment in accordance with this Section 3.4, the
Issuing Lender receives any payment related to such Letter of Credit, whether
directly from the Borrower or otherwise, or any payment of interest on account
thereof, the Issuing Lender will distribute to such L/C Participant its pro rata
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<PAGE> 24
share thereof; provided, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
E. Reimbursement Obligation of the Borrowers. The Borrowers agree to
reimburse the Issuing Lender on each date on which the Issuing Lender notifies
the Borrowers of the date and amount of a draft paid under any Letter of Credit
for the amount of (a) such draft so paid and (b) any taxes, fees, charges or
other costs or expenses incurred by the Issuing Lender in connection with such
payment. Each such payment shall be made to the Issuing Lender at its address
for notices specified herein in lawful money of the United States and in
immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by the Borrowers under this Article III from the date such
amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate which would be payable on any
outstanding Base Rate Loans; provided, however, that if the Borrowers fail to
reimburse the Issuing Lender by the third Business Day following the notice
referred to in this Section 3.5, the Base Rate Loan referred to above shall,
from the initial date due until paid, bear interest at the default rate set
forth in Section 4.1(d) hereof. If the Borrowers fail to timely reimburse the
Issuing Lender on the date the Borrowers receive the notice referred to in this
Section 3.5, the Borrowers shall be deemed to have timely given a Notice of
Borrowing hereunder to the Administrative Agent requesting the Lenders to make a
Base Rate Loan on such date in an amount equal to the amount of such drawing
and, regardless of whether or not the conditions precedent specified in Article
V have been satisfied, the Lenders shall make Base Rate Loans in such amount,
the proceeds of which shall be applied to reimburse the Issuing Lender for the
amount of the related drawing and costs and expenses.
F. Obligations Absolute. The Borrowers' obligations under this Article
III (including without limitation the Reimbursement Obligation) shall be
absolute and unconditional under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which the Borrowers may have or
have had against the Issuing Lender or any beneficiary of a Letter of Credit.
The Borrowers also agree with the Issuing Lender that the Issuing Lender shall
not be responsible for, and the Borrowers' Reimbursement Obligation under
Section 3.5 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrowers and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the Borrowers against any beneficiary of such Letter of
Credit or any such transferee. The Issuing Lender shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions caused by the Issuing Lender's gross
negligence or willful misconduct. The Borrowers agree that any action taken or
omitted by the Issuing Lender under or in connection with any Letter of Credit
or the related drafts or documents, if done in the absence of gross negligence
or willful misconduct and in accordance with the standards of care specified in
the Uniform Customs and, to the extent not inconsistent therewith, the UCC,
shall be binding on the Borrowers and shall not result
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<PAGE> 25
in any liability of the Issuing Lender to the Borrowers. The responsibility of
the Issuing Lender to the Borrowers in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
G. Effect of Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Article III, the provisions of this Article III shall apply.
IV. GENERAL LOAN PROVISIONS
A. Interest
a. Interest Rate Options. Subject to the provisions of this
Section 4.1, at the election of the Borrowers, the aggregate principal balance
of (i) the Revolving Credit Notes or any portion thereof shall bear interest at
(A) the Base Rate or (B) the LIBOR Rate plus the Applicable Margin as set forth
in Section 4.1(c); provided that the LIBOR Rate shall not be available until
three (3) Business Days after the Closing Date and (ii) any Swingline Loan shall
bear interest at the Base Rate. JLG shall select the rate of interest and
Interest Period, if any, applicable to any Loan at the time a Notice of
Borrowing is given pursuant to Section 2.3 or at the time a Notice of
Conversion/Continuation is given pursuant to Section 4.2. Each Loan or portion
thereof bearing interest based on the Base Rate shall be a Base Rate Loan, and
each Loan or portion thereof bearing interest based on the LIBOR Rate shall be a
LIBOR Rate Loan. Any Loan or any portion thereof as to which JLG has not duly
specified an interest rate as provided herein shall be deemed a Base Rate Loan.
b. Interest Periods. In connection with each LIBOR Rate Loan,
JLG, by giving notice as described in Section 4.1(a), shall elect an interest
period (each, an "Interest Period") to be applicable to such Loan, which
Interest Period shall be a period of one (1), two (2), three (3), or six (6)
months with respect to each LIBOR Rate Loan; provided that:
(1) the Interest Period shall commence on the date of
advance of or conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall commence on
the date on which the next preceding Interest Period expires;
(2) if any Interest Period would otherwise expire on
a day that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, that if any Interest Period with respect to a
LIBOR Rate Loan would otherwise expire on a day that is not a Business Day but
is a day of the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
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<PAGE> 26
(3) any Interest Period with respect to a LIBOR Rate
Loan that begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the relevant
calendar month at the end of such Interest Period;
(4) no Interest Period shall extend beyond the
Termination Date; and
(5) there shall be no more than six (6) LIBOR Rate
Loans outstanding at any time.
c. Applicable Margin. The Applicable Margin provided for in
Section 4.1(a) with respect to the Loans (the "Applicable Margin") shall (i) on
the Closing Date through the last day of the second full fiscal quarter after
the Closing Date be equal to the Applicable Margin set forth in Level III below,
and (ii) for each fiscal quarter thereafter, 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:
<TABLE>
<CAPTION>
Level Leverage Ratio Applicable Margin
----- -------------- -----------------
<S> <C> <C>
I > = 2.5 112.5 bps
II > = 2.0 and < 2.5 100.0 bps
III > = 1.5 and < 2.0 87.5 bps
IV > = 1.0 and < 1.5 70.0 bps
V < 1.0 55.0 bps
</TABLE>
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent on the third (3rd) Business Day after receipt by the
Administrative Agent of quarterly financial statements for JLG and its
Subsidiaries and the accompanying Officer's Compliance Certificate setting forth
the Leverage Ratio of the Borrowers and their Subsidiaries as of the most recent
fiscal quarter end. Subject to Section 4.1(d), in the event the Borrowers fail
to deliver such financial statements and certificate within the time required by
Section 7.2(c) hereof, the Applicable 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.
d. Default Rate. Subject to Section 11.3, at the discretion of
the Administrative Agent and Required Lenders, upon the occurrence and during
the continuance of an Event of Default, (i) the Borrowers shall no longer have
the option to request LIBOR Rate Loans,
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<PAGE> 27
(ii) all outstanding LIBOR Rate Loans shall bear interest at a rate per annum
two percent (2%) in excess of the rate then applicable to LIBOR Rate Loans, as
applicable, until the end of the applicable Interest Period, and thereafter at a
rate equal to two percent (2%) in excess of the rate then applicable to Base
Rate Loans, and (iii) all outstanding Base Rate Loans shall bear interest at a
rate per annum equal to two percent (2%) in excess of the rate then applicable
to Base Rate Loans. Interest shall continue to accrue on the Notes after the
filing by or against the Borrowers of any petition seeking any relief in
bankruptcy or under any act or law pertaining to insolvency or debtor relief,
whether state, federal or foreign.
e. Interest Payment and Computation. Interest on each Base
Rate Loan shall be payable in arrears on the last Business Day of each calendar
quarter commencing June 30, 1999; and interest on each LIBOR Rate Loan shall be
payable on the last day of each Interest Period applicable thereto, and if such
Interest Period extends over three (3) months, at the end of each three (3)
month interval during such Interest Period. Interest on LIBOR Rate Loans and all
fees payable hereunder shall be computed on the basis of a 360-day year and
assessed for the actual number of days elapsed and interest on Base Rate Loans
shall be computed on the basis of a 365/66-day year and assessed for the actual
number of days elapsed.
B. Notice and Manner of Conversion or Continuation of Loans. Provided
that no Event of Default has occurred and is then continuing, the Borrowers
shall have the option to (a) convert at any time following the third Business
Day after the Closing Date all or any portion of its outstanding Base Rate Loans
(other than Swingline Loans) in a principal amount equal to $1,000,000 or any
whole multiple of $1,000,000 in excess thereof into one or more LIBOR Rate Loans
and (b) upon the expiration of any Interest Period, (i) convert all or any part
of its outstanding LIBOR Rate Loans in a principal amount equal to $3,000,000 or
a whole multiple of $1,000,000 in excess thereof into Base Rate Loans or (ii)
continue such LIBOR Rate Loans as LIBOR Rate Loans. Whenever the Borrower
desires to convert or continue Loans as provided above, the Borrower shall give
the Administrative Agent irrevocable prior written notice in the form attached
as Exhibit E (a Notice of Conversion/Continuation ) not later than 11:00 a.m.
(Philadelphia time) three (3) Business Days before the day on which a proposed
conversion or continuation of such Loan is to be effective specifying (A) the
Loans to be converted or continued, and, in the case of any LIBOR Rate Loan to
be converted or continued, the last day of the Interest Period therefor, (B) the
effective date of such conversion or continuation (which shall be a Business
Day), (C) the principal amount of such Loans to be converted or continued, and
(D) the Interest Period to be applicable to such converted or continued LIBOR
Rate Loan. The Administrative Agent shall promptly notify the Lenders of such
Notice of Conversion/Continuation.
C. Fees.
a. Facility Fees. The Borrowers shall pay to the
Administrative Agent, for the account of the Lenders, quarterly in arrears,
regardless of usage, a non-refundable facility fee
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<PAGE> 28
at a rate per annum to be determined by reference to the Leverage Ratio as
follows times the then current Aggregate Commitment:
<TABLE>
<CAPTION>
Annual
Level Leverage Ratio Facility Fee
----- -------------- ------------
<S> <C> <C>
I > = 2.5 27.5 bps
II > = 2.0 and < 2.5 25.0 bps
III > = 1.5 and < 2.0 25.0 bps
IV > = 1.0 and < 1.5 22.5 bps
V < 1.0 20.0 bps
</TABLE>
; provided, however, that the applicable annual facility fee from the Closing
Date through the last day of the second full fiscal quarter of JLG after the
Closing Date shall be equal to the annual facility fee set forth in Level III
above. Adjustments, if any, in the applicable facility fee shall be made by the
Administrative Agent on the third (3rd) Business Day after receipt by the
Administrative Agent of quarterly financial statements for JLG and its
Subsidiaries and the accompanying Officer's Compliance Certificate setting forth
the Leverage Ratio of the Borrowers and their Subsidiaries as of the most recent
fiscal quarter end. In the event the Borrowers fail to deliver such financial
statements and certificate within the time required by Section 7.2(c) hereof,
the applicable facility fee may, at the discretion of the Administrative Agent,
the highest facility fee set forth above until the delivery of such financial
statements and certificates.
b. Administrative Agent's and Other Fees. In order to
compensate the Administrative Agent for structuring and syndicating the Loans
and for its obligations hereunder, the Borrowers agree to pay to the
Administrative Agent, for its account, the fees set forth in the separate fee
letter agreement executed by JLG and the Administrative Agent dated May 5, 1999.
D. Manner of Payment. Each payment by the Borrowers on account of the
principal of or interest on the Loans or of any fee, commission or other amounts
(including the Reimbursement Obligation) payable to the Lenders under this
Agreement or any Note shall be made not later than 1:00 p.m. (Philadelphia time)
on the date specified for payment under this Agreement to the Administrative
Agent at the Administrative Agent's Office for the account of the Lenders (other
than as set forth below) pro rata in accordance with their respective Commitment
Percentages (except as specified below), in Dollars, in immediately available
funds and shall be made without any set-off, counterclaim or deduction
whatsoever. Any payment received after such time but before 2:00 p.m.
(Philadelphia time) on such day shall be deemed a payment on such date for the
purposes of Section 11.1, but for all other purposes shall be deemed to have
been made on the next succeeding Business Day. Any payment received after 2:00
p.m. (Philadelphia time) shall be deemed to have been made
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on the next succeeding Business Day for all purposes. Upon receipt by the
Administrative Agent of each such payment, the Administrative Agent shall
distribute to each Lender at its address for notices set forth herein its pro
rata share of such payment in accordance with such Lender's Commitment
Percentage (except as specified below) and shall wire advice of the amount of
such credit to each Lender. Each payment to the Administrative Agent of the
Issuing Lender's fees, Lenders' facility fee or L/C Participants' commissions
shall be made in like manner, but for the account of the Issuing Lender or the
L/C Participants, as the case may be. Each payment to the Administrative Agent
of Administrative Agent's fees or expenses shall be made for the account of the
Administrative Agent and any amount payable to any Lender under Sections 4.8,
4.9, 4.10, 4.11 or 13.2 shall be paid to the Administrative Agent for the
account of the applicable Lender. Subject to Section 4.1(b)(ii) if any payment
under this Agreement or any Note shall be specified to be made upon a day which
is not a Business Day, it shall be made on the next succeeding day which is a
Business Day and such extension of time shall in such case be included in
computing any interest if payable along with such payment.
E. Credit of Payments and Proceeds. In the event that the Borrowers
shall fail to pay any of the Obligations when due and the Obligations have been
accelerated pursuant to Section 11.2, all payments received by the Lenders upon
the Notes and the other Obligations and all net proceeds from the enforcement of
the Obligations shall be applied first to all expenses then due and payable by
the Borrowers hereunder, then to all indemnity obligations then due and payable
by the Borrowers hereunder, then to all Administrative Agent's and Issuing
Lender's fees then due and payable, then to all commitment and other fees and
commissions then due and payable, then to accrued and unpaid interest on the
Swingline Note to the Swingline Lender, then to the principal amount outstanding
under the Swingline Note to the Swingline Lender, then to accrued and unpaid
interest on the Revolving Credit Notes, the Reimbursement Obligation and, if
applicable, any termination payments or other amounts due in respect of a
Hedging Agreement with any Lender (which such Hedging Agreement is permitted
hereunder) (pro rata in accordance with all such amounts due), then to the
principal amount of the Revolving Credit Notes and Reimbursement Obligation (pro
rata in accordance with all such amounts due) and then to the cash collateral
account described in Section 11.2(b) hereof to the extent of any L/C Obligations
then outstanding, in that order.
F. Adjustments. If any Lender (a "Benefitted Lender") shall at any time
receive any payment of all or part of the Obligations owing to it, or interest
thereon, or if any Lender shall at any time receive any collateral in respect to
the Obligations owing to it (whether voluntarily or involuntarily, by set-off or
otherwise) in a greater proportion than any such payment to and collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, or interest thereon, such Benefitted Lender shall purchase
for cash from the other Lenders such portion of each such other Lender's
Extensions of Credit, or shall provide such other Lenders with the benefits of
any such collateral, or the proceeds thereof, as shall be necessary to cause
such Benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, that if all
or any portion of such excess payment or benefits is thereafter
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recovered from such Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned to the extent of such recovery, but without
interest. The Borrowers agree that each Lender so purchasing a portion of
another Lender's Extensions of Credit may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such portion
as fully as if such Lender were the direct holder of such portion.
G. Nature of Obligations of Lenders Regarding Extensions of Credit;
Assumption by the Administrative Agent. The obligations of the Lenders under
this Agreement to make the Loans and issue or participate in Letters of Credit
are several and are not joint or joint and several. Unless the Administrative
Agent shall have received notice from a Lender prior to a proposed borrowing
date that such Lender will not make available to the Administrative Agent such
Lender's ratable portion of the amount to be borrowed on such date (which notice
shall not release such Lender of its obligations hereunder), the Administrative
Agent may assume that such Lender has made such portion available to the
Administrative Agent on the proposed borrowing date in accordance with Section
2.3(b), and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrowers on such date a corresponding amount. If such amount
is made available to the Administrative Agent on a date after such borrowing
date, such Lender shall pay to the Administrative Agent on demand an amount,
until paid, equal to the product of (a) the amount not made available by such
Lender in accordance with the terms hereof, times (b) the daily average Federal
Funds Rate during such period as determined by the Administrative Agent, times
(c) a fraction, the numerator of which is the number of days that elapse from
and including such borrowing date to the date on which such amount not made
available by such Lender in accordance with the terms hereof shall have become
immediately available to the Administrative Agent and the denominator of which
is 360. A certificate of the Administrative Agent with respect to any amounts
owing under this Section shall be conclusive, absent manifest error. If such
Lender's Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Lender within three (3) Business Days of such
borrowing date, the Administrative Agent shall be entitled to recover such
amount made available by the Administrative Agent with interest thereon at the
rate per annum applicable to Base Rate Loans hereunder, on demand, from the
Borrowers. The failure of any Lender to make available its Commitment Percentage
of any Loan requested by the Borrowers shall not relieve it or any other Lender
of its obligation, if any, hereunder to make its Commitment Percentage of such
Loan available on the borrowing date, but no Lender shall be responsible for the
failure of any other Lender to make its Commitment Percentage of such Loan
available on the borrowing date.
