<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15 (d) of the Securities Exchange
Act of 1934
For the quarterly period ended January 31, 2000
or
[ ] Transition Report Pursuant to Section 13 or 15 (d) of the Securities
Exchange Act of 1934
For the transition period from_________________to_________________
Commission file number: 0-8454
JLG INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
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
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
--- ---
At February 22, 2000, there were 44,380,948 shares of capital stock of the
Registrant outstanding.
<PAGE> 2
TABLE OF CONTENTS
ITEM
- ----
PART 1
1. FINANCIAL INFORMATION............................................. 1
CONDENSED CONSOLIDATED BALANCE SHEETS......................... 1
CONDENSED CONSOLIDATED STATEMENTS OF INCOME................... 2
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS............... 3
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS.................................................... 4
2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS............................... 7
3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT
MARKET RISK....................................................... 9
INDEPENDENT ACCOUNTANTS' REVIEW REPORT................................... 11
PART II
6. EXHIBITS AND REPORTS ON FORM 8-K.................................. 12
SIGNATURES .............................................................. 12
<PAGE> 3
PART I FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
JLG INDUSTRIES, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands)
<TABLE>
<CAPTION>
January 31, July 31,
2000 1999
----------- --------
(Unaudited)
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash $ 8,375 $ 19,033
Accounts receivable 189,120 162,820
Inventories 198,445 125,571
Other current assets 18,445 8,563
-------- --------
Total current assets 414,385 315,987
PROPERTY, PLANT AND EQUIPMENT 100,214 100,534
EQUIPMENT HELD FOR RENTAL 12,724 23,068
GOODWILL 152,879 155,655
OTHER ASSETS 30,756 30,573
-------- --------
$710,958 $625,817
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Short-term debt $ 2,656 $ 2,656
Current portion of long-term debt 744 625
Accounts payable 79,423 78,793
Accrued expenses 46,715 57,598
-------- --------
Total current liabilities 129,538 139,672
LONG-TERM DEBT, LESS CURRENT PORTION 251,322 172,512
ACCRUED POSTRETIREMENT BENEFITS 22,207 21,471
OTHER LONG-TERM LIABILITIES 9,022 9,463
PROVISIONS FOR CONTINGENCIES 11,082 11,416
SHAREHOLDERS' EQUITY
Capital stock:
Authorized shares: 100,000 at $.20 par
Outstanding shares: 44,321; fiscal 1999 - 44,250 8,864 8,850
Additional paid-in capital 18,597 17,246
Unearned compensation (1,826) (1,324)
Accumulated other comprehensive income (3,523) (3,495)
Retained earnings 265,675 250,006
-------- --------
Total shareholders' equity 287,787 271,283
-------- --------
$710,958 $625,817
======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
1
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JLG INDUSTRIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(in thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
January 31, January 31,
2000 1999 2000 1999
-------- -------- -------- --------
<S> <C> <C> <C> <C>
NET SALES $206,868 $138,235 $424,863 $266,890
Cost of sales 168,273 106,727 333,695 205,656
-------- -------- -------- --------
GROSS PROFIT 38,595 31,508 91,168 61,234
Selling, administrative and product
development expenses 26,263 16,284 53,318 31,300
Goodwill amortization 1,527 -- 3,088 --
-------- -------- -------- --------
INCOME FROM OPERATIONS 10,805 15,224 34,762 29,934
Other income (deductions):
Interest expense (5,465) (58) (8,900) (111)
Miscellaneous, net (444) 481 63 1,359
-------- -------- -------- --------
INCOME BEFORE TAXES 4,896 15,647 25,925 31,182
Income tax provision 1,811 4,320 9,592 9,602
-------- -------- -------- --------
NET INCOME $ 3,085 $ 11,327 $ 16,333 $ 21,580
======== ======== ======== ========
EARNINGS PER COMMON SHARE $ .07 $ .26 $ .37 $ .49
======== ======== ======== ========
EARNINGS PER COMMON SHARE -
ASSUMING DILUTION $ .07 $ .25 $ .36 $ .48
======== ======== ======== ========
CASH DIVIDENDS PER SHARE $ .01 $ .005 $ .015 $ .01
======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
2
<PAGE> 5
JLG INDUSTRIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
January 31,
2000 1999
--------- --------
<S> <C> <C>
OPERATIONS
Net income $ 16,333 $ 21,580
Adjustments for noncash items:
Depreciation and amortization 13,862 9,440
Other 2,448 2,412
Changes in operating assets and liabilities (119,875) (62,910)
Changes in other assets and liabilities (1,400) 4,045
--------- --------
Cash used for operations (88,632) (25,433)
INVESTMENTS
Purchases of property, plant and equipment (9,222) (4,726)
Retirements (additions) to equipment held for rental 8,119 (10,198)
--------- --------
Cash used for investments (1,103) (14,924)
FINANCING
Issuance of long-term debt 162,088 --
Repayment of long-term debt (83,159) (134)
Payment of dividends (664) (441)
Exercise of stock options and issuance of restricted awards 863 681
--------- --------
Cash provided by financing 79,128 106
CURRENCY ADJUSTMENTS
Effect of exchange rate changes on cash (51) 221
--------- --------
CASH
Net change in cash (10,658) (40,030)
Beginning balance 19,033 56,793
--------- --------
Ending balance $ 8,375 $ 16,763
========= ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
<PAGE> 6
JLG INDUSTRIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JANUARY 31, 2000
(in thousands, except per share data)
(Unaudited)
BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all information and notes
required by generally accepted accounting principles for complete financial
statements. In the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation have been
included.