H. Changed Circumstances.
a. Circumstances Affecting LIBOR Rate Availability. If with
respect to any Interest Period the Administrative Agent or any Lender (after
consultation with Administrative Agent) shall determine that, by reason of
circumstances affecting the foreign exchange and interbank markets generally,
deposits in eurodollars, in the applicable amounts are not being quoted via
Telerate Page 3750 or offered to the Administrative Agent or such Lender for
such
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Interest Period, then the Administrative Agent shall forthwith give notice
thereof to the Borrowers. Thereafter, until the Administrative Agent notifies
the Borrowers that such circumstances no longer exist, the obligation of the
Lenders to make LIBOR Rate Loans and the right of the Borrowers to convert any
Loan to or continue any Loan as a LIBOR Rate Loan shall be suspended, and the
Borrowers shall repay in full (or cause to be repaid in full) the then
outstanding principal amount of each such LIBOR Rate Loans together with accrued
interest thereon, on the last day of the then current Interest Period applicable
to such LIBOR Rate Loan or convert the then outstanding principal amount of each
such LIBOR Rate Loan to a Base Rate Loan as of the last day of such Interest
Period.
b. Laws Affecting LIBOR Rate Availability. If, after the date
hereof, the introduction of, or any change in, any Applicable Law or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any of their respective
Lending Offices) with any request or directive (whether or not having the force
of law) of any such Authority, central bank or comparable agency, shall make it
unlawful or impossible for any of the Lenders (or any of their respective
Lending Offices) to honor its obligations hereunder to make or maintain any
LIBOR Rate Loan, such Lender shall promptly give notice thereof to the
Administrative Agent and the Administrative Agent shall promptly give notice to
the Borrowers and the other Lenders. Thereafter, until the Administrative Agent
notifies the Borrowers that such circumstances no longer exist, (i) the
obligations of the Lenders to make LIBOR Rate Loans and the right of the
Borrowers to convert any Loan or continue any Loan as a LIBOR Rate Loan shall be
suspended and thereafter the Borrowers may select only Base Rate Loans
hereunder, and (ii) if any of the Lenders may not lawfully continue to maintain
a LIBOR Rate Loan to the end of the then current Interest Period applicable
thereto as a LIBOR Rate Loan, the applicable LIBOR Rate Loan shall immediately
be converted to a Base Rate Loan for the remainder of such Interest Period.
c. Increased Costs. If, after the date hereof, the
introduction of, or any change in, any Applicable Law, or in the interpretation
or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any of the Lenders (or any of their respective Lending Offices)
with any request or directive (whether or not having the force of law) of such
Authority, central bank or comparable agency:
(1) shall subject any of the Lenders (or any of their
respective Lending Offices) to any tax, duty or other charge with respect to any
Note, Letter of Credit or Application or shall change the basis of taxation of
payments by Borrowers to any of the Lenders (or any of their respective Lending
Offices) of the principal of or interest on any Note, Letter of Credit or
Application or any other amounts due under this Agreement in respect thereof
(except for changes in the rate of tax on the overall net income of any of the
Lenders or any of their respective Lending Offices imposed by the jurisdiction
in which such Lender is organized or is or should be qualified to do business or
such Lending Office is located); or
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(2) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System), special deposit, insurance or capital or similar
requirement against assets of, deposits with or for the account of, or credit
extended by any of the Lenders (or any of their respective Lending Offices) or
shall impose on any of the Lenders (or any of their respective Lending Offices)
or the foreign exchange and interbank markets any other condition affecting any
Note;
and the result of any of the foregoing is to increase the costs to any of the
Lenders of maintaining any LIBOR Rate Loan or issuing or participating in
Letters of Credit or to reduce the yield or amount of any sum received or
receivable by any of the Lenders under this Agreement or under the Notes in
respect of a LIBOR Rate Loan or Letter of Credit or Application, then such
Lender shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify the Borrowers of such fact and demand compensation
therefor and, within fifteen (15) days after such notice by the Administrative
Agent, the Borrowers shall pay to such Lender such additional amount or amounts
as will compensate such Lender or Lenders for such increased cost or reduction.
The Administrative Agent will promptly notify the Borrowers of any event of
which it has knowledge which will entitle such Lender to compensation pursuant
to this Section 4.8(c); provided, that the Administrative Agent shall incur no
liability whatsoever to the Lenders or the Borrowers in the event it fails to do
so. The amount of such compensation shall be determined, in the applicable
Lender's sole reasonable discretion, based upon the assumption that such Lender
funded its Commitment Percentage of the LIBOR Rate Loans in the London interbank
market and using any reasonable attribution or averaging methods which such
Lender deems appropriate and practical. A certificate of such Lender setting
forth the basis for determining such amount or amounts necessary to compensate
such Lender shall be forwarded to the Borrowers through the Administrative Agent
and shall be conclusively presumed to be correct save for manifest error.
I. Indemnity. The Borrowers hereby indemnify each of the Lenders
against any loss or expense which may arise or be attributable to such Lender's
obtaining, liquidating or employing deposits or other funds acquired to effect,
fund or maintain any LIBOR Rate Loan (a) as a consequence of any failure by the
Borrowers to make any payment when due of any amount due hereunder in connection
with a LIBOR Rate Loan, (b) due to any failure of the Borrowers to borrow on a
date specified therefor in a Notice of Borrowing or Notice of
Continuation/Conversion or (c) due to any payment, prepayment or conversion of
any LIBOR Rate Loan on a date other than the last day of the Interest Period
therefor. The amount of such loss or expense shall be determined, in the
applicable Lender's sole reasonable discretion, based upon the assumption that
such Lender funded its Commitment Percentage of the LIBOR Rate Loans in the
London interbank market and using any reasonable attribution or averaging
methods which such Lender deems appropriate and practical. A certificate of such
Lender setting forth the basis for determining such amount or amounts necessary
to compensate such Lender shall be forwarded to the Borrowers through the
Administrative Agent and shall be conclusively presumed to be correct save for
manifest error.
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J. Capital Requirements. If either (a) the introduction of, or any
change in, or in the interpretation of, any Applicable Law or (b) compliance
with any guideline or request from any central bank or comparable agency or
other Governmental Authority (whether or not having the force of law), has or
would have the effect of reducing the rate of return on the capital of, or has
affected or would affect the amount of capital required to be maintained by, any
Lender or any corporation controlling such Lender as a consequence of, or with
reference to the Commitments and other commitments of this type, below the rate
which the Lender or such other corporation could have achieved but for such
introduction, change or compliance, and the costs of such change in capital
requirements are not reflected in the LIBOR Rate (other than the Eurodollar
Reserve Percentage to the extent reflected in the LIBOR Rate) then within five
(5) Business Days after written demand by any such Lender, the Borrowers shall
pay to such Lender from time to time as specified by such Lender additional
amounts sufficient to compensate such Lender or other corporation for such
reduction. A certificate as to such amounts submitted to the Borrowers and the
Administrative Agent by such Lender, shall, in the absence of manifest error, be
presumed to be correct and binding for all purposes. Each Lender and the
Administrative Agent shall allocate such cost increases among its customers in
good faith and on an equitable basis.
K. Taxes.
a. Payments Free and Clear. Subject to compliance by Lenders
with Section 4.11(e), any and all payments by the Borrowers hereunder or under
the Notes or the Letters of Credit shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholding, and all liabilities with respect thereto excluding, (i)
in the case of each Lender and the Administrative Agent, income and franchise
taxes imposed by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or is or should be
qualified to do business or any political subdivision thereof and (ii) in the
case of each Lender, income and franchise taxes imposed by the jurisdiction of
such Lender's Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrowers shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note or Letter of Credit to any Lender or the
Administrative Agent, (A) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 4.11) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the amount
such party would have received had no such deductions been made, (B) the
Borrowers shall make such deductions, (C) the Borrowers shall pay the full
amount deducted to the relevant taxing authority or other authority in
accordance with applicable law, and (D) the Borrowers shall deliver to the
Administrative Agent evidence of such payment to the relevant taxing authority
or other authority in the manner provided in Section 4.11(d).
b. Stamp and Other Taxes. In addition, the Borrowers shall pay
any present or future stamp, registration, recordation or documentary taxes or
any other similar fees or
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charges or excise or property taxes, levies of the United States or any state or
political subdivision thereof or any applicable foreign jurisdiction which arise
from any payment made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement, the Loans, the Letters of
Credit, the other Loan Documents, or the perfection of any rights or security
interest in respect thereto (hereinafter referred to as "Other Taxes").
c. Indemnity. The Borrowers shall indemnify each Lender and
the Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes and Other Taxes imposed by any
jurisdiction on amounts payable under this Section 4.11) paid by such Lender or
the Administrative Agent (as the case may be) and any additional liability or
obligation (including penalties, interest and expenses) arising therefrom or
with respect thereto paid by such Lender or the Administrative Agent. Such
indemnification shall be made within thirty (30) days from the date such Lender
or the Administrative Agent (as the case may be) makes written demand therefor.
d. Evidence of Payment. Within thirty (30) days after the date
of any payment of Taxes or Other Taxes, the Borrowers shall furnish to the
Administrative Agent, at its address referred to in Section 13.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
e. Delivery of Tax Forms. Each Lender organized under the laws
of a jurisdiction other than the United States or any state thereof shall
deliver to the Borrowers, with a copy to the Administrative Agent, on the
Closing Date or concurrently with the delivery of the relevant Assignment and
Acceptance, as applicable, (i) two United States Internal Revenue Service Forms
4224 or Forms 1001, as applicable (or successor forms) properly completed and
certifying in each case that such Lender is entitled to a complete exemption
from withholding or deduction for or on account of any United States federal
income taxes, and (ii) an Internal Revenue Service Form W-8 or W-9 or successor
applicable form, as the case may be, to establish an exemption from United
States backup withholding taxes. Each such Lender further agrees to deliver to
the Borrowers, with a copy to the Administrative Agent, a Form 1001 or 4224 and
Form W-8 or W-9, or successor applicable forms or manner of certification, as
the case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrowers, certifying in the case
of a Form 1001 or 4224 that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes (unless in any such case an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders such forms inapplicable
or the exemption to which such forms relate unavailable and such Lender notifies
the Borrowers and the Administrative Agent that it is not entitled to receive
payments without deduction or withholding of United States federal income taxes)
and, in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax.
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f. Survival. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrowers contained in this Section 4.11 shall survive the payment in full of
the Obligations and the termination of the Commitments.
V. CLOSING; CONDITIONS OF CLOSING AND BORROWING
A. Closing. The closing shall take place at the offices of Pepper
Hamilton LLP at 10:00 a.m. on June 18, 1999, or on such other date as the
parties hereto shall mutually agree.
B. Conditions to Closing and Initial Extensions of Credit. The
obligation of the Lenders to close this Agreement and to make the initial Loan
or issue the initial Letter of Credit is subject to the satisfaction of each of
the following conditions:
a. Executed Loan Documents. This Agreement, the Revolving
Credit Notes and the Swingline Note shall have been duly authorized, executed
and delivered to the Administrative Agent by the parties thereto, shall be in
full force and effect and no default shall exist thereunder, and the Borrowers
shall have delivered original counterparts thereof to the Administrative Agent.
b. Closing Certificates, Etc.
(1) Officers's Certificate of the Borrowers. The
Administrative Agent shall have received a certificate from a Responsible
Officer, in form and substance satisfactory to the Administrative Agent, to the
effect that all representations and warranties of the Borrowers contained in
this Agreement and the other Loan Documents are true, correct and complete; that
the Borrowers are not in violation of any of the covenants contained in this
Agreement and the other Loan Documents; that, after giving effect to the
transactions contemplated by this Agreement, no Default or Event of Default has
occurred and is continuing; and that the Borrowers have satisfied each of the
closing conditions, including without limitation, those set forth in Section
5.2(g).
(2) Certificate of Secretary of Each Borrower. The
Administrative Agent shall have received a certificate of the secretary or
assistant secretary of each Borrower certifying as to the incumbency and
genuineness of the signature of each officer of such Borrower executing Loan
Documents to which it is a party and certifying that attached thereto is a true,
correct and complete copy of (A) the articles or certificate of incorporation,
or articles of organization, of such Borrower and all amendments thereto,
certified as of a recent date by the appropriate Governmental Authority in its
jurisdiction of incorporation, (B) the bylaws or the operating agreement of such
Borrower as in effect on the date of such certifications, (C) resolutions or
other evidence of authorization duly adopted by the board of directors or
manager of such Borrower authorizing the borrowings contemplated hereunder and
the execution, delivery and performance of
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this Agreement and the other Loan Documents to which it is a party, and (D) each
certificate required to be delivered pursuant to Section 5.2(b)(iii).
(3) Certificates of Good Standing. The Administrative
Agent shall have received certificates as of a recent date of the good standing
of each Borrower under the laws of its jurisdiction of organization and each
other jurisdiction where such Borrower is qualified to do business and a
certificate of the relevant taxing authorities of such jurisdictions certifying
that such Person has filed required tax returns and owes no delinquent taxes.
(4) Opinions of Counsel. The Administrative Agent
shall have received favorable opinions of counsel to each Borrower addressed to
the Administrative Agent and the Lenders with respect to such Borrower, the Loan
Documents and such other matters as the Lenders shall request.
(5) Tax Forms. The Administrative Agent shall have
received copies of the United States Internal Revenue Service forms required by
Section 4.11(e) hereof.
c. Lien Search. The Administrative Agent shall have received
the results of a Lien search (including a search as to judgments, pending
litigation and tax matters) made against each Borrower under the Uniform
Commercial Code (or applicable judicial docket) as in effect in any state in
which any of its assets are located (other than locations of equipment with an
aggregate value of less than One Million Dollars ($1,000,000) on consignment to
a customer and other than locations of equipment owned by JLG Equipment
Services, Inc. and leased to non-affiliated third parties), indicating among
other things that its assets are free and clear of any Lien except for Liens
permitted hereunder.
d. Hazard and Liability Insurance. The Administrative Agent
shall have received certificates of insurance, evidence of payment of all
insurance premiums for the current policy year of each, and, if requested by the
Administrative Agent, copies (certified by a Responsible Officer) of insurance
policies otherwise in form and substance reasonably satisfactory to the
Administrative Agent.
e. Consents; Defaults.
(1) Governmental and Third Party Approvals. The
Borrowers shall have obtained all necessary approvals, authorizations and
consents of any Person and of all Governmental Authorities and courts having
jurisdiction with respect to the transactions contemplated by this Agreement and
the other Loan Documents.
(2) No Injunction, Etc. No action, proceeding,
investigation, regulation or legislation shall have been instituted, threatened
or proposed before any Governmental Authority to enjoin, restrain, or prohibit,
or to obtain substantial damages in respect of, or which is
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related to or arises out of, this Agreement or the other Loan Documents or the
consummation of the transactions contemplated hereby or thereby, or which, in
the Administrative Agent's sole reasonable discretion, would make it inadvisable
to consummate the transactions contemplated by this Agreement and such other
Loan Documents.
(3) No Event of Default. No Default or Event of
Default shall have occurred and be continuing.
f. Financial Matters.
(1) Financial Statements. The Administrative Agent
shall have received the most recent audited Consolidated financial statements of
the Borrowers and their Subsidiaries, all in form and substance satisfactory to
the Administrative Agent.
(2) Financial Condition Certificate. The Borrowers
shall have delivered to the Administrative Agent a certificate, in form and
substance satisfactory to the Administrative Agent, certifying that (A) the
Borrowers and each of their Subsidiaries make the representations and warranties
set forth in Section 6.1(q) hereof (Solvency); (B) the Borrowers' payables are
current and not past due except for such payables which the Borrowers pay in the
ordinary course of business, without objection by the payee; (C) attached
thereto are pro forma financial statements of JLG and its Subsidiaries as of
March 31, 1999 setting forth on a pro forma basis the financial condition of JLG
and its Subsidiaries on a Consolidated basis as of that date, reflecting on a
pro forma basis the effect of the transactions contemplated herein (including
the Merger), including all fees and expenses in connection therewith, and
evidencing compliance on a pro forma basis with the covenants contained in
Articles IX and X hereof; and (D) attached thereto are the financial projections
previously delivered to the Administrative Agent, and that such financial
projections represent the good faith opinions of the Borrowers and senior
management thereof as to the projected results contained therein, subject to the
qualifications and limitations set forth therein.
(3) Payment at Closing; Fee Letters. The Borrowers
shall have paid the fees set forth or referenced in Section 4.3 and any other
accrued and unpaid fees or commissions due hereunder (including, without
limitation, legal fees and expenses) to the Administrative Agent and Lenders,
and to any other Person such amount as may be due thereto in connection with the
transactions contemplated hereby, including all taxes, fees and other charges in
connection with the execution, delivery, recording, filing and registration of
any of the Loan Documents. The Administrative Agent shall have received duly
authorized and executed copies of the fee letter agreement referred to in
Section 4.3(c).
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g. Gradall Tender Offer and Merger.
(1) JLG shall have successfully accepted for payment
shares tendered pursuant to the Tender Offer representing a number of shares of
common stock of Gradall which constitutes more than 50% of the voting power of
Gradall.
(2) Borrowers shall deliver to Administrative Agent
an executed copy of the Merger Agreement.
(3) All conditions to the Merger set forth in Article
6 of the Merger Agreement (other than the stockholder vote, if any, referenced
in Subsection 6.1(a) thereof) shall have been met.
(4) No condition exists that authorizes a party to
the Merger Agreement to terminate the Merger Agreement under Section 7.1 thereof
or otherwise.
(5) No action has been taken by any party to the
Merger Agreement to (i) extend the time for performance of any obligations or
other acts of any party under the Merger Agreement or (ii) waive inaccuracies in
or compliance by any other party with the terms of the Merger Agreement.
h. Payoff Letter. The Administrative Agent shall have received
a payoff letter from Key Bank, and such payoff amounts shall be paid with the
proceeds of the first advance hereunder.
i. Amendment to Overdraft Facility. Borrowers shall have
delivered to Administrative Agent a fully-executed amendment to the document
evidencing the Overdraft Facility Debt, in form and substance satisfactory to
Administrative Agent.
j. Miscellaneous.
(1) Notice of Borrowing. The Administrative Agent
shall have received a Notice of Borrowing from the Borrowers in accordance with
Section 2.3(a), and a Notice of Account Designation specifying the account or
accounts to which the proceeds of any Loans made after the Closing Date are to
be disbursed.
(2) Proceedings and Documents. All opinions,
certificates and other instruments and all proceedings in connection with the
transactions contemplated by this Agreement shall be satisfactory in form and
substance to the Lenders. The Lenders shall have received copies of all other
instruments and other evidence as the Lender may reasonably request, in form and
substance satisfactory to the Lenders, with respect to the transactions
contemplated by this Agreement and the taking of all actions in connection
therewith.
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(3) Existing Debt. The documentation evidencing: (i)
the Overdraft Facility Debt and (ii) the PIDA Debt, shall be satisfactory to
Administrative Agent.
(4) Due Diligence and Other Documents. The Borrowers
shall have delivered to the Administrative Agent such other documents,
certificates and opinions as the Administrative Agent may reasonably request.
C. Conditions to All Extensions of Credit. The obligations of the
Lenders to make any Extensions of Credit are subject to the satisfaction of the
following conditions precedent on the relevant borrowing or issue date, as
applicable:
a. Continuation of Representations and Warranties. The
representations and warranties contained in Article VI shall be true and correct
in all material respects on and as of such borrowing or issuance date with the
same effect as if made on and as of such date, except for any representation and
warranty made as of an earlier date, which representation and warranty shall
remain true and correct as of such earlier date.
b. No Existing Default. No Default or Event of Default shall
have occurred and be continuing hereunder (i) on the borrowing date with respect
to such Loan or after giving effect to the Loans to be made on such date or (ii)
on the issue date with respect to such Letter of Credit or after giving affect
to such Letter of Credit on such date.
c. Officer's Compliance Certificate; Additional Documents. The
Administrative Agent shall have received the current Officer's Compliance
Certificate and each additional document, instrument, legal opinion or other
item of information reasonably requested by it.
VI. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
A. Representations and Warranties. To induce the Administrative Agent
and Lenders to enter into this Agreement and to induce the Lenders to make
Extensions of Credit, each Borrower hereby represents and warrants to the
Administrative Agent and Lenders (it being understood and agreed that Gradall
and its Subsidiaries are Subsidiaries for purposes of making the following
representations and warranties) both before and after giving effect to the
transactions contemplated hereunder (including the Merger) that:
a. Organization; Power; Qualification. Each Borrower and each
Subsidiary is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, has the power and
authority to own its properties and to carry on its business as now being and
hereafter proposed to be conducted and is duly qualified and authorized to do
business in each jurisdiction in which the character of its properties or the
nature
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of its business requires such qualification and authorization, except where any
failure to be so qualified would not have a Material Adverse Effect. The
jurisdictions in which the Borrowers and their Subsidiaries are organized and
qualified to do business as of the Closing Date are described on Schedule
6.1(a).
b. Ownership; Investments. Each Subsidiary of any Borrower as
of the Closing Date is listed on Schedule 6.1(b). As of the Closing Date, except
as set forth on Schedule 6.1(b), all outstanding shares and membership interests
of the Subsidiaries are held by JLG. All outstanding shares of the Borrowers and
their Subsidiaries have been duly authorized and validly issued and are fully
paid and nonassessable. As of the Closing Date, there are no outstanding stock
purchase warrants, subscriptions, options, securities, instruments or other
rights of any type or nature whatsoever, which are convertible into,
exchangeable for or otherwise provide for or permit the issuance of capital
stock of any Borrower or any Subsidiary, except as described on Schedule 6.1(b).
No Borrower has any Subsidiaries or Affiliates, or investments in or loans to
any Person other than those Persons listed on Schedule 6.1(b) or loans or
investments permitted by Section 10.4.
c. Authorization of Agreement, Loan Documents and Borrowing.
Each Borrower and each Subsidiary, to the extent a party thereto, has the right,
power and authority under the laws of the jurisdiction of its formation and
under its articles or certificate of incorporation and bylaws, or its articles
of organization and operating agreement, and has taken all necessary corporate
and other action to authorize the execution, delivery and performance of this
Agreement and each of the other Loan Documents to which it is a party in
accordance with their respective terms. This Agreement and each of the other
Loan Documents have been duly executed and delivered by the duly authorized
officers of each Borrower and each Subsidiary party thereto, and each such
document constitutes the legal, valid and binding obligation of each Borrower
party thereto, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar state or federal debtor relief laws from time to time in effect which
affect the enforcement of creditors' rights in general and the availability of
equitable remedies.
d. Compliance of Agreement, Loan Documents and Borrowing with
Laws, Etc. The execution, delivery and performance by each Borrower and each
Subsidiary of the Loan Documents to which each such Person is a party, in
accordance with their respective terms, the borrowings hereunder and the
transactions contemplated hereby do not and will not, by the passage of time,
the giving of notice or otherwise, (i) require any Governmental Approval or
violate any Applicable Law relating to any Borrower or any Subsidiary, (ii)
conflict with, result in a breach of or constitute a default under the articles
of incorporation, bylaws or other organizational documents of any Borrower or
any Subsidiary or any material indenture, agreement or other instrument to which
such Person is a party or by which any of its properties may be bound or any
Governmental Approval relating to such Person, or (iii) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by such Person other than Liens arising under the
Loan Documents.
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e. Compliance with Law; Governmental Approvals. Each Borrower
and each Subsidiary (i) has all Governmental Approvals required by any
Applicable Law for it to conduct its business, each of which is in full force
and effect, is final and not subject to review on appeal and is not the subject
of any pending or, to the best of its knowledge, threatened attack by direct or
collateral proceeding, and (ii) is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable Laws relating to it
or any of its respective properties, except where failure to comply would not
have a Material Adverse Effect.
f. Tax Returns and Payments. Each Borrower and each Subsidiary
has duly filed or caused to be filed all federal, state, local and other tax
returns required by Applicable Law to be filed, and has paid, or made adequate
provision for the payment of, all federal, state, local and other taxes,
assessments and governmental charges or levies upon it and its property, income,
profits and assets which are due and payable, except such taxes as are being
contested in good faith and as to which adequate reserves have been provided. To
the knowledge of the Responsible Officers, no Governmental Authority has
asserted any Lien or other claim against any Borrower or any Subsidiary with
respect to unpaid taxes which has not been discharged or resolved. The charges,
accruals and reserves on the books of each Borrower and each Subsidiary in
respect of federal, state, local and other taxes for all Fiscal Years and
portions thereof since the organization of the Borrowers and the Subsidiaries
are in the judgment of the Borrowers adequate, and the Borrowers have no
knowledge of any additional taxes or assessments for any of such years.
g. Intellectual Property Matters. Each Borrower and each
Subsidiary owns or possesses rights to use all franchises, licenses, copyrights,
copyright applications, patents, patent rights or licenses, patent applications,
trademarks, trademark rights, trade names, trade name rights, and all other
intellectual property which is material to its business. No event has occurred
which permits, or after notice or lapse of time or both would permit, the
revocation or termination of any such rights, and no Borrower nor any Subsidiary
thereof is liable to any Person for infringement under Applicable Law with
respect to any such rights as a result of its business operations, except where
such revocation, termination of infringement would not have a Material Adverse
Effect.
h. Environmental Matters. Except with respect to any
noncompliance with the following that would not have a Material Adverse Effect,
(1) The properties owned, leased or operated by each
Borrower and each Subsidiary now or in the past do not contain, and to their
knowledge have not previously contained, any Hazardous Materials in amounts or
concentrations which (A) constitute or constituted a violation of applicable
Environmental Laws or (B) could give rise to liability under applicable
Environmental Laws;
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(2) Each Borrower, each Subsidiary and their
properties and all operations conducted in connection therewith are in
compliance, and have been in compliance, with all applicable Environmental Laws,
and there is no contamination at, under or about such properties or such
operations which could interfere with the continued operation of such properties
or impair the fair saleable value thereof; and each Borrower and each Subsidiary
has received all permits and filed all notifications to carry on its respective
business(es);
(3) No Borrower or Subsidiary has received any notice
of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters, Hazardous Materials, or compliance
with Environmental Laws, nor does any Borrower or Subsidiary have knowledge or
reason to believe that any such notice will be received or is being threatened;
(4) Hazardous Materials have not been transported or
disposed of to or from the properties owned, leased or operated by the Borrowers
and their Subsidiaries in violation of, or in a manner or to a location which
could give rise to liability under, Environmental Laws, nor have any Hazardous
Materials been generated, treated, stored or disposed of at, on or under any of
such properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Laws;
(5) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of any Borrower,
threatened, under any Environmental Law to which any Borrower or any Subsidiary
is or will be named as a party, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to any Borrower, any Subsidiary or such properties or operations;
and
(6) There has been no release, or to the best of each
Borrower's knowledge, threat of release, of Hazardous Materials at or from
properties owned, leased or operated by any Borrower or any Subsidiary, now or
in the past, in violation of or in amounts or in a manner that could give rise
to liability under Environmental Laws.
i. ERISA.
(1) As of the Closing Date, no Borrower, Subsidiary
or ERISA Affiliate maintains or contributes to, or has any obligation under, any
Employee Benefit Plans other than those identified on Schedule 6.1(i);
(2) Each Borrower and each ERISA Affiliate is in
material compliance with all applicable provisions of ERISA and the regulations
and published interpretations thereunder with respect to all Employee Benefit
Plans except for any required amendments for which the remedial amendment period
as defined in Section 401(b) of the Code has
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not yet expired. Each Employee Benefit Plan that is intended to be qualified
under Section 401(a) of the Code has been determined by the Internal Revenue
Service to be so qualified, and each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code. No material liability
has been incurred by any Borrower or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan
or any Multiemployer Plan. Except as set forth on Schedule 6.1(i)(ii), no
Borrower, Subsidiary or ERISA Affiliate maintains or contributes to or has
maintained or contributed to any Multiemployer Plan under which such Borrower,
Subsidiary or ERISA Affiliate could have any withdrawal liability.
(3) No Pension Plan that does not satisfy the
requirements for a standard termination under Section 4041(b) of ERISA has been
terminated, nor has any accumulated funding deficiency (as defined in Section
412 of the Code) been incurred (without regard to any waiver granted under
Section 412 of the Code), nor has any funding waiver from the Internal Revenue
Service been received or requested with respect to any Pension Plan, nor has any
Borrower or any ERISA Affiliate failed to make any material contributions or to
pay any material amounts due and owing as required by Section 412 of the Code,
Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of
such contributions under Section 412 of the Code or Section 302 of ERISA, nor
has there been any event requiring any disclosure under Section 4041(c)(3)(C) or
4063(a) of ERISA with respect to any Pension Plan;
(4) No Borrower or ERISA Affiliate has: (A) engaged
in a nonexempt prohibited transaction described in Section 406 of the ERISA or
Section 4975 of the Code, (B) incurred any liability to the PBGC which remains
outstanding other than the payment of premiums and there are no premium payments
for which the deadline for payment has passed and which are due and unpaid, (C)
failed to make a required material contribution or material payment to a
Multiemployer Plan, or (D) failed to make a required material installment or
other required material payment under Section 412 of the Code;
(5) No Termination Event has occurred or is
reasonably expected to occur; and
(6) No proceeding, claim, lawsuit and/or
investigation is existing or, to the knowledge of the Responsible Officers,
threatened concerning or involving any Employee Benefit Plan, other than routine
claims for benefits.
(7) Except as set forth on Schedule 6.1(i)(vii), the
aggregate liability for accrued benefits and other ancillary benefits under each
Pension Plan that is or will be sponsored or maintained by any Borrower, any
Subsidiary or any ERISA Affiliate (determined on the basis of the actuarial
assumptions prescribed for valuing benefits under Financial Accounting Standard
132 does not exceed the aggregate fair market value of the assets under each
Pension Plan.
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(8) The aggregate liability, if any, of each
Borrower, Subsidiary and ERISA Affiliate arising out of or relating to a failure
of any Employee Benefit Plan to comply with the provisions of ERISA or the Code,
will not have a Material Adverse Effect on any Borrower or Subsidiary; and
(9) Except as set forth on Schedule 6.1(i)(ix), there
does not exist any unfunded liability (determined on the basis of actuarial
assumptions utilized by the actuary for the plan in preparing the most recent
Annual Report) of any Borrower, Subsidiary or ERISA Affiliate under any plan,
program or arrangement providing post-retirement life or health benefits.
j. Margin Stock. No Borrower or Subsidiary is engaged
principally or as one of its activities in the business of extending credit for
the purpose of purchasing or carrying any margin stock (as each such term is
defined or used in Regulation U of the Board of Governors of the Federal Reserve
System). No part of the proceeds of any of the Loans or Letters of Credit will
be used for any purpose which violates the provisions of Regulation T, U or X of
such Board of Governors.
k. Government Regulation. No Borrower or Subsidiary is an
"investment company" or a company "controlled" by an "investment company" (as
each such term is defined or used in the Investment Company Act of 1940, as
amended). No Borrower or Subsidiary is, or after giving effect to any Extension
of Credit will be, subject to regulation under the Public Utility Holding
Company Act of 1935, as amended, or any other Applicable Law which limits its
ability to incur or consummate the transactions contemplated hereby.
l. Material Contracts. Schedule 6.1(l) sets forth a complete
and accurate list of all Material Contracts of each Borrower and each Subsidiary
in effect as of the Closing Date not listed on any other Schedule hereto; other
than as set forth in Schedule 6.1(l), each such Material Contract is, and after
giving effect to the consummation of the transactions contemplated by the Loan
Documents will be, in full force and effect in accordance with the terms
thereof. Each Borrower and each Subsidiary has delivered to the Administrative
Agent a true and complete copy of each Material Contract required to be listed
on Schedule 6.1(l) or any other Schedule hereto.
m. Employee Relations. No Borrower or Subsidiary is, as of the
Closing Date, party to any collective bargaining agreement nor has any labor
union been recognized as the representative of its employees, except as set
forth on Schedule 6.1(m). Except as set forth in Schedule 6.1(m), no Borrower
knows of any pending, threatened or contemplated strikes, work stoppage or other
collective labor disputes involving its employees or those of its Subsidiaries.
n. Burdensome Provisions. No Borrower or Subsidiary is a party
to any indenture, agreement, lease or other instrument, or subject to any
corporate or partnership restriction, Governmental Approval or Applicable Law
which is so unusual or burdensome as in the foreseeable future could, in the
good faith judgment of the Responsible Officers, be reasonably expected to have
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a Material Adverse Effect. No Borrower or Subsidiary presently anticipates that
future expenditures needed to meet the provisions of any existing statutes,
orders, rules or regulations of a Governmental Authority will be so burdensome
as to have a Material Adverse Effect.
o. Financial Statements. Copies of (A) the Consolidated
balance sheet of JLG and its Subsidiaries as of July 31, 1998 and the related
statements of income and retained earnings and cash flows for the Fiscal Years
then ended (the "Audited JLG Financial Statements") and (B) the unaudited
Consolidated balance sheet of JLG and its Subsidiaries as of April 30, 1999 and
related unaudited interim statements of revenue and retained earnings have been
furnished to the Administrative Agent and each Lender. The Audited JLG Financial
Statements, including the related schedules and notes thereto, (Y) have been
prepared in accordance with GAAP and (Z) are complete and correct and fairly
present the assets, liabilities and financial position of JLG and its
Subsidiaries as at such dates and the results of operations and changes of
financial position for the periods then ended. Neither JLG nor any of its
Subsidiaries has any Debt, obligation or other unusual forward or long-term
commitment which is not, in accordance with GAAP, fairly presented in the
foregoing financial statements or in the notes thereto.