Operating results for the three and six month periods ended January 31, 2000 are
not necessarily indicative of the results that may be expected for the fiscal
year as a whole. For further information, refer to consolidated financial
statements and notes included in the Company's annual report on Form 10-K for
the fiscal year ended July 31, 1999.
INVENTORIES AND COST OF SALES
A precise inventory valuation under the LIFO (last-in, first-out) method can
only be made at the end of each fiscal year; therefore, interim LIFO inventory
valuation determinations, including the determination at January 31, 2000, must
necessarily be based on management's estimate of expected fiscal year-end
inventory levels and costs.
The components of inventory at the end of the each period consisted of the
following:
<TABLE>
<CAPTION>
January 31, July 31,
2000 1999
---------- --------
<S> <C> <C>
Finished goods $132,941 $ 68,994
Work in process 14,469 12,544
Raw materials 55,923 48,561
-------- --------
203,333 130,099
Excess of FIFO cost over LIFO inventory value (4,888) (4,528)
-------- --------
$198,445 $125,571
======== ========
</TABLE>
COMPREHENSIVE INCOME
The following table sets forth the components of comprehensive income for each
of the periods ended January 31:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
January 31, January 31,
2000 1999 2000 1999
------ ------- ------- -------
<S> <C> <C> <C> <C>
Net income $3,085 $11,327 $16,333 $21,580
Aggregate currency translation adjustment 113 26 28 (221)
------ ------- ------- -------
$3,198 $11,353 $16,361 $21,359
====== ======= ======= =======
</TABLE>
4
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BASIC AND DILUTED EARNINGS PER SHARE
The computation of basic and diluted earnings per share for the each of the
periods ended January 31 are as follows:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
January 31, January 31,
2000 1999 2000 1999
------- ------- ------- -------
<S> <C> <C> <C> <C>
Net income $ 3,085 $11,327 $16,333 $21,580
======= ======= ======= =======
Denominator for basic earnings per share --
Weighted average shares 43,998 43,794 43,989 43,793
Effect of dilutive securities - employee stock options and
Unvested restricted shares 1,725 1,141 1,626 1,131
------- ------- ------- -------
Denominator for diluted earnings per share --
Weighted average shares adjusted for
Dilutive securities 45,723 44,935 45,615 44,924
======= ======= ======= =======
Earnings per common share $ .07 $ .26 $ .37 $ .49
======= ======= ======= =======
Earnings per common share - assuming dilution $ .07 $ .25 $ .36 $ .48
======= ======= ======= =======
</TABLE>
Options to purchase 1,111 shares of common stock at a range of $13.69 to $21.94
were outstanding during the second quarter of fiscal 2000. However these shares
were not included in the computation of diluted earnings per share because the
options' exercise price was greater than the average market price of the common
shares.