(1) Copies of (A) the Consolidated balance sheet of
Gradall and its Subsidiaries as of December 31, 1998 and the related statements
of income and retained earnings and cash flows for the Fiscal Years then ended
(the "Audited Gradall Financial Statements") and (B) the unaudited Consolidated
balance sheet of Gradall and its Subsidiaries as of March 31, 1999 and related
unaudited interim statements of revenue and retained earnings have been
furnished to the Administrative Agent and each Lender. The Audited Gradall
Financial Statements, including the related schedules and notes thereto, (Y)
have been prepared in accordance with GAAP and (Z) are complete and correct and
fairly present the assets, liabilities and financial position of Gradall and its
Subsidiaries as at such dates and the results of operations and changes of
financial position for the periods then ended. Neither Gradall nor any of its
Subsidiaries has any Debt, obligation or other unusual forward or long-term
commitment which is not, in accordance with GAAP, fairly presented in the
foregoing financial statements or in the notes thereto.
p. No Material Adverse Change. (i) Since July 31, 1998 , there
has been no material adverse change in the properties, business, operations,
prospects, or condition (financial or otherwise) of JLG or its Subsidiaries, on
a Consolidated basis; and (ii) since December 31, 1998 there has been no
material adverse change in the properties, business, operations, prospect or
condition (financial or otherwise) of Gradall or its Subsidiaries, on a
Consolidated basis, and which, in either case, could reasonably be expected to
have a Material Adverse Effect.
q. Solvency. Excluding intercompany indebtedness, each
Borrower and, to the best of each Borrower's knowledge, each Subsidiary is, and
after receipt and application of the first advance under this Agreement will be,
solvent such that (i) the fair value of its assets (including without limitation
the fair salable value of the goodwill and other intangible property of such
Borrower or Subsidiary) is greater than the total amount of its liabilities,
including without
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limitation, contingent liabilities, (ii) the present fair salable value of its
assets (including without limitation the fair salable value of the goodwill and
other intangible property of such Borrower or Subsidiary) is not less than the
amount that will be required to pay the probable liability on their debts as
they become absolute and matured, and (iii) they are able to realize upon their
assets and pay their debts and other liabilities, contingent obligations and
other commitments as they mature in the normal course of business. No Borrower
or Subsidiary intends to, nor believes that it will, incur debts or liabilities
beyond its ability to pay as such debts and liabilities mature, and no Borrower
or Subsidiary is engaged in a business or transaction, or about to engage in a
business or transaction, for which its property would constitute unreasonably
small capital after giving due consideration to the prevailing practice and
industry in which it is engaged. For purposes of this Section, in computing the
amount of contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that reasonably can
be expected to become an actual matured liability of the applicable Borrower or
Subsidiary.
Each Borrower hereby agrees that to the extent a Borrower
shall have paid more than its proportionate share of any payment made hereunder,
such Borrower shall be entitled to seek and receive contribution from and
against any other Borrower which has not paid its proportionate share of such
payment; provided however such Borrower shall not seek any such contribution
from any other Borrower until the Obligations have been paid in full and the
Commitments of the Lenders hereunder have been terminated. The provisions of
this Section shall in no respect limit the obligations and liabilities of any
Borrower to Lenders, and each Borrower shall remain liable to Lenders, jointly
and severally, for the full amount of Borrowers' obligations hereunder and under
the other Loan Documents.
r. Titles to Properties. Each Borrower and each Subsidiary has
such title to the real property , personal property and assets owned by it as is
necessary to the conduct of its business including, but not limited to, those
reflected on the balance sheets of JLG and its Subsidiaries delivered pursuant
to Section 6.1(o), except those which have been disposed of by the Borrowers or
their Subsidiaries subsequent to such date which dispositions have been in the
ordinary course of business or as otherwise expressly permitted hereunder.
s. Liens. None of the properties and assets of any Borrower or
any Subsidiary thereof is subject to any Lien, except Liens permitted pursuant
to Section 10.3. No financing statement under the Uniform Commercial Code of any
state which names any Borrower or any Subsidiary thereof or any of their
respective trade names or divisions as debtor and which has not been terminated,
has been filed in any state or other jurisdiction and no Borrower or any
Subsidiary thereof has signed any such financing statement or any security
agreement authorizing any secured party thereunder to file any such financing
statement, except, in each case, to perfect those Liens permitted by Section
10.3 hereof.
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t. Debt and Guaranty Obligations. Except for such Debt and
Guaranty Obligations otherwise permitted pursuant to this Agreement, Schedule
6.1(t) is a complete and correct listing of all Debt and Guaranty Obligations of
each Borrower and each Subsidiary as of the Closing Date in excess of
$1,000,000. Each Borrower and each Subsidiary has performed and is in compliance
with all of the terms of such Debt and Guaranty Obligations and all instruments
and agreements relating thereto, and no default or event of default, or event or
condition which with notice or lapse of time or both would constitute such a
default or event of default on the part of any Borrower or any Subsidiary exists
with respect to any such Debt or Guaranty Obligation.
u. Litigation. Except for matters existing on the Closing Date
and set forth on Schedule 6.1(u), or other matters which are not reasonably
likely to have a Material Adverse Effect, there are no actions, suits or
proceedings pending nor, to the knowledge of any Borrower, threatened against or
in any other way relating adversely to or affecting any Borrower or any
Subsidiary thereof or any of their respective properties in any court or before
any arbitrator of any kind or before or by any Governmental Authority.
v. Absence of Defaults. No event has occurred or is continuing
which constitutes a Default or an Event of Default, or which constitutes, or
which with the passage of time or giving of notice or both would constitute, a
default or event of default by any Borrower or any Subsidiary under any Material
Contract or judgment, decree or order to which any Borrower or any Subsidiary is
a party or by which any Borrower or any Subsidiary or any of their respective
properties may be bound or which would require any Borrower or any Subsidiary to
make any payment thereunder prior to the scheduled maturity date therefor.
w. Accuracy and Completeness of Information. All written
information, reports and other papers and data produced by or on behalf of each
Borrower and any Subsidiary thereof and furnished to the Lenders, taken as a
whole, including without limitation all financial statements, were, at the time
the same were so furnished, complete and correct in all material respects and
did not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statement contained therein not materially
misleading. No document, including without limitation any financial statement,
furnished or written statement made to the Administrative Agent or the Lenders
by any Borrower or any Subsidiary thereof in connection with the negotiation,
preparation or execution of this Agreement or any of the Loan Documents contains
or will contain any untrue statement of a fact material to the creditworthiness
of any Borrower or any Subsidiary nor omits nor will omit to state a fact
necessary in order to make the statements contained therein not materially
misleading. As of the Closing Date, no Borrower is aware of any facts which
it has not disclosed in writing, including without limitation in public filings
under the 1934 Act, to the Administrative Agent having a Material Adverse Effect
as of the Closing Date, or insofar as such Borrower can now foresee, could
reasonably be expected to have a Material Adverse Effect.
x. Year 2000 Compliance. Borrowers and Subsidiaries have
commenced to conduct a review and assessment of their material computer systems
and applications, micro-
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processor based goods and equipment owned or used by them in their business, and
all products currently sold by them, and are making inquiry of their material
suppliers, vendors and customers, with respect to functionality before, during
and after the year 2000 (the "Year 2000 Problem"). Borrowers and Gradall have
prepared a program to ensure that all such systems, goods, equipment and
products owned or used by them and material to the conduct of their business
will be Year 2000 Compliant in a timely manner. Borrowers and Gradall reasonably
believe, based on the foregoing review, assessment and inquiry that the Year
2000 Problem will not result in a Material Adverse Effect.
y. Fees and Commissions. No Borrower owes any fees or
commissions of any kind, and know of no claim for any fees or commissions, in
connection with Borrowers' obtaining the Commitment or the Loans from Lenders,
except those provided herein.
z. Share Purchase; Merger Agreement.
(1) Validity. Each Borrower, Gradall and JLG
Acquisition Corp. has the power and authority under the laws of its state of
incorporation and under its articles of incorporation and by-laws to enter into
and perform the Share Purchase and Merger Agreement (to which each is a party,
respectively) and all other agreements, documents and actions required
thereunder; and all actions (corporate or otherwise) necessary or appropriate
for the execution and performance by each Borrower, Gradall and JLG Acquisition
Corp. of the Share Purchase and the Merger Agreement (to which each is a party,
respectively) and all other documents, agreements and actions required
thereunder have been taken.
(2) No Violations. The making and performance of the
Share Purchase, the Merger Agreement and all other agreements, documents and
actions required thereunder, will not violate any provision of any law or
regulation, federal, state or local, including without limitation all state
corporate laws and judicial precedents of the states of incorporation of each
Borrower, Gradall and JLG Acquisition Corp. and will not violate any provisions
of the articles of incorporation and by-laws of any Borrower, Gradall or JLG
Acquisition Corp., or constitute a default under any agreement by which any
Borrower, Gradall or JLG Acquisition Corp. or its respective property may be
bound.
aa. Foreign Assets Control Regulations. Neither the borrowing
by Borrowers nor their use of the proceeds thereof will violate the Foreign
Assets Control Regulations, the Foreign Funds Control Regulations, the
Transactions Control Regulations, the Cuban Assets Control Regulations, the
Iranian Assets Control Regulations, the Libyan Sanctions Regulations, the
Nicaraguan Trade Control Regulations or the South African Transactions
Regulations of the United States Treasury Department (31 C.F.R. Subtitle B,
Chapter V, as amended).
ab. Public Utility Holding Company Act. No Borrower is a
"public utility holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as
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amended (the "1935 Act"), nor does the execution, delivery and performance of
this Agreement and the Notes require any filing, authorization or consent under
the 1935 Act.
B. Survival of Representations and Warranties, Etc. All representations
and warranties set forth in this Article VI and all representations and
warranties contained in any certificate, or any of the Loan Documents (including
but not limited to any such representation or warranty made in or in connection
with any amendment thereto) shall constitute representations and warranties made
under this Agreement. All representations and warranties made under this
Agreement shall be made or deemed to be made at and as of the Closing Date,
shall survive the Closing Date and shall not be waived by the execution and
delivery of this Agreement, any investigation made by or on behalf of the
Lenders or any borrowing hereunder.
VII. FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in Section 13.11 hereof, the Borrowers will furnish or cause to be furnished to
the Administrative Agent and to the Lenders at their respective addresses as set
forth on Schedule 2, or such other office as may be designated by the
Administrative Agent and Lenders from time to time:
A. Financial Statements.
a. Quarterly Financial Statements. As soon as practicable and
in any event within forty-five (45) days after the end of the first three (3)
fiscal quarters of each Fiscal Year, an unaudited Consolidated balance sheet of
JLG and its Consolidated Subsidiaries as of the close of such fiscal quarter and
unaudited Consolidated statements of income, retained earnings and cash flows
for the fiscal quarter then ended and that portion of the Fiscal Year then
ended, including the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures for the preceding Fiscal Year and
prepared by the Borrowers in accordance with GAAP (excluding normal year-end
adjustments and other exceptions permitted under Regulation S-X promulgated by
the Securities Exchange Commission) and, if applicable, containing disclosure of
the effect on the financial position or results of operations of any change in
the application of accounting principles and practices during the period, and
certified by the chief financial officer of JLG to present fairly in all
material respects the financial condition of JLG and its Consolidated
Subsidiaries on a Consolidated basis as of their respective dates and the
results of operations of JLG and its Consolidated Subsidiaries on a Consolidated
basis for the respective periods then ended, subject to normal year end
adjustments.
b. Annual Financial Statements. As soon as practicable and in
any event within ninety (90) days after the end of each Fiscal Year, an audited
Consolidated balance sheet of JLG and its Consolidated Subsidiaries as of the
close of such Fiscal Year and audited Consolidated statements of income,
retained earnings and cash flows for the Fiscal Year then ended, including the
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notes thereto, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year, and the audit report
prepared by a nationally recognized independent certified public accounting firm
in accordance with GAAP and, if applicable, containing disclosure of the effect
on the financial position or results of operation of any change in the
application of accounting principles and practices during the year, and
accompanied by a report thereon by such certified public accountants that is not
qualified with respect to scope limitations imposed by JLG or any of its
Consolidated Subsidiaries, as to "going concern" or like qualification or with
respect to accounting principles followed by JLG or any of its Consolidated
Subsidiaries not in accordance with GAAP.
B. Officer's Compliance Certificate. At each time financial statements
are delivered pursuant to Sections 7.1 (a) or (b), a certificate of the chief
financial officer of JLG in the form of Exhibit F attached hereto (an "Officer's
Compliance Certificate").
C. Accountants' Certificate. At each time financial statements are
delivered pursuant to Section 7.1(b), a certificate of the independent public
accountants certifying such financial statements addressed to the Administrative
Agent for the benefit of the Lenders and stating that in making the examination
necessary for the certification of such financial statements, they obtained no
knowledge of any Default or Event of Default or, if such is not the case,
specifying such Default or Event of Default and its nature and period of
existence.
D. Other Reports.
a. Promptly upon receipt thereof, copies of all final material
reports, if any, submitted to any Borrower or the Board of Directors of any
Borrower by its independent public accountants in connection with their auditing
function, including, without limitation, any management report and any
management responses thereto; and
b. promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports as any Borrower or
Subsidiary shall send to its stockholders, copies of all registration statements
(without exhibits), and all annual, quarterly or other reports which any
Borrower or Subsidiary files with the Securities and Exchange Commission (or any
governmental body or agency succeeding to the functions of the Securities and
Exchange Commission) including without limitation, Forms 10Q and Forms 10K; and
c. Such other information regarding the operations, business
affairs and financial condition of any Borrower or Subsidiary as the
Administrative Agent or any Lender may reasonably request.
E. Notice of Litigation and Other Matters. Prompt (but in no event
later than ten (10) Business Days after a Responsible Officer of a Borrower
obtains knowledge thereof) telephonic and written notice of:
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a. the commencement of all proceedings and investigations by
or before any Governmental Authority and all actions and proceedings in any
court or before any arbitrator against or involving any Borrower or any
Subsidiary thereof or any of their respective properties, assets or businesses,
or the happening of any event or the assertion or threat of any claim which, in
any such case, could reasonably be expected to have a Material Adverse Effect;
b. any notice of any violation received by any Borrower or any
Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws which could reasonably
be expected to have a Material Adverse Effect;
c. any labor controversy that has resulted in, or threatens to
result in, a strike or other work action against any Borrower or any Subsidiary
thereof that could reasonably be expected to have a Material Adverse Effect;
d. any attachment, judgment, lien, levy or order exceeding
$5,000,000 assessed against or threatened against any Borrower or any Subsidiary
thereof (other than Liens permitted under Section 10.3),
e. any Default or Event of Default, or any event which
constitutes a default or event of default under any Material Contract to which
any Borrower or any of its Subsidiaries is a party or by which any Borrower or
any Subsidiary thereof or any of their respective properties may be bound;
f. (i) any unfavorable determination letter from the Internal
Revenue Service regarding the qualification of an Employee Benefit Plan under
Section 401(a) of the Code (along with a copy thereof), (ii) all notices
received by any Borrower or any ERISA Affiliate of the PBGC's intent to
terminate any Pension Plan or to have a trustee appointed to administer any
Pension Plan, (iii) all notices received by any Borrower or any ERISA Affiliate
from a Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA and (iv) any Borrower
obtaining knowledge or reason to know that any Borrower or any ERISA Affiliate
has filed or intends to file a notice of intent to terminate any Pension Plan
under a distress termination within the meaning of Section 4041(c) of ERISA
which could reasonably be expected to have a Material Adverse Effect;
g. with respect to the Environmental Laws, in connection with
the conduct of any Borrower's or any Subsidiary's business(es) or operations,
any Person (including, without limitation, EPA or any state or local agency)
provides oral or written notification to any Borrower or any Subsidiary, or any
Borrower or any Subsidiary otherwise becomes aware of a condition with regard to
an actual or imminently threatened release of Hazardous Substances; or an
assertion of liability under the Environmental Laws of any actual or alleged
failure to comply with
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or perform, breach, violation or default under any such statutes or regulations
or of the occurrence or existence of any facts, events or circumstances which
with the passage of time, the giving of notice, or both, could create such a
breach, violation or default which could reasonably be expected to have a
Material Adverse Effect; and
h. any event which makes any of the representations set forth
in Section 6.1 inaccurate in any material respect as of the date it was made.
F. Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of the Borrowers
to the Administrative Agent or any Lender (other than financial forecasts)
whether pursuant to this Article VII or any other provision of this Agreement,
taken as a whole, shall be, at the time the same is so furnished, complete and
correct in all material respects and will not contain any untrue statement of
material fact or omit to state a material fact necessary to make the statements
contained therein not materially misleading.
VIII. AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner
provided for in Section 13.11, each Borrower will, and will cause each
Subsidiary to:
A. Preservation of Corporate Existence and Related Matters. Except as
permitted by Section 10.5, preserve and maintain its separate legal existence
and all rights, franchises, licenses and privileges necessary to the conduct of
its business, and qualify and remain qualified as a foreign corporation or other
entity and authorized to do business in each jurisdiction in which the failure
to so qualify would have a Material Adverse Effect.
B. Maintenance of Property. Except for dispositions permitted by
Section 10.6(b) or disuse in the ordinary course of business, protect and
preserve all properties useful in and material to its business, including all
material copyrights, patents, trade names and trademarks and other intellectual
property; maintain in good working order and condition all material buildings,
equipment and other tangible real and personal property; and from time to time
make or cause to be made all renewals, replacements and additions to such
material property necessary for the conduct of its business, so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times.
C. Insurance. Maintain insurance with financially sound and reputable
insurance companies, against such risks and in such amounts as are customarily
maintained by similar businesses and as may be required by Applicable Law, and
on the Closing Date and from time to time thereafter deliver to the
Administrative Agent upon its request a detailed list of the insurance then in
effect, stating the names of the insurance companies, the amounts and rates of
the insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
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D. Accounting Methods and Financial Records. Maintain a system of
accounting, and keep such books, records and accounts (which shall be true and
complete in all material respects) as may be required or as may be necessary to
permit the preparation of financial statements in accordance with GAAP and in
compliance with the regulations of any Governmental Authority having
jurisdiction over it or any of its properties.
E. Payment and Performance of Obligations. Pay and perform all
Obligations under this Agreement and the other Loan Documents, and pay or
perform (a) all taxes, assessments and other governmental charges that may be
levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices; provided, that a Borrower or Subsidiary may contest any item
described in clauses (a) or (b) of this Section 8.5 in good faith so long as
adequate reserves are maintained with respect thereto in accordance with GAAP.
F. Compliance With Laws and Approvals. Observe and remain in compliance
with all Applicable Laws and maintain in full force and effect all Governmental
Approvals, in each case applicable to the conduct of its business, except where
failure to comply or maintain would not reasonably be expected to have a
Material Adverse Effect.
G. Environmental Laws. In addition to and without limiting the
generality of Section 8.6, (a) comply with, and ensure such compliance by all
tenants and subtenants with all applicable Environmental Laws and obtain and
comply with and maintain, and ensure that all tenants and subtenants obtain and
comply with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws, (b) conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws, and
promptly comply with all lawful orders and directives of any Governmental
Authority regarding Environmental Laws except in the case of any of the
foregoing where such non-compliance would not reasonably be expected to have a
Material Adverse Effect, and (c) defend, indemnify and hold harmless the
Administrative Agent and the Lenders, and their respective parents,
Subsidiaries, Affiliates, employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the presence
of Hazardous Materials, or the violation of, noncompliance with or liability
under any Environmental Laws applicable to the operations of any Borrower or
Subsidiary, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any of the foregoing
directly result from the gross negligence or willful misconduct of the party
seeking indemnification therefor.
H. Compliance with ERISA. In addition to and without limiting the
generality of Section 8.6, (a) comply in all material respects with all
applicable provisions of ERISA and the
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regulations and published interpretations thereunder with respect to all
Employee Benefit Plans, (b) not take any action or fail to take action the
result of which could be a material liability to the PBGC or to a Multiemployer
Plan, or incur any material accumulated funding deficiency within the meaning of
ERISA and the regulations promulgated thereunder, (c) do or cause to be done all
such acts and things that are required to maintain the qualified status of each
Employee Benefit Plan intended to be a qualified plan and the tax exempt status
of each trust forming part of such Employee Benefit Plans, (d) operate each
Employee Benefit Plan that is a group health plan as defined in Section
4980B(g)(2) of the Code in such a manner that will not incur material tax
liability under Section 4980B of the Code or material liability to any qualified
beneficiary as defined in Section 4980B of the Code, (e) furnish to the
Administrative Agent upon the Administrative Agent's request such additional
information about any Employee Benefit Plan as may be reasonably requested by
the Administrative Agent, (f) permit any event to occur (i) as described in
Section 4042 of ERISA or (ii) which is likely to result in the imposition of a
lien pursuant to Section 412 of the Code or Section 302 of ERISA, (g) notify
Lenders in writing promptly after it has come to the attention of a Borrower of
the assertion or threat of any "reportable event" for which notice is not waived
or other event described in Section 4042 of ERISA (relating to the soundness of
an Employee Benefit Plan) or the PBGC's ability to assert a material liability
against it which could be reasonably expected to have a Material Adverse Effect
or impose a lien on any Borrower's, Subsidiary's, or ERISA Affiliate's
properties or assets pursuant to Section 412 of the Code or Section 302 of ERISA
and (h) refrain from engaging in any prohibited transactions or actions causing
possible liability under Section 502 of ERISA, except in the case of any of the
foregoing where such non-compliance would not have a Material Adverse Effect.
I. Compliance With Agreements. Comply in all material respects with
each term, condition and provision of all leases, agreements and other
instruments entered into in the conduct of its business including, without
limitation, any Material Contract; provided, that a Borrower or Subsidiary may
contest any such lease, agreement or other instrument in good faith through
applicable proceedings so long as adequate reserves are maintained in accordance
with GAAP; and provided, further, that a Borrower or Subsidiary may renegotiate
the terms or permit the termination of any such lease, agreement or other
instrument.
J. Conduct of Business. Engage only in businesses in substantially the
same fields as the businesses conducted on the Closing Date and in lines of
business reasonably related thereto.
K. Visits and Inspections. Permit representatives of the Lenders from
time to time, upon reasonable prior notice and during normal business hours, to
visit and inspect its properties; audit and make extracts from its books,
records and files, including, but not limited to, management letters prepared by
independent accountants; and discuss with its principal officers, and its
independent accountants, its business, assets, liabilities, financial condition,
results of operations and business prospects.
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L. Additional Subsidiaries. On or prior to the date any Material
Subsidiary of JLG is created or acquired after the Closing Date, such Material
Subsidiary shall execute and deliver to the Administrative Agent, joinder
documents, including without limitation a joinder agreement in the form attached
hereto as Exhibit G, favorable legal opinions addressed to the Administrative
Agent and Lenders, and such other documents and closing certificates as may be
requested by the Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
M. Deposit Account. Maintain a deposit account with Administrative
Agent; provided that a deposit account of JLG shall satisfy this requirement for
all Borrowers and their Subsidiaries.
N. Transactions Among Affiliates. Cause all transactions between and
among Affiliates to be on an arms-length basis and on such terms and conditions
as are customary in the applicable industry between and among unrelated
entities.
O. Year 2000 Compliance. Take all reasonable action necessary to assure
that Borrowers' computer systems and applications, micro-processor based goods
and equipment owned or used by them in their business, and all products sold by
them will be Year 2000 Compliant in a timely manner, except for such failures to
comply as could not reasonably be expected to result in a Material Adverse
Effect; and use reasonable efforts to determine the Year 2000 Compliance of
their material vendors and suppliers or to assure that failures to be Year 2000
Compliant by such vendors and suppliers could not reasonably be expected to have
a Material Adverse Effect. At the request of Lenders, Borrowers shall provide to
Administrative Agent any material increase in the estimated costs to Borrowers
of achieving Year 2000 Compliance in accordance with the program described in
Section 6.1(x), and at the request of Lenders, Borrowers shall provide
additional information as reasonably requested by Lenders regarding their Year
2000 Compliance.
P. Costs and Expenses. Pay or reimburse Administrative Agent for all
reasonable out-of-pocket costs and expenses (including but not limited to
reasonable attorneys' fees and disbursements) Administrative Agent may pay or
incur in connection with the preparation and review of this Agreement and all
waivers, consents and amendments in connection therewith and all other
documentation related thereto, and after a Default or Event of Default, the
collection, administration or enforcement of the same, including without
limitation any fees and disbursements incurred in defense of or to retain
amounts of principal, interest or fees paid. All obligations provided for in
this Section 8.16 shall survive any termination of this Agreement or the
Commitment and the repayment of the Obligations.
Q. Further Assurances. Make, execute and deliver all such additional
and further acts, things, deeds and instruments as the Administrative Agent or
any Lender may reasonably require to document and consummate the transactions
contemplated hereby and to vest completely in and insure the Administrative
Agent and the Lenders their respective rights under this Agreement, the Notes,
the Letters of Credit and the other Loan Documents.
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Section 8.18. Merger. If not completed on the Closing Date, use their
best efforts to effectuate the Merger by September 30, 1999.
IX. FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 13.11 hereof, JLG and its Consolidated Subsidiaries will not:
A. Leverage Ratio. As of any fiscal quarter end, permit the Leverage
Ratio to be greater than 3.0 to 1.0.
B. Interest Coverage Ratio. As of any fiscal quarter end, permit the
Interest Coverage Ratio to be less than 4.0 to 1.0.
C. Minimum Net Worth. (a) As of the Closing Date, permit Net Worth to
be less than the Closing Adjusted Net Worth, and (b) as of the end of each
fiscal quarter ending after the Closing Date, permit Net Worth to be less than
(i) Closing Adjusted Net Worth, plus (ii) fifty percent (50%) of the net income
(as defined in accordance with GAAP) of JLG and its Consolidated Subsidiaries
for each fiscal quarter subsequent to July 31, 1998, without deduction for
losses.
X. NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 13.11 hereof, each Borrower will not and will not permit any of
its Subsidiaries to:
A. Limitations on Debt. Create, incur, assume or suffer to exist any
Debt except:
a. the Obligations;
b. Debt incurred in connection with a Hedging Agreement with a
counterparty and upon terms and conditions (including interest rate) reasonably
satisfactory to the Administrative Agent.
c. Subordinated Debt;
d. Debt existing on the Closing Date and not otherwise
permitted under this Section 10.1, as set forth on Schedule 6.1(t) and the
renewal and refinancing (but not the increase of the aggregate principal amount
thereof) thereof;
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e. Debt of Subsidiaries that are not Borrowers, and guarantees
of such Debt by one or more Borrowers, provided that such Debt shall not exceed,
in the aggregate for all Subsidiaries, Five Million Dollars ($5,000,000);
f. so long as the aggregate principal amount outstanding at
any time does not collectively exceed twenty percent (20%) of Net Worth: (i)
Debt of the Borrowers and their Subsidiaries incurred in connection with
Capitalized Leases; (ii) purchase money Debt of the Borrowers and their
Subsidiaries; and (iii) indebtedness of the Borrowers and their Subsidiaries
incurred in connection with Operating Leases, the amount of which Operating
Leases shall be determined by their respective Operating Lease Values;
g. the PIDA Debt, in an aggregate principal amount not to
exceed $3,615,198 on any date of determination;
h. the Overdraft Facility Debt, in an aggregate principal
amount not to exceed $20,000,000 on any date of determination;
i. Debt by and among the Borrowers and the Subsidiaries;
provided however that Debt of Borrowers to all non-Borrower Subsidiaries shall
not exceed twenty percent (20%) of Net Worth of JLG and its Subsidiaries on a
consolidated basis (as set forth on the most recently delivered financial
statements by Borrowers to the Lenders) at any time outstanding; and
j. Guaranty Obligations of Debt permitted under clauses (a)
through (i), but not clause (c), of this Section 10.1 and under Section 10.2;
provided, that no agreement or instrument with respect to Debt permitted to be
incurred by this Section shall restrict, limit or otherwise encumber (by
covenant or otherwise) the ability of any Subsidiary of any Borrower to make any
payment to any Borrower or any of their Subsidiaries (in the form of dividends,
intercompany advances or otherwise) for the purpose of enabling the Borrowers to
pay the Obligations.
B. Limitations on Guaranty Obligations. Create, incur, assume or suffer
to exist any Guaranty Obligations, except:
a. Guaranty Obligations in favor of the Administrative Agent
for the benefit of the Administrative Agent and the Lenders;
b. Guaranty Obligations permitted under Section 10.1(j);
c. Guaranty Obligations incurred by any Borrower or Subsidiary
in connection with Debt of a Subsidiary pursuant to Subsection 10.1(e) hereof;
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d. existing Guaranty Obligations described on Schedule 6.1(t);
and
e. Guaranty Obligations permitted by Section 10.4(d).
C. Limitations on Liens. Create, incur, assume or suffer to exist, any
Lien on or with respect to any of its assets or properties (including without
limitation shares of capital stock or other ownership interests), real or
personal, whether now owned or hereafter acquired, except:
a. Liens for taxes, assessments and other governmental charges
or levies not yet due or as to which the period of grace (not to exceed thirty
(30) days), if any, related thereto has not expired or which are being contested
in good faith and by appropriate proceedings if adequate reserves are maintained
to the extent required by GAAP;
b. the claims of materialmen, mechanics, carriers,
warehousemen, processors or landlords for labor, materials, supplies or rentals
incurred in the ordinary course of business, (i) which are not overdue for a
period of more than thirty (30) days or (ii) which are being contested in good
faith and by appropriate proceedings;
c. Liens consisting of deposits or pledges made in the
ordinary course of business in connection with, or to secure payment of,
obligations under workers' compensation, unemployment insurance or similar
legislation or obligations under customer service contracts;
d. Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, detract from the value of such property or impair the use thereof
in the ordinary conduct of business;
e. Liens not otherwise permitted by this Section 10.3 and in
existence on the Closing Date and described on Schedule 10.3; and
f. Liens securing Debt permitted under Section 10.1(f);
provided that (i) such Liens shall be created substantially simultaneously with
the acquisition of the related asset, (ii) such Liens do not at any time
encumber any property other than the property financed by such Debt, (iii) the
amount of Debt secured thereby is not increased and (iv) the principal amount of
Debt secured by any such Lien shall at no time exceed one hundred percent (100%)
of the original purchase price of such property at the time it was acquired.
The restrictions of this Section 10.3 shall not extend to the shares of stock of
Gradall acquired pursuant to the Tender Offer, to the extent that such
application would result in a violation of Regulation U of the Board of
Governors of the Federal Reserve System.
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D. Limitations on Loans, Advances, Investments and Acquisitions.