COMMITMENTS AND CONTINGENCIES
The Company is a party to personal injury and property damage litigation arising
out of incidents involving the use of its products. The Company's insurance
program for fiscal year 2000 is comprised of a self-insured retention of $7
million for domestic claims, insurance coverage of $2 million for international
claims and catastrophic coverage for domestic and international claims of $75
million in excess of the retention and international primary coverage. The
Company contracts with an independent firm to provide claims handling and
adjustment services. The Company's estimates with respect to claims are based on
internal evaluations of the merits of individual claims and the reserves
assigned by the Company's independent firm. The methods of making such estimates
and establishing the resulting accrued liability are reviewed frequently, and
any adjustments resulting therefrom are reflected in current earnings. Claims
are paid over varying periods, which generally do not exceed five years. Accrued
liabilities for future claims are not discounted.
With respect to all product liability claims of which the Company is aware,
accrued liabilities of $13.3 million and $14.1 million were established at
January 31, 2000 and July 31, 1999, respectively. While the Company's ultimate
liability may exceed or be less than the amounts accrued, the Company believes
that it is unlikely that it would experience losses that are materially in
excess of such reserve amounts.
5
<PAGE> 8
As of January 31, 2000 and July 31, 1999, there were no insurance recoverables
or offset implications and there were no claims by the Company being contested
by insurers.
SEGMENT INFORMATION
The Company operates in two reportable business segments - machinery, which
consists of the design, manufacture and sale of new equipment; and customer
services and support, which consists of after-sales service and support,
including parts sales, equipment rentals, used equipment sales and rebuilding
used equipment. The Company evaluates the performance of its reportable segments
based upon a number of factors including segment profit. Segment profit excludes
interest, miscellaneous income/expense and income taxes. Intersegment sales and
transfers are accounted for at cost and are not significant.
The following table provides business segment information for each of the
periods ended January 31:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
January 31, January 31,
2000 1999 2000 1999
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Sales to unaffiliated customers:
Machinery $177,789 $119,174 $359,918 $231,052
Customer services and support 29,079 19,061 64,945 35,838
-------- -------- -------- --------
$206,868 $138,235 $424,863 $266,890
======== ======== ======== ========
Segment profit (loss):
Machinery $ 14,349 $ 16,058 $ 38,542 $ 31,911
Customer services and support 8,091 6,633 19,178 12,673
General corporate expenses (11,635) (7,467) (22,958) (14,650)
-------- -------- -------- --------
$ 10,805 $ 15,224 $ 34,762 $ 29,934
======== ======== ======== ========
</TABLE>
BANK CREDIT LINES AND LONG-TERM DEBT
The Company has credit agreements with a group of financial institutions that
provides for an unsecured revolving credit facility expiring June 2004 with an
aggregate commitment of $350 million. During the quarter, the Company increased
its revolving credit facility to $350 million from $250 million. Borrowings
under the agreements bear interest equal to either LIBOR plus a margin ranging
from 0.55 percent to 1.125 percent, depending on the Company's ratio of funded
debt to EBITDA; or the greater of prime or federal funds rate plus 0.50 percent.
The Company is required to pay an annual administrative fee of $35 and a
facility fee ranging from 0.20 percent to 0.275 percent, depending on the
Company's ratio of funded debt to EBITDA. The agreements contains customary
affirmative and negative covenants including financial covenants requiring the
maintenance of specified consolidated interest coverage, leverage ratios and a
minimum net worth. The Company also has available a $20 million unsecured bank
revolving line of credit with a term of one year, renewable annually, and at an
interest rate of prime or a spread over LIBOR. The Company also has $2.5 million
in loan facilities with a term of one year, renewable annually, and at a fixed
weighted average interest rate of 5.7 percent.
The components of long-term debt at the end of the each period consisted of the
following:
<TABLE>
<CAPTION>
January 31, July 31,
2000 1999
-------- --------
<S> <C> <C>
Revolving credit facility due 2004 with an average
interest rate of 7.02% at January 31, 2000 $249,000 $169,912
Other 3,066 3,225
-------- --------
252,066 173,137
Less current portion 744 625
-------- --------
$251,322 $172,512
======== ========
</TABLE>
6
<PAGE> 9
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
RESULTS FOR THE SECOND QUARTERS OF FISCAL 2000 AND 1999
Sales for the second fiscal quarter ended January 31, 2000 were $206.9 million,
up $68.7 million or 50 percent from the $138.2 million reported in the year-ago
period. Growth of the aerial work platform product group accounted for $27.8
million, or 41 percent of the revenue increase, while telescopic material
handling and excavator products, acquired in June 1999, represented $40.9
million, or 59 percent of the increase. Domestic sales for the second quarter of
fiscal 2000 were $148.9, up 59 percent from the fiscal 1999 second quarter sales
of $93.5 million. International sales were $58.0 million, up 30 percent from the
comparable year-ago quarter. Customer Service and Support sales for the second
fiscal quarter were $29.1 million, up $10.1 million or 53 percent compared to
prior year quarter.