Purchase, own, invest in or otherwise acquire, directly or indirectly, any
capital stock, interests in any partnership or joint venture (including without
limitation the creation or capitalization of any Subsidiary), evidence of Debt
or other obligation or security, substantially all or a portion of the business
or assets of any other Person or any other investment or interest whatsoever in
any other Person, or make or permit to exist, directly or indirectly, any loans,
advances or extensions of credit to, or any investment in cash or by delivery of
property in, any Person except:
a. loans to wholly-owned Subsidiaries and investments in
wholly-owned Subsidiaries not otherwise permitted by this Section 10.4; provided
however that loans and advances to all non-Borrower Subsidiaries from Borrowers
shall not exceed twenty percent (20%) of Net Worth of JLG and its Subsidiaries
on a Consolidated basis (as set forth on the most recently delivered financial
statements by Borrowers to the Lenders) at any time outstanding; and the other
existing loans, advances and investments not otherwise permitted by this Section
10.4 described on Schedule 10.4;
b. investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within 120 days from the date of acquisition thereof, (ii) commercial
paper maturing no more than 120 days from the date of creation thereof and
currently having the highest rating obtainable from either Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, Inc. or Moody s
Investors Service, Inc., (iii) certificates of deposit maturing no more than 120
days from the date of creation thereof issued by commercial banks incorporated
under the laws of the United States of America, each having combined capital,
surplus and undivided profits of not less than $500,000,000 and having a rating
of A or better by a nationally recognized rating agency; provided, that the
aggregate amount invested in such certificates of deposit shall not at any time
exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for
any one such bank, (iv) time deposits maturing no more than 30 days from the
date of creation thereof with commercial banks or savings banks or savings and
loan associations each having membership either in the FDIC or the deposits of
which are insured by the FDIC and in amounts not exceeding the maximum amounts
of insurance thereunder, (v) United States Treasury Department securities, (vi)
banker's acceptances, (vii) corporate debt instruments having a rating of A or
better by a nationally recognized rating agency, (viii) repurchase agreements
that are secured by collateral having a value of 102% of such repurchase
agreement, where such collateral is held by a third party custodian or (ix)
money market funds;
c. investments by a Borrower or any Subsidiary in the form of
acquisitions of all or substantially all of the business or a line of business
(whether by the acquisition of capital stock, assets or any combination thereof)
of any other Person, provided, that: (i) in the case of any acquisition with
respect to which the purchase price to be paid by the Borrower or Subsidiary is
in excess of $20,000,000, at least ten (10) Business Days prior to the
consummation of such acquisition, the Borrowers deliver to Administrative Agent
one (1) year of historical financial
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information for the entity to be acquired and an Officer's Compliance
Certificate signed by a Responsible Officer setting forth the calculation of the
covenants set forth in Article IX on a pro forma basis for the combined group as
of the consummation of the acquisition and on a projected basis as of the fiscal
year end following the acquisition; (ii) there is no Event of Default or Default
hereunder at the time of such acquisition or investment or which would be caused
by such acquisition or investment; and (iii) such business or line of business
is the same or substantially similar to that of a Borrower's or a Subsidiary's
existing line of business; and
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 incur Guaranty Obligations with
respect to obligations of such customers, in order to facilitate sales of goods
or services to such customers.
E. Limitations on Mergers and Liquidation. Merge, consolidate or enter
into any similar combination with any other Person or liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution) except:
a. any Wholly-Owned Subsidiary of a Borrower may merge with
any other Wholly-Owned Subsidiary of a Borrower;
b. any Wholly-Owned Subsidiary may merge into the Person such
Wholly-Owned Subsidiary was formed to acquire in connection with an acquisition
permitted by Section 10.4(c);
c. any Wholly-Owned Subsidiary of a Borrower may wind-up into
a Borrower or any other Wholly-Owned Subsidiary of a Borrower; and
d. the Merger.
F. Limitations on Sale of Assets. Convey, sell, lease, assign, transfer
or otherwise dispose of any of its property, business or assets (including,
without limitation, the sale of any receivables and leasehold interests and any
sale-leaseback or similar transaction), whether now owned or hereafter acquired
except:
a. the sale of inventory in the ordinary course of business;
b. the sale in the ordinary course of business of assets no
longer used or usable in the business of a Borrower or any Subsidiary;
c. the transfer of assets to a Borrower or any Wholly-Owned
Subsidiary of a Borrower;
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d. the sale or discount without recourse of accounts
receivable which: (i) have aged or have a due date at least thirty (30) days
from the date of invoice; (ii) arose in the ordinary course of business and
(iii) do not exceed, in the aggregate outstanding at any time, One Hundred
Million Dollars ($100,000,000) in face value ("outstanding" being, for purposes
of this clause, those sold or discounted accounts receivable which are by their
terms not due);
e. leases of equipment, having a term of less than twelve (12)
months from the date of inception thereof, in the ordinary course of business,
on terms pursuant to which the leased equipment remains (for tax and accounting
purposes) an asset of a Borrower or a Subsidiary; and
f. leases of equipment by a Borrower or Subsidiary in the
ordinary course of business where:
(1) such leases are not permitted by Subsection
10.6(e) hereof; and
(2) the value of the leases reflected on JLG and its
Subsidiaries consolidated financial statements does not exceed One Hundred
Million Dollars ($100,000,000) at any time; provided, however, that a lease
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.
g. The restrictions of this Section 10.6 shall not extend to
the shares of stock of Gradall acquired pursuant to the Tender Offer to the
extent that such application would result in a violation of Regulation U of the
Board of Governors of the Federal Reserve System.
G. Limitations on Stock Transactions. (i) Purchase, redeem, retire or
otherwise acquire, directly or indirectly, any shares of its capital stock other
than, in the absence of a Default or Event of Default, the purchase of up to one
percent (1%) of its outstanding shares on an annual basis; (ii) make any
distribution of cash, property or assets among the holders of shares of its
capital stock other than, in the absence of a Default or Event of Default, the
payment of regular dividends in accordance with reasonable business practice in
the good faith judgment of the board of directors of a Borrower; or (iii) make
any change in its capital structure, other than: (a) an increase in the number
of authorized shares of common stock and the corresponding issuance of such
authorized shares of common stock or (b) the implementation of a customary form
of shareholder rights plan.
H. Limitations on Exchange and Issuance of Capital Stock. Issue, sell
or otherwise dispose of any class or series of capital stock that, by its terms
or by the terms of any security into which it is convertible or exchangeable,
is, or upon the happening of an event or passage of time would be, (a)
convertible or exchangeable into Debt or (b) required to be redeemed or
repurchased,
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including at the option of the holder, in whole or in part, or has, or upon the
happening of an event or passage of time would have, a redemption or similar
payment due.
I. Certain Accounting Changes. Change its Fiscal Year end, or make any
change in its accounting treatment and reporting practices except as permitted
by GAAP, subject to Section 1.3(b) hereof.
J. Amendments; Payments and Prepayments of Subordinated Debt. (i)Cancel
or forgive, make any voluntary or optional payment or prepayment on, or redeem
or acquire for value (including without limitation by way of depositing with any
trustee with respect thereto money or securities before due for the purpose of
paying when due) any Subordinated Debt or (ii) amend or agree to any amendment
to or waiver under the Merger Agreement.
K. Restrictive Agreements. Enter into any Debt which contains any
negative pledge on assets or any covenants more restrictive than the provisions
of Articles VIII, IX and X hereof, or which restricts, limits or otherwise
encumbers its ability to incur Liens on or with respect to any of its assets or
properties other than the assets or properties securing such Debt.
L. Use of Proceeds. Engage as its principal business in the extension
of credit to purchase or carry margin securities within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System.
XI. DEFAULT AND REMEDIES
A. Events of Default. Each of the following shall constitute an Event
of Default, whatever the reason for such event and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment or
order of any court or any order, rule or regulation of any Governmental
Authority or otherwise:
a. Default in Payment of Principal of Loans and Reimbursement
Obligations. The Borrowers shall default in any payment of principal of any
Loan, Note or Reimbursement Obligation when and as due (whether at maturity, by
reason of acceleration or otherwise).
b. Other Payment Default. The Borrowers shall default in the
payment when and as due (whether at maturity, by reason of acceleration or
otherwise) of (i) interest on any Loan, Note or Reimbursement Obligation and
such default shall remain uncured for a period of three (3) Business Days after
the scheduled date of payment of such interest or (ii) any other Obligation
(including without limitation any fees due to Administrative Agent or Lenders
hereunder) and such default shall remain uncured for a period of three (3)
Business Days following notice by the Administrative Agent.
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c. Misrepresentation. Any representation or warranty made or
deemed to be made in accordance with the terms hereof by any Borrower or any
Subsidiary under this Agreement, any Loan Document or any amendment hereto or
thereto, shall at any time prove to have been incorrect or misleading in any
material respect when made or deemed made.
d. Default in Performance of Certain Covenants. Any Borrower
shall default in the performance or observance of any covenant or agreement
contained in: (i) Sections 7.1, 7.2 or 7.5(e) of this Agreement, and such
default shall remain uncured for a period of five (5) Business Days following
the due date of each delivery thereunder, or (ii) Articles IX or X of this
Agreement.
e. Default in Performance of Other Covenants and Conditions.
Any Borrower or any Subsidiary thereof shall default in the performance or
observance of any term, covenant, condition or agreement contained in this
Agreement (other than as specifically provided for otherwise in this Section
11.1) or any other Loan Document and such default shall continue for a period of
thirty (30) days after written notice thereof has been given to the Borrowers by
the Administrative Agent.
f. Hedging Agreement. Any termination payment shall be due by
the Borrowers under any Hedging Agreement and such amount is not paid within
thirty (30) Business Days of the due date thereof.
g. Debt Cross-Default. Any Borrower or any Subsidiary shall
(i) default in the payment of any Debt (other than the Notes or any
Reimbursement Obligation) the aggregate outstanding amount of which Debt is in
excess of $10,000,000 beyond the period of grace if any, provided in the
instrument or agreement under which such Debt was created, or (ii) default in
the observance or performance of any other agreement or condition relating to
any Debt (other than the Notes or any Reimbursement Obligation) the aggregate
outstanding amount of which Debt is in excess of $10,000,000 or contained in any
instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such Debt (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required any such Debt to become due prior to its stated maturity
(any applicable grace period having expired).
h. Other Cross-Defaults. Any Borrower or any Subsidiary shall
default in the payment when due, or in the performance or observance, of any
material obligation or condition of any Material Contract unless, but only as
long as, the existence of any such default is being contested by such Borrower
or Subsidiary in good faith by appropriate proceedings and adequate reserves in
respect thereof have been established on the books of such Borrower or
Subsidiary to the extent required by GAAP; and provided that such default shall
remain uncured for a period of thirty (30) days following notice by the
Administrative Agent.
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i. Change in Control. (i) Any person or group of persons
(within the meaning of Section 13(d) of the 1934 Act), shall obtain ownership or
control in one or more series of transactions of more than twenty percent (20%)
of the common stock or twenty percent (20%) of the voting power of JLG entitled
to vote in the election of members of the board of directors of JLG, or there
shall have occurred under any indenture or other instrument evidencing any Debt
in excess of $5,000,000 any change in control (as defined in such indenture or
other evidence of Debt) obligating a Borrower to repurchase, redeem or repay all
or any part of the Debt or capital stock provided for therein (any such event, a
"Change in Control").
j. Voluntary Bankruptcy Proceeding. Any Borrower or any
Subsidiary thereof shall (i) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect), (ii) file a petition seeking to
take advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of debts,
(iii) consent to or fail to contest in a timely and appropriate manner any
petition filed against it in an involuntary case under such bankruptcy laws or
other laws, (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its property, domestic or foreign, (v) admit in writing its inability to pay
its debts as they become due, (vi) make a general assignment for the benefit of
creditors, or (vii) take any corporate action, including without limitation by
the adoption by its board of directors or other governing body of any
resolution, for the purpose of authorizing any of the foregoing.
k. Involuntary Bankruptcy Proceeding. A case or other
proceeding shall be commenced against any Borrower or any Subsidiary thereof in
any court of competent jurisdiction seeking (i) relief under the federal
bankruptcy laws (as now or hereafter in effect) or under any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding
up or adjustment of debts, or (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like for such Borrower or any Subsidiary thereof or
for all or any substantial part of their respective assets, domestic or foreign,
and such case or proceeding shall continue without dismissal or stay for a
period of sixty (60) consecutive days, or an order granting the relief requested
in such case or proceeding (including, but not limited to, an order for relief
under such federal bankruptcy laws) shall be entered.
l. Failure of Agreements. Any provision of this Agreement or
of any other Loan Document shall for any reason cease to be valid and binding on
any Borrower or Subsidiary party thereto or any such Person shall so state in
writing, other than in accordance with the express terms hereof or thereof.
m. Termination Event. The occurrence of any of the following
events: (i) the Borrower or any ERISA Affiliate fails to make full payment when
due of all amounts which, under the provisions of any Pension Plan or Section
412 of the Code, such Borrower or ERISA Affiliate is required to pay as
contributions thereto, (ii) an accumulated funding deficiency in excess
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of $5,000,000 occurs or exists, whether or not waived, with respect to any
Pension Plan, (iii) a Termination Event which could reasonably be expected to
have a Material Adverse Effect or (iv) any Borrower or any ERISA Affiliate as
employers under one or more Multiemployer Plan makes a complete or partial
withdrawal from any such Multiemployer Plan and the plan sponsor of such
Multiemployer Plans notifies such withdrawing employer that such employer has
incurred a withdrawal liability requiring payments in an amount exceeding
$5,000,000.
n. Judgment. A judgment or order for the payment of money
which causes the aggregate amount of all such judgments to exceed $5,000,000 in
any Fiscal Year shall be entered against any Borrower or any Subsidiary by any
court and such judgment or order shall continue without discharge or stay for a
period of thirty (30) days.
o. Custody and Control. If custody or control of any
substantial part of the property of any Borrower or any Subsidiary shall be
assumed by any governmental agency or any court of competent jurisdiction at the
instance of any governmental agency; if any material license or franchise shall
be suspended, revoked or otherwise terminated; if any Borrower or any Subsidiary
is required by any franchising authority or by court order or administrative
order to halt construction or operations under any license or franchise and such
action shall continue uncorrected for ninety (90) days after such Borrower or
Subsidiary has received notice thereof; or if any governmental regulatory
authority or judicial body shall make any other final non-appealable
determination and the effect of any of the foregoing, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
p. Environmental Laws. If any event or condition shall occur
or exist on any property owned, leased or operated by any Borrower or Subsidiary
in violation of any Environmental Law and as a result of such event or
condition, Borrowers and their Subsidiaries have incurred or in the reasonable
opinion of the Lenders are reasonably likely to incur a liability in excess of
$5,000,000 during any consecutive twelve (12) month period.
B. Remedies. Upon the occurrence of an Event of Default, with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower:
a. Acceleration; Termination of Facilities. Declare the
principal of and interest on the Loans, the Notes and the Reimbursement
Obligations at the time outstanding, and all other amounts owed to the Lenders
and to the Administrative Agent under this Agreement or any of the other Loan
Documents (including, without limitation, all L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) and all other Obligations (other than
obligations owing under any Hedging Agreement), to be forthwith due and payable,
whereupon the same shall immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which are expressly waived,
anything in this Agreement or the other Loan Documents to the contrary
notwithstanding, and
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terminate the Credit Facility and any right of the Borrowers to request
borrowings or Letters of Credit thereunder; provided, that upon the occurrence
of an Event of Default specified in Section 11.1(j) or (k), the Credit Facility
shall be automatically terminated and all Obligations (other than obligations
owing under any Hedging Agreement) shall automatically become due and payable.
b. Letters of Credit. With respect to all Letters of Credit
with respect to which presentment for honor shall not have occurred at the time
of an acceleration pursuant to the preceding paragraph, require the Borrowers at
such time to deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay the
other Obligations. After all such Letters of Credit shall have expired or been
fully drawn upon, the Reimbursement Obligation shall have been satisfied and all
other Obligations shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Borrowers.
c. Rights of Collection. Exercise on behalf of the Lenders all
of its other rights and remedies under this Agreement, the other Loan Documents
and Applicable Law, in order to satisfy all of the Borrowers' Obligations.