The gross profit percentage for the quarter was 18.7 percent, down 4.1
percentage points from the year-ago quarter. As a result of the Company's cost
reduction efforts, the gross profit percentage was favorably impacted by lower
product costs but more than offset by the following factors: a less favorable
product mix; the impact of aggressive acceptance of trade-ins to displace
competitor products during the quarter; competitive price pressures; strength of
the U.S. dollar against foreign currencies, primarily the Euro; and start-up
costs for the Shippensburg and Orrville plants.
The $10.0 million increase in selling, administrative and product development
costs compared to the 1999 second fiscal quarter was principally due to the
Gradall acquisition and the expansion of the Company's sales and service
capabilities globally. At 12.7 percent of sales, these expenses were nine tenths
of a percent above the percentage for the year ago quarter.
The current year quarter includes $1.5 million in goodwill amortization
primarily due to the Gradall acquisition. The increase in interest charges of
$5.4 million was due to an increase in average borrowings to fund the Gradall
acquisition and working capital investments.
The effective tax rate of 37 percent was more than nine percentage points higher
in the fiscal 2000 second quarter compared to the year-ago period. This increase
was primarily due to goodwill charges not being tax deductible and a one-time
benefit attributable to certain tax incentives related to export sales in the
fiscal 1999 second quarter.
RESULTS FOR THE FIRST SIX MONTHS OF FISCAL 2000 AND 1999
For the six-month period ended January 31, 2000, sales were $424.9 million, up
$158.0 million, or 59 percent, from the $266.9 million reported in the year-ago
period. Growth of the aerial work platform product group accounted for $79.9
million, or 51 percent of the revenue increase, while telescopic material
handling and excavator products represented $78.1 million, or 49 percent of the
increase. Domestic sales for the six months of fiscal 2000 were $311.9, up 69
percent from the fiscal 1999 six
7
<PAGE> 10
months sales of $184.2 million. International sales were $113.0 million, up 37
percent from the comparable year-ago period. Customer Service and Support sales
for the six-month period were $65.0 million, up $29.2 million or 81 percent
compared to prior year period.
Gross profit percentage for the six months of fiscal 2000 was 21.5 percent, down
1.4 percentage points from the year-ago period. The decrease was mainly due to
the same factors as discussed in the second quarter comparison.
Selling, administrative and product development costs increased $22.0 million
from the comparable year-ago six months. The increase was mainly due to the same
factors as discussed in the second quarter comparison. At 12.5 percent of sales,
these expenses were eight tenths of a percent above the percentage for the year
ago quarter.
The current year period includes $3.1 million in goodwill amortization and an
increase in interest charges of $8.8 million, primarily due to the same factors
as discussed in the second quarter comparison.
The effective tax rate of 37 percent was six percentage points higher in the
fiscal 2000 six-month period compared to the year-ago period. This increase was
primarily due to the same factors as discussed in the second quarter comparison.
FINANCIAL CONDITION
Cash used for operations increased to $88.6 million in the first six months of
fiscal 2000 from $25.4 million used for operations in the comparable period of
1999. The increase in cash used for operations in fiscal 2000 compared to fiscal
1999 was primarily due to a $119.9 million change in operating assets and
liabilities principally reflecting higher receivable and inventory levels.
Receivables were higher in dollar terms and days sales outstanding due to
expanded use of extended payment terms. The increase in inventory is due to the
Company's decision to maintain relatively constant production levels in
anticipation of the high level of demand corresponding to the prime buying
season of the Company's customers, and a more pronounced than anticipated
deferral of purchases by certain major North American rental customers into the
2000 calendar year.
Cash used for investing activities during the first six months of fiscal 2000
was $1.1 million compared to $14.9 million for last year's comparable period.
The decrease relates primarily to sales of equipment held for rental which
occurred in fiscal year 2000. Partially offsetting the decrease in cash used for
investing activities were capital expenditures for the Shippensburg,
Pennsylvania and Orrville, Ohio facilities.
At January 31, 2000, the Company had unused credit lines totaling $121 million.
The Company believes that its credit lines, coupled with cash expected to be
generated by operations, to be sufficient to fund its ongoing operations,
capital-related projects for fiscal 2000 and its plan to purchase on the open
market up to five million shares of its common stock. These share purchases may
begin immediately after lender approvals are received, which are expected
shortly, and may occur, from time to time, during the twelve month period
commencing on February 16, 2000. Capital expenditures are expected to consist of
capital projects primarily for the Shippensburg, Pennsylvania and Orrville, Ohio
facilities.
Cash provided from financing activities was $79.1 million for the first six
months of fiscal 2000 compared to $106 thousand provided for the comparable
period of fiscal 1999. Increased borrowings under the existing revolving credit
agreements were used for business expansion as discussed above.
8
<PAGE> 11
The Company's exposure to product liability claims is discussed in the note
entitled Commitments and Contingencies of the Notes to Consolidated Financial
Statements of this report. Future results of operations, financial condition and
liquidity may be affected to the extent that the Company's ultimate exposure
with respect to product liability varies from current estimates.
OUTLOOK
This Outlook section and other parts of this Management's Discussion and
Analysis contain forward-looking information and involve certain risks and
uncertainties that could significantly impact expected results. Certain
important factors that, in some cases have affected, and in the future could
affect, the Company's results of operations and that could cause such future
results of operations to differ materially are described in "Cautionary
Statements Pursuant to the Securities Litigation Reform Act" which is an exhibit
to this report.
Most of the factors which detracted from profits in the second quarter are
reversible, and management is aggressively addressing each of these. Further,
management is confident in the overall health of the aerial work platform and
excavator marketplaces and is encouraged with the opportunity to expand sales of
material handler products. Management will continue to focus on growing the
business by maintaining its leadership positions in these product categories,
and by so doing, enhancing its profitability and the value it creates for
shareholders.
To combat the current pricing environment and improve gross profit margins,
management is placing increased emphasis on improving manufacturing efficiencies
and reducing costs. These efforts are taking place on several fronts, including
an accelerated focus on Gradall operations. Start-up costs at the Company's
Orrville and Shippensburg facilities will be eliminated as management brings
these two new plants fully on line by the end of this calendar year. When fully
operational, management expects to begin realizing the positive cost reduction
benefits they provide. Although the Company continues to pursue its trade-in
strategy, management expects the impact on margins from this activity to lessen
during the second half of the fiscal year. Management also expects the Company's
product mix to be more favorable in the second half of 2000.
On January 18, 2000, the Company forecast sales to be approximately $1.0 billion
and earnings per share to be in the $1.20 to $1.25 range and on February 17th,
the Company announced that it expected to meet or exceed the sales and earnings
forecasts previously announced in January.
IMPACT OF YEAR 2000
The year 2000 issue arose out of the fact that many computer programs were
written using two digits to identify the applicable year rather than four
digits. It was feared that computer programs with date-sensitive software or
equipment with embedded date-sensitive technology might misinterpret a two-digit
year code. This error could result in system or equipment failures or
miscalculations and disruptions of operations. As of December 31, 1999, the
Company had completed all aspects of its year 2000 readiness program and,
through February 17, 2000, the Company has not experienced any significant
problems related to the Y2K issue.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is exposed to market risk from changes in interest rates and foreign
currency exchange rates, which could affect its future results of operations and
financial condition. The Company manages exposure to these risks principally
through its regular operating and financing activities.
9
<PAGE> 12
While the Company is exposed to changes in interest rates as a result of its
outstanding debt, the Company does not currently utilize any derivative
financial instruments related to its interest rate exposure. Total short-term
and long-term debt outstanding at January 31, 2000 was $254.7 million,
consisting of $249.0 million in variable rate borrowing and $5.7 million in
fixed rate borrowing. At the current level of variable rate borrowing, a
hypothetical 10 percent increase in interest rates would decrease pre-tax
current year earnings by approximately $1.7 million on an annual basis. A
hypothetical 10 percent change in interest rates would not result in a material
change in the fair value of the Company's fixed rate debt. The Company does not
have a material exposure to financial risk from using derivative financial
instruments to manage its foreign currency exposures. For additional
information, reference is made to Item 7 in the Company's annual report on Form
10-K for the fiscal year ended July 31, 1999.
10
<PAGE> 13
Independent Accountants' Review Report
The Board of Directors
JLG Industries, Inc.