C. Rights and Remedies Cumulative; Non-Waiver, etc. The enumeration of
the rights and remedies of the Administrative Agent and the Lenders set forth in
this Agreement is not intended to be exhaustive and the exercise by the
Administrative Agent and the Lenders of any right or remedy shall not preclude
the exercise of any other rights or remedies, all of which shall be cumulative,
and shall be in addition to any other right or remedy given hereunder or under
the Loan Documents or that may now or hereafter exist in law or in equity or by
suit or otherwise. No delay or failure to take action on the part of the
Administrative Agent or any Lender in exercising any right, power or privilege
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or privilege preclude other or further exercise thereof or
the exercise of any other right, power or privilege or shall be construed to be
a waiver of any Event of Default. No course of dealing between the Borrowers,
the Administrative Agent and the Lenders or their respective agents or employees
shall be effective to change, modify or discharge any provision of this
Agreement or any of the other Loan Documents or to constitute a waiver of any
Event of Default.
XII. THE ADMINISTRATIVE AGENT
A. Appointment. Each of the Lenders hereby irrevocably designates and
appoints First Union as Administrative Agent of such Lender under this Agreement
and the other Loan Documents for the term hereof, and each such Lender
irrevocably authorizes First Union, as Administrative Agent for such Lender, to
take such action on its behalf under the provisions of this Agreement and
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the other Loan Documents and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent by the terms of this
Agreement and such other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement or such other Loan Documents, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein and therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or the other Loan Documents or
otherwise exist against the Administrative Agent. Any reference to the
Administrative Agent in this Article XII shall be deemed to refer to the
Administrative Agent solely in its capacity as Administrative Agent and not in
its capacity as a Lender.
B. Delegation of Duties. The Administrative Agent may execute any of
its respective duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact (other than the Administrative Agent's employees) selected by
the Administrative Agent with reasonable care.
C. Exculpatory Provisions. Neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or the
other Loan Documents (except for actions occasioned solely by its or such
Person's own gross negligence or willful misconduct), or (b) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by the Borrowers or any of their Subsidiaries or any officer
thereof contained in this Agreement or the other Loan Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or the other Loan Documents or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or the other Loan
Documents or for any failure of the Borrowers or any of their Subsidiaries to
perform its obligations hereunder or thereunder. The Administrative Agent shall
not be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of the
Borrowers or any of their Subsidiaries.
D. Reliance by the Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrowers), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless such Note shall have been
transferred in
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accordance with Section 13.10 hereof. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement and the
other Loan Documents unless it shall first receive such advice or concurrence of
the Required Lenders (or, when expressly required hereby or by the relevant
other Loan Document, all the Lenders) as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action except for its own gross negligence or willful misconduct.
The Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the Notes in accordance with a
request of the Required Lenders (or, when expressly required hereby, all the
Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Notes.
E. Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless it has received notice from a Lender or the Borrowers referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default." In the event that the Administrative Agent
receives such a notice, it shall promptly give notice thereof to the Lenders.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders;
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders, except to the extent that other provisions of this Agreement expressly
require that any such action be taken or not be taken only with the consent and
authorization or the request of the Lenders or Required Lenders, as applicable.
F. Non-Reliance on the Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its respective officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates has made any representations or warranties to it and
that no act by the Administrative Agent hereinafter taken, including any review
of the affairs of the Borrowers or any of their Subsidiaries, shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers and their
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Subsidiaries and made its own decision to make its Loans and issue or
participate in Letters of Credit hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers and their
Subsidiaries. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder or by the
other Loan Documents, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrowers or any of their Subsidiaries which may come
into the possession of the Administrative Agent or any of its respective
officers, directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates.
G. Indemnification. The Lenders agree to indemnify the Administrative
Agent in its capacity as such and (to the extent not reimbursed by the Borrowers
and without limiting the obligation of the Borrowers to do so), ratably
according to the respective amounts of their Commitment Percentages, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Notes or any Reimbursement Obligation) be imposed
on, incurred by or asserted against the Administrative Agent in any way relating
to or arising out of this Agreement or the other Loan Documents, or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's bad faith, gross negligence or willful misconduct. The agreements in
this Section 12.7 shall survive the payment of the Notes, any Reimbursement
Obligation and all other amounts payable hereunder and the termination of this
Agreement.
H. The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its respective Subsidiaries and Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrowers as though the Administrative Agent were not an Administrative
Agent hereunder. With respect to any Loans made or renewed by it and any Note
issued to it and with respect to any Letter of Credit issued by it or
participated in by it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not an Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in its individual
capacity.
I. Resignation of the Administrative Agent; Successor Administrative
Agent. Subject to the appointment and acceptance of a successor as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Borrowers. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Administrative Agent, which
successor shall be a financial institution chartered under the laws of the
United States of America or a state or commonwealth thereof and have minimum
capital and surplus of at least $500,000,000. If no successor Administrative
Agent shall have been so appointed by the Required
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Lenders and shall have accepted such appointment within thirty (30) days after
the Administrative Agent's giving of notice of resignation, then the
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which successor shall be a financial institution chartered
under the laws of the United States of America or a state or commonwealth
thereof and have minimum capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section 12.9 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
XIII. MISCELLANEOUS
A. Notices.
a. Method of Communication. Except as otherwise provided in
this Agreement, all notices and communications hereunder shall be in writing, or
by telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of failure to receive a
confirming written notice.
b. Addresses for Notices. Notices to any party shall be sent
to it at the following addresses, or any other address as to which all the other
parties are notified in writing.
If to the Borrowers:
JLG Industries, Inc.
1 JLG Drive
McConnellsburg, PA 17233-9533
Attention: Charles H. Diller, Jr.
Executive Vice President and
Chief Financial Officer
Telephone No.: (717) 485-5161
Telecopy No.: (717) 485-6462
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With copies to:
Covington and Burling
1201 Pennsylvania Avenue, N.W.
Washington, DC 20044-7566
Attention: W. Andrew Jack, Esquire
Telephone No.: (202) 662-5232
Telecopy No.: (202) 662-6291
If to First Union as
Administrative Agent: First Union National Bank
One First Union Center, TW-10
301 South College Street
Charlotte, NC 28288-0608
Attention: Syndication Agency Services
Telephone No.: (704) 374-2698
Telecopy No.: (704) 383-0288
With copies to: First Union National Bank
One South Penn Square
Philadelphia, PA 19107
Attention: Joan Anderson
Telephone No.: (215) 973-8376
Telecopy No.: (215) 786-2877
and
Pepper Hamilton LLP
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103-2799
Attention: Lisa D. Kabnick, Esquire
Telephone No.: (215) 981-4814
Telecopy No.: (215) 981-4750
If to any Lender: To the Address set forth on Schedule 2 hereto
c. Administrative Agent's Office. The Administrative Agent
hereby designates its office located at the address set forth above, or any
subsequent office which shall have been specified for such purpose by written
notice to the Borrowers and Lenders, as the Administrative Agent's Office
referred to herein, to which payments due are to be made and at which Loans will
be disbursed and Letters of Credit issued.
B. Expenses; Indemnity. The Borrowers will (a) pay all reasonable
out-of-pocket expenses of the Administrative Agent in connection with (i) the
preparation, execution and delivery
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of this Agreement and each other Loan Document, whenever the same shall be
executed and delivered, including without limitation all reasonable
out-of-pocket syndication and due diligence expenses and reasonable fees and
disbursements of counsel for the Administrative Agent and (ii) the preparation,
execution and delivery of any waiver, amendment or consent by the Administrative
Agent or the Lenders relating to this Agreement or any other Loan Document,
including without limitation reasonable fees and disbursements of counsel for
the Administrative Agent, (b) pay all reasonable out-of-pocket expenses of the
Administrative Agent and each Lender actually incurred in connection with the
administration and enforcement of any rights and remedies of the Administrative
Agent and Lenders under the Credit Facility, including consulting with
appraisers, accountants, engineers, attorneys and other Persons concerning the
nature, scope or value of any right or remedy of the Administrative Agent or any
Lender hereunder or under any other Loan Document or any factual matters in
connection therewith, which expenses shall include without limitation the
reasonable fees and disbursements of such Persons, and (c) defend, indemnify and
hold harmless the Administrative Agent and the Lenders, and their respective
parents, Subsidiaries, Affiliates, employees, agents, officers and directors,
from and against any losses, penalties, fines, liabilities, settlements,
damages, costs and expenses, suffered by any such Person in connection with any
claim, investigation, litigation or other proceeding (whether or not the
Administrative Agent or any Lender is a party thereto) and the prosecution and
defense thereof, arising out of or in any way connected with the Agreement, any
other Loan Document or the Loans or the transactions contemplated hereby,
including without limitation reasonable attorney's and consultant's fees, except
to the extent that any of the foregoing directly result from the gross
negligence or willful misconduct of the party seeking indemnification therefor.
C. Set-off. In addition to any rights now or hereafter granted under
Applicable Law and not by way of limitation of any such rights, upon and after
the occurrence of any Event of Default and during the continuance thereof, the
Lenders and any assignee or participant of a Lender in accordance with Section
13.10 are hereby authorized by the Borrowers at any time or from time to time,
without notice to the Borrowers or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, time or demand, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether matured or unmatured)
and any other indebtedness at any time held or owing by the Lenders, or any such
assignee or participant to or for the credit or the account of any Borrower
against and on account of the Obligations irrespective of whether or not (a) the
Lenders shall have made any demand under this Agreement or any of the other Loan
Documents or (b) the Administrative Agent shall have declared any or all of the
Obligations to be due and payable as permitted by Section 11.2 and although such
Obligations shall be contingent or unmatured.
D. Governing Law. This Agreement, the Notes and the other Loan
Documents, unless otherwise expressly set forth therein, shall be governed by,
construed and enforced in accordance with the laws of the Commonwealth of
Pennsylvania, without reference to the conflicts or choice of law principles
thereof.
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E. Consent to Jurisdiction. The Borrowers hereby irrevocably consent to
the personal jurisdiction of the state and federal courts located in
Philadelphia County, Pennsylvania, in any action, claim or other proceeding
arising out of any dispute in connection with this Agreement, the Notes and the
other Loan Documents, any rights or obligations hereunder or thereunder, or the
performance of such rights and obligations. The Borrowers hereby irrevocably
consent to the service of a summons and complaint and other process in any
action, claim or proceeding brought by the Administrative Agent or any Lender in
connection with this Agreement, the Notes or the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such rights
and obligations, on behalf of itself or its property, in the manner specified in
Section 13.1. Nothing in this Section 13.5 shall affect the right of the
Administrative Agent or any Lender to serve legal process in any other manner
permitted by Applicable Law or affect the right of the Administrative Agent or
any Lender to bring any action or proceeding against the Borrowers or their
properties in the courts of any other jurisdictions.
F. Waiver of Jury Trial.
a. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR THE NOTES OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY LENDER
OR ADMINISTRATIVE AGENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH
LENDER'S ENTERING INTO THIS AGREEMENT.
b. Preservation of Certain Remedies. The parties hereto and
the other Loan Documents preserve, without diminution, certain remedies that
such Persons may employ or exercise freely, either alone, in conjunction with or
during a dispute. Each such Person shall have and hereby reserves the right to
proceed in any court of proper jurisdiction or by self help to exercise or
prosecute the following remedies: (i) all rights to foreclose against any real
or personal property or other security by exercising a power of sale granted in
the Loan Documents or under applicable law or by judicial foreclosure and sale,
(ii) all rights of self help including peaceful occupation of property and
collection of rents, set off, and peaceful possession of property, (iii)
obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and in filing an
involuntary bankruptcy proceeding, and (iv) when applicable, a judgment by
confession of judgment.
G. Reversal of Payments. To the extent a Borrower makes a payment or
payments to the Administrative Agent for the ratable benefit of the Lenders or
the Administrative Agent receives any payment or proceeds of the collateral
which payments or proceeds or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law, state
or federal law,
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common law or equitable cause, then, to the extent of such payment or proceeds
repaid, the Obligations or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if such payment or proceeds
had not been received by the Administrative Agent.
H. Injunctive Relief; Punitive Damages.
a. Each Borrower recognizes that, in the event such Borrower
fails to perform, observe or discharge any of its obligations or liabilities
under this Agreement, any remedy of law may prove to be inadequate relief to the
Lenders. Therefore, each Borrower agrees that the Lenders, at the Lender's
option, shall be entitled to temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages.
b. The Administrative Agent, Lenders and Borrowers (on behalf
of themselves and their Subsidiaries) hereby agree that no such Person shall
have a remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any dispute, whether such dispute is resolved through
arbitration or judicially.
I. Accounting Matters. All financial and accounting calculations,
measurements and computations made for any purpose relating to this Agreement,
including, without limitation, all computations utilized by any Borrower or any
Subsidiary thereof to determine compliance with any covenant contained herein,
shall, except as otherwise expressly contemplated hereby or unless there is an
express written direction by the Administrative Agent to the contrary agreed to
by a Borrower, be performed in accordance with GAAP.
J. Successors and Assigns; Participations.
a. Benefit of Agreement. This Agreement shall be binding upon
and inure to the benefit of the Borrowers, the Administrative Agent and the
Lenders, all future holders of the Notes, and their respective successors and
assigns, except that the Borrowers shall not assign or transfer any of their
rights or obligations under this Agreement without the prior written consent of
each Lender.
b. Assignment by Lenders. Each Lender may, with the consent of
the Borrowers (so long as no Default or Event of Default has occurred and is
continuing) and the consent of the Administrative Agent, which consents shall
not be unreasonably withheld, assign to one or more Eligible Assignees all or a
portion of its interests, rights and obligations under this Agreement
(including, without limitation, all or a portion of the Extensions of Credit at
the time owing to it and the Notes held by it); provided that:
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(1) each such assignment shall be of a constant, and
not a varying, percentage of all the assigning Lender s rights and obligations
under this Agreement;
(2) if less than all of the assigning Lender's
Commitment is to be assigned, the Commitment so assigned shall not be less than
$5,000,000.
(3) the parties to each such assignment shall execute
and deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance in the form of Exhibit H attached hereto
(an Assignment and Acceptance ), together with any Note or Notes subject to such
assignment;
(4) such assignment shall not, without the consent of
the Borrowers, require the Borrowers to file a registration statement with the
Securities and Exchange Commission or apply to or qualify the Loans or the Notes
under the blue sky laws of any state; and
(5) the assigning Lender shall pay to the
Administrative Agent an assignment fee of $3,000 upon the execution by such
Lender of the Assignment and Acceptance; provided that no such fee shall be
payable (i) upon any assignment by a Lender to an Affiliate thereof and (ii)
with respect to any assignment made prior to June 24, 1999.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
c. Rights and Duties Upon Assignment. By executing and
delivering an Assignment and Acceptance, the assigning Lender thereunder and the
assignee thereunder confirm to and agree with each other and the other parties
hereto as set forth in such Assignment and Acceptance.
d. Register. The Administrative Agent shall maintain a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders and the amount of the
Extensions of Credit with respect to each Lender from time to time (the Register
). The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrowers, the Administrative Agent and the Lenders may treat
each person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrowers or Lenders at any reasonable time and from time to time upon
reasonable prior notice.
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e. Issuance of New Notes. Upon its receipt of an Assignment
and Acceptance executed by an assigning Lender and an Eligible Assignee together
with any Note or Notes subject to such assignment and the written consent to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of Exhibit H:
(1) accept such Assignment and Acceptance;
(2) record the information contained therein in the
Register;
(3) give prompt notice thereof to the Lenders and the
Borrowers; and
(4) promptly deliver a copy of such Assignment and
Acceptance to the Borrowers.
Within five (5) Business Days after receipt of notice, the Borrowers shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes, a new Note or Notes to the order of such Eligible Assignee in
amounts equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and a new Note or Notes to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Notes delivered to the assigning Lender. Each surrendered Note
or Notes shall be canceled and returned to the Borrowers.
K. Participations. Each Lender may sell participations to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Extensions of Credit and the Notes held by it); provided that:
a. each such participation shall be in an amount not less than
$5,000,000;
b. such Lender's obligations under this Agreement (including,
without limitation, its Commitment) shall remain unchanged;
c. such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
d. such Lender shall remain the holder of the Notes held by it
for all purposes of this Agreement;
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e. the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement;
f. such Lender shall not permit such participant the right to
approve any waivers, amendments or other modifications to this Agreement or any
other Loan Document other than waivers, amendments or modifications which would
reduce the principal of or the interest rate on any Loan or Reimbursement
Obligation, extend the term or increase the amount of the Commitment, reduce the
amount of any fees to which such participant is entitled, and extend any
scheduled payment date for principal of any Loan; and
g. any such disposition shall not, without the consent of the
Borrowers, require the Borrowers to file a registration statement with the
Securities and Exchange Commission to apply to qualify the Loans or the Notes
under the blue sky law of any state.
L. Disclosure of Information; Confidentiality. The Administrative
Agent and the Lenders shall hold all non-public information with respect to the
Borrowers obtained pursuant to the Loan Documents in accordance with their
customary procedures for handling confidential information; provided, that the
Administrative Agent may disclose information relating to this Agreement to Gold
Sheets and other similar bank trade publications, such information to consist of
deal terms and other information customarily found in such publications and
provided further, that the Administrative Agent and Lenders may disclose any
such information to the extent such disclosure is required by law. Any Lender
may, in connection with any assignment, proposed assignment, participation or
proposed participation pursuant to this Section 13.10, disclose to the assignee,
participant, proposed assignee or proposed participant, any information relating
to the Borrowers furnished to such Lender by or on behalf of the Borrowers;
provided, that prior to any such disclosure, each such assignee, proposed
assignee, participant or proposed participant shall agree with the Borrowers or
such Lender to preserve the confidentiality of any confidential information
relating to the Borrowers received from such Lender.
M. Certain Pledges or Assignments. Nothing herein shall prohibit any
Lender from pledging or assigning any Note to any Federal Reserve Bank in
accordance with Applicable Law. Except as set forth below, any term, covenant,
agreement or condition of this Agreement or any of the other Loan Documents
(other than any Hedging Agreement, the terms and conditions of which may be
amended, modified or waived by the parties thereto in accordance with the
provisions thereof) may be amended or waived by the Lenders, and any consent
given by the Lenders, if, but only if, such amendment, waiver or consent is in
writing signed by the Required Lenders (or by the Administrative Agent with the
consent of the Required Lenders) and delivered to the Administrative Agent and,
in the case of an amendment, signed by the Borrowers; provided, that no
amendment, waiver or consent shall (a) increase the amount or extend the time of
the obligation of the Lenders to make Loans or issue or participate in Letters
of Credit (including without limitation pursuant to Section 2.7), (b) extend the
originally scheduled time or times of payment of the principal of any
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Loan or Reimbursement Obligation or the time or times of payment of interest on
any Loan or Reimbursement Obligation, (c) reduce the rate of interest or fees
payable on any Loan or Reimbursement Obligation, (d) reduce the principal amount
of any Loan or Reimbursement Obligation, (e) permit any subordination of the
principal or interest on any Loan or Reimbursement Obligation, (f) permit any
assignment (other than as specifically permitted or contemplated in this
Agreement) of any Borrower's rights and obligations hereunder or (g) amend the
provisions of this Section 13.13 or the definition of Required Lenders, without
the prior written consent of each Lender. In addition, no amendment, waiver or
consent to the provisions of (a) Article XII shall be made without the written
consent of the Administrative Agent and (b) Article III without the written
consent of the Issuing Lender.
The Borrowers' obligations under this Agreement and each of
the Loan Documents shall be performed by the Borrowers at their sole cost and
expense.
All authorizations granted to the Lenders, the Administrative
Agent and any Persons designated by the Administrative Agent or any Lender
pursuant to any provisions of this Agreement or any of the other Loan Documents
shall be deemed coupled with an interest and shall be irrevocable so long as any
of the Obligations remain unpaid or unsatisfied or the Credit Facility has not
been terminated.
Notwithstanding any termination of this Agreement, the
indemnities to which the Administrative Agent and the Lenders are entitled under
the provisions of this Article XIII and any other provision of this Agreement
and the Loan Documents shall continue in full force and effect and shall protect
the Administrative Agent and the Lenders with respect to acts or omissions prior
to such termination against claims made after such termination as well as
before.
Titles and captions of Articles, Sections and subsections in
this Agreement are for convenience only, and neither limit nor amplify the
provisions of this Agreement.
Any provision of this Agreement or any other Loan Document
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remainder of such provision or the
remaining provisions hereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
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This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and shall be binding upon all
parties, their successors and assigns, and all of which taken together shall
constitute one and the same agreement.
This Agreement shall remain in effect from the Closing Date
through and including the date upon which all Obligations shall have been
indefeasibly and irrevocably paid and satisfied in full. No termination of this
Agreement shall affect the rights and obligations of the parties hereto arising
prior to such termination.
N. Credit Agreement Controls. In the event there is a conflict or
inconsistency between this Agreement and any other Loan Document, the terms of
this Agreement shall control.
O. Covenants Independent. The Borrowers expressly acknowledge and agree
that each covenant contained in Articles VIII, IX, or X hereof shall be given
independent effect. Accordingly, the Borrowers shall not engage in any
transaction or other act otherwise permitted under any covenant contained in
Articles VIII, IX, or X if, before or after giving effect to such
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transaction or act, the Borrowers shall or would be in breach of any other
covenant contained in Articles VIII, IX, or X.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
Attest: JLG INDUSTRIES, INC., as a Borrower
By: ____________________ By:______________________________
Name: Name:
Title: Title:
Attest: FULTON INTERNATIONAL, INC., as a Borrower
By: ____________________ By:______________________________
Name: Name:
Title: Title:
Attest: JLG EQUIPMENT SERVICES, INC., as a Borrower
By: ____________________ By:______________________________
Name: Name:
Title: Title:
Attest: JLG MANUFACTURING, LLC
By: ____________________ By: JLG INDUSTRIES, INC., Authorized Member
Name:
Title: By: _______________________
Name:
Title:
Attest: JLG ACQUISITION CORP.
By: ____________________ By:______________________________
Name: Name:
Title: Title:
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[EXECUTIONS CONTINUED]
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Attest: GRADALL INDUSTRIES, INC., as a Borrower
By: ____________________ By:______________________________
Name: Name:
Title: Title:
Attest: THE GRADALL COMPANY, as a Borrower
By: ____________________ By:______________________________
Name: Name:
Title: Title:
Attest: THE GRADALL ORRVILLE COMPANY, as a
Borrower
By: ____________________ By:______________________________
Name: Name:
Title: Title:
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[EXECUTIONS CONTINUED]
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FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By:______________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as Lender
By:______________________________
Name:
Title:
BANK ONE, MICHIGAN, as Lender
By:______________________________
Name:
Title:
MELLON BANK, N.A., as a Lender
By:______________________________
Name:
Title:
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<PAGE> 85
Schedule 2
(Lenders and Commitments)
<TABLE>
<CAPTION>
LENDER COMMITMENT COMMITMENT
PERCENTAGE
<S> <C> <C>
First Union National Bank
One First Union Center, TW-10
301 South College Street 58% $145,000,000
Charlotte, NC 28288-0608 (Swingline Commitment is
Attention: Syndication Agency Services $20,000,000)
Telephone No.: (704) 374-2698
Telecopy No.: (704) 383-0288
The Chase Manhattan Bank 16% $40,000,000
2 Court Street
Binghamton, NY 14901
Attention: Michael W. Brunner
Vice President
Telephone No.: (607) 772-2375
Telecopy No.: (607) 772-9341
Bank One, Michigan 16% $40,000,000
MI 1-8074
611 Woodward Avenue
Detroit, MI 48226
Attention: Philip R. Medsger
Asst. Vice President
Telephone No.: (313) 225-2406
Telecopy No.: (313) 225-1671
Mellon Bank, N.A. 10% $25,000,000
10 S. Market Street
Harrisburg, PA 17101
Attention: Joseph Butto
Telephone No.: (717) 777-3357
Telecopy No.: (717) 777-3363
</TABLE>
<PAGE> 86
CREDIT AGREEMENT
dated June 18, 1999
by and among
JLG Industries, Inc. and its Subsidiaries
listed on Schedule 1 hereto,
as Borrowers,
the Lenders listed on Schedule 2 hereto,
FIRST UNION NATIONAL BANK,
as Administrative Agent,
BANK ONE, MICHIGAN,
as Syndication Agent
and
THE CHASE MANHATTAN BANK,
as Documentation Agent
<PAGE> 87
TABLE OF CONTENTS
<TABLE>
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ARTICLE I - DEFINITIONS...........................................................................................1
Section 1.1. Definitions........................................................................1
Section 1.2. General...........................................................................14
Section 1.3. Other Definitions and Provisions..................................................14
ARTICLE II - REVOLVING CREDIT FACILITY...........................................................................15
Section 2.1. Revolving Credit Loans............................................................15
Section 2.2. Swingline Loans...................................................................15
Section 2.3. Procedure for Advances of Revolving Credit and Swingline
Loans.............................................................................16
Section 2.4. Repayment of Loans................................................................18
Section 2.5. Notes.............................................................................19
Section 2.6. Permanent Reduction of the Aggregate Commitment...................................19
Section 2.7. Termination of Credit Facility....................................................20
Section 2.8. Use of Proceeds...................................................................20
ARTICLE III - LETTER OF CREDIT FACILITY..........................................................................20
Section 3.1. L/C Commitment....................................................................20
Section 3.2. Procedure for Issuance of Letters of Credit.......................................20
Section 3.3. Commissions and Other Charges.....................................................21
Section 3.4. L/C Participations................................................................21
Section 3.5. Reimbursement Obligation of the Borrowers.........................................22
Section 3.6. Obligations Absolute..............................................................23
Section 3.7. Effect of Application.............................................................23
ARTICLE IV - GENERAL LOAN PROVISIONS.............................................................................23
Section 4.1. Interest..........................................................................23
Section 4.2. Notice and Manner of Conversion or Continuation of Loans..........................25
Section 4.3. Fees..............................................................................26
Section 4.4. Manner of Payment.................................................................27
Section 4.5. Credit of Payments and Proceeds...................................................27
Section 4.6. Adjustments.......................................................................28
Section 4.7. Nature of Obligations of Lenders Regarding Extensions of Credit;
Assumption by the Administrative Agent............................................28
Section 4.8. Changed Circumstances.............................................................29
Section 4.9. Indemnity.........................................................................31
Section 4.10.Capital Requirements..............................................................31
Section 4.11.Taxes.............................................................................31
</TABLE>
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<TABLE>
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ARTICLE V - CLOSING; CONDITIONS OF CLOSING AND BORROWING.........................................................33
Section 5.1. Closing...........................................................................33
Section 5.2. Conditions to Closing and Initial Extensions of Credit............................33
ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF THE BORROWERS.....................................................37
Section 6.1. Representations and Warranties....................................................37
ARTICLE VII - FINANCIAL INFORMATION AND NOTICES..................................................................47
Section 7.1. Financial Statements..............................................................47
Section 7.2. Officer's Compliance Certificate..................................................48
Section 7.3. Accountants' Certificate..........................................................48
Section 7.4. Other Reports.....................................................................48
Section 7.5. Notice of Litigation and Other Matters............................................49
Section 7.6. Accuracy of Information...........................................................50
ARTICLE VIII - AFFIRMATIVE COVENANTS............................................................................50
Section 8.1. Preservation of Corporate Existence and Related Matters...........................50
Section 8.2. Maintenance of Property...........................................................50
Section 8.3. Insurance.........................................................................50
Section 8.4. Accounting Methods and Financial Records..........................................51
Section 8.5. Payment and Performance of Obligations............................................51
Section 8.6. Compliance With Laws and Approvals................................................51
Section 8.7. Environmental Laws................................................................51
Section 8.8. Compliance with ERISA.............................................................52
Section 8.9. Compliance With Agreements........................................................52
Section 8.10.Conduct of Business...............................................................52
Section 8.11.Visits and Inspections............................................................52
Section 8.12.Additional Subsidiaries...........................................................53
Section 8.13.Deposit Account...................................................................53
Section 8.14.Transactions Among Affiliates.....................................................53
Section 8.15.Year 2000 Compliance..............................................................53
Section 8.16.Costs and Expenses................................................................53
Section 8.17.Further Assurances................................................................53
Section 8.18.Merger............................................................................54
ARTICLE IX - FINANCIAL COVENANTS.................................................................................54
Section 9.1. Leverage Ratio....................................................................54
Section 9.2. Interest Coverage Ratio...........................................................54
Section 9.3. Minimum Net Worth.................................................................54
</TABLE>
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<TABLE>
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ARTICLE X - NEGATIVE COVENANTS...................................................................................54
Section 10.1. Limitations on Debt..............................................................54
Section 10.2. Limitations on Guaranty Obligations..............................................55
Section 10.3. Limitations on Liens.............................................................56
Section 10.4. Limitations on Loans, Advances, Investments and
Acquisitions.....................................................................56
Section 10.5. Limitations on Mergers and Liquidation...........................................58
Section 10.6. Limitations on Sale of Assets....................................................58
Section 10.7. Limitations on Stock Transactions................................................59
Section 10.8. Limitations on Exchange and Issuance of Capital Stock............................59
Section 10.9. Certain Accounting Changes.......................................................60
Section 10.10.Amendments; Payments and Prepayments of Subordinated
Debt.............................................................................60
Section 10.11.Restrictive Agreements...........................................................60
Section 10.12.Use of Proceeds..................................................................60
ARTICLE XI - DEFAULT AND REMEDIES................................................................................60
Section 11.1. Events of Default................................................................60
Section 11.2. Remedies.........................................................................63
Section 11.3. Rights and Remedies Cumulative; Non-Waiver, etc..................................64
ARTICLE XII - THE ADMINISTRATIVE AGENT...........................................................................64
Section 12.1. Appointment......................................................................64
Section 12.2. Delegation of Duties.............................................................65
Section 12.3. Exculpatory Provisions...........................................................65
Section 12.4. Reliance by the Administrative Agent.............................................65
Section 12.5. Notice of Default................................................................66
Section 12.6. Non-Reliance on the Administrative Agent and Other
Lenders..........................................................................66
Section 12.7. Indemnification..................................................................67
Section 12.8. The Administrative Agent in Its Individual Capacity..............................67
Section 12.9. Resignation of the Administrative Agent; Successor
Administrative Agent.............................................................67
ARTICLE XIII - MISCELLANEOUS.....................................................................................68
Section 13.1. Notices..........................................................................68
Section 13.2. Expenses; Indemnity..............................................................69
Section 13.3. Set-off..........................................................................70
Section 13.4. Governing Law....................................................................70
Section 13.5. Consent to Jurisdiction..........................................................70
Section 13.6. Waiver of Jury Trial.............................................................71
Section 13.7. Reversal of Payments.............................................................71
</TABLE>
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<TABLE>
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Section 13.8. Injunctive Relief; Punitive Damages..............................................72
Section 13.9. Accounting Matters...............................................................72
Section 13.10.Successors and Assigns; Participations...........................................72
Section 13.11.Participations...................................................................74
Section 13.12.Disclosure of Information; Confidentiality.......................................75
Section 13.13.Certain Pledges or Assignments...................................................75
Section 13.14.Credit Agreement Controls........................................................77
Section 13.15.Covenants Independent............................................................77
</TABLE>
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EXHIBITS
- --------
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Swingline Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Officer's Certificate
Exhibit G - Form of Joinder Agreement
Exhibit H - Form of Assignment and Acceptance
SCHEDULES
Schedule 1 - Borrowers
Schedule 2 - Lenders and Commitments
Schedule 6.1(a) - Jurisdictions of Organization and Qualification
Schedule 6.1(b) - Subsidiaries and Capitalization
Schedule 6.1(i) - ERISA Plans
Schedule 6.1(i)(ii) - Multiemployer Plans
Schedule 6.1(i)(vii) - Benefits under Pension Plans
Schedule 6.1(i)(ix) - Unfunded Liabilities
Schedule 6.1(l) - Material Contracts
Schedule 6.1(m) - Labor and Collective Bargaining Agreements
Schedule 6.1(t) - Debt and Guaranty Obligations
Schedule 6.1(u) - Litigation
Schedule 10.3 - Existing Liens
Schedule 10.4 - Existing Loans, Advances and Investments
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<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-8 (Nos. 33-61333, 33-60366, and 33-75746) of JLG
Industries, Inc. of our report dated February 23, 1999 relating to the
consolidated financial statements of Gradall Industries, Inc. and its
subsidiaries at December 31, 1998 and 1997, and for each of the three years in
the period ended December 31, 1998, which appears in the Current Report on Form
8-K/A of JLG Industries, Inc. dated August 31, 1999.
/s/ PricewaterhouseCoopers LLP
Cleveland, Ohio
August 31, 1999