We have reviewed the accompanying condensed consolidated balance sheet of JLG
Industries, Inc. and subsidiaries as of January 31, 2000, and the related
condensed consolidated statements of income for the three month periods ended
January 31, 2000 and 1999 and the condensed consolidated statements of cash
flows for the six-month periods ended January 31, 2000 and 1999. These financial
statements are the responsibility of the Company's management.
We conducted our reviews in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data, and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted in
accordance with auditing standards generally accepted in the United States,
which will be performed for the full year with the objective of expressing an
opinion regarding the financial statements taken as a whole. Accordingly, we do
not express such an opinion.
Based on our reviews, we are not aware of any material modifications that should
be made to the accompanying financial statements referred to above for them to
be in conformity with accounting principles generally accepted in the United
States.
We have previously audited, in accordance with auditing standards generally
accepted in the United States, the consolidated balance sheet of JLG Industries,
Inc. as of July 31, 1999, and the related consolidated statements of income,
shareholders' equity, and cash flows for the year then ended (not presented
herein), and in our report dated September 9, 1999, we expressed an unqualified
opinion on those consolidated financial statements. In our opinion, the
information set forth in the accompanying condensed consolidated balance sheet
as of July 31, 1999, is fairly stated, in all material respects, in relation to
the consolidated balance sheet from which it has been derived.
/s/ Ernst & Young LLP
Baltimore, Maryland
February 15, 2000
11
<PAGE> 14
PART II OTHER INFORMATION
ITEMS 1 - 5
None/not applicable.
ITEM 6 -- EXHIBITS AND REPORTS ON FORM 8-K
(a) The following exhibits are included herein:
4.1 Working Capital Agreement dated December 16, 1999 between JLG
Industries, Inc. and First Union National Bank.
15 Letter re: Unaudited Interim Financial Information
27 Financial Data Schedule
99 Cautionary Statements Pursuant to the Securities Litigation
Reform Act
(b) The company was not required to file Form 8-K pursuant to requirements of
such form for any of the three months ended January 31, 2000.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized who is also signing in his capacity as
principal financial officer.
JLG INDUSTRIES, INC.
(Registrant)
/s/ Charles H. Diller, Jr.
-----------------------------
Charles H. Diller, Jr.
Executive Vice President and
Chief Financial Officer
12
<PAGE> 1
EXHIBIT 4.1
WORKING CAPITAL
CREDIT AGREEMENT
dated December 16, 1999
by and among
JLG Industries, Inc. and its Subsidiaries
listed on Schedule I 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> 2
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS.......................................................1
Section 1.1. Definitions................................................1
Section 1.2. General...................................................13
Section 1.3. Other Definitions and Provisions..........................13
ARTICLE II - WORKING CAPITAL FACILITY........................................14
Section 2.1. Loans.....................................................14
Section 2.2. Procedure for Advances of Loans...........................14
Section 2.3. Repayment of Loans........................................15
Section 2.4. Notes.....................................................16
Section 2.5. Permanent Reduction of the Aggregate Commitment...........16
Section 2.6. Termination of Working Capital Facility...................17
Section 2.7. Use of Proceeds...........................................17
ARTICLE III - GENERAL LOAN PROVISIONS........................................17
Section 3.1. Interest..................................................17
Section 3.2. Notice and Manner of Conversion or Continuation of Loans..19
Section 3.3. Fees......................................................20
Section 3.4. Manner of Payment.........................................20
Section 3.5. Credit of Payments and Proceeds...........................21
Section 3.6. Adjustments...............................................21
Section 3.7. Nature of Obligations of Lenders Regarding Loans;
Assumption by the Administrative Agent....................21
Section 3.8. Changed Circumstances.....................................23
Section 3.9. Indemnity.................................................24
Section 3.10. Capital Requirements......................................25
Section 3.11. Taxes.....................................................26
ARTICLE IV - CLOSING; CONDITIONS OF CLOSING AND BORROWING....................27
Section 4.1. Closing...................................................27
Section 4.2. Conditions to Closing and Initial Loans...................28
Section 4.3. Conditions to All Loans...................................31
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ARTICLE V - REPRESENTATIONS AND WARRANTIES OF THE BORROWERS..................31
Section 5.1. Representations and Warranties............................31
Section 5.2. Survival of Representations and Warranties, Etc...........40
ARTICLE VI - FINANCIAL INFORMATION AND NOTICES...............................41
Section 6.1. Financial Statements..................................41
Section 6.2. Officer's Compliance Certificate......................42
Section 6.3. Accountants' Certificate..............................42
Section 6.4. Other Reports.........................................42
Section 6.5. Notice of Litigation and Other Matters................42
Section 6.6. Accuracy of Information...............................44
ARTICLE VII - AFFIRMATIVE COVENANTS..........................................44
Section 7.1. Preservation of Corporate Existence and Related
Matters...............................................44
Section 7.2. Maintenance of Property...............................44
Section 7.3. Insurance.............................................44
Section 7.4. Accounting Methods and Financial Records..............44
Section 7.5. Payment and Performance of Obligations................45
Section 7.6. Compliance With Laws and Approvals....................45
Section 7.7. Environmental Laws....................................45
Section 7.8. Compliance with ERISA.................................45
Section 7.9. Compliance With Agreements............................46
Section 7.10. Conduct of Business...................................46
Section 7.11. Visits and Inspections................................46
Section 7.12. Additional Subsidiaries...............................46
Section 7.13. Deposit Account.......................................47
Section 7.14. Transactions Among Affiliates.........................47
Section 7.15. Year 2000 Compliance..................................47
Section 7.16. Costs and Expenses....................................47
Section 7.17. Further Assurances....................................47
Section 7.18 Subsequent Credit Terms...............................48
ARTICLE VIII - FINANCIAL COVENANTS...........................................48
Section 8.1. Leverage Ratio........................................48
Section 8.2. Interest Coverage Ratio...............................48
Section 8.3. Minimum Net Worth.....................................48
ARTICLE IX - NEGATIVE COVENANTS..............................................48
Section 9.1. Limitations on Debt...................................49
Section 9.2. Limitations on Guaranty Obligations...................50
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Section 9.3. Limitations on Liens..................................50
Section 9.4. Limitations on Loans, Advances, Investments and
Acquisitions..........................................51
Section 9.5. Limitations on Mergers and Liquidation................52
Section 9.6. Limitations on Sale of Assets.........................53
Section 9.7. Limitations on Stock Transactions.....................54
Section 9.8. Limitations on Exchange and Issuance of Capital
Stock.................................................54
Section 9.9. Certain Accounting Changes............................54
Section 9.10. Amendments; Payments and Prepayments of
Subordinated Debt.....................................54
Section 9.11. Restrictive Agreements................................54
Section 9.12. Use of Proceeds.......................................54
ARTICLE X - DEFAULT AND REMEDIES.............................................55
Section 10.1. Events of Default.....................................55
Section 10.2. Remedies 53
Section 10.3. Rights and Remedies Cumulative; Non-Waiver, etc.......58
ARTICLE XI - THE ADMINISTRATIVE AGENT........................................59
Section 11.1. Appointment...........................................59
Section 11.2. Delegation of Duties..................................59
Section 11.3. Exculpatory Provisions................................59
Section 11.4. Reliance by the Administrative Agent..................60
Section 11.5. Notice of Default.....................................60
Section 11.6. Non-Reliance on the Administrative Agent and Other
Lenders...............................................60
Section 11.7. Indemnification.......................................61
Section 11.8. The Administrative Agent in Its Individual Capacity...61
Section 11.9. Resignation of the Administrative Agent; Successor
Administrative Agent..................................62
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ARTICLE XII - MISCELLANEOUS..................................................62
Section 12.1. Notices..............................................62
Section 12.2. Expenses; Indemnity..................................65
Section 12.3. Set-off ............................................65
Section 12.4. Governing Law........................................66
Section 12.5. Consent to Jurisdiction..............................66
Section 12.6. Waiver of Jury Trial.................................66
Section 12.7. Reversal of Payments.................................67
Section 12.8. Injunctive Relief; Punitive Damages..................67
Section 12.9. Accounting Matters...................................67
Section 12.10. Successors and Assigns...............................68
Section 12.11. Participations.......................................70
Section 12.12. Disclosure of Information; Confidentiality...........70
Section 12.13. Certain Pledges or Assignments; Consents.............71
Section 12.14. Agreement Controls...................................72
Section 12.15. Covenants Independent................................72
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SCHEDULES
Schedule 1 - Borrowers
Schedule 2 - Lenders and Commitments
Schedule 5.1(a) - Jurisdictions of Organization and Qualification
Schedule 5.1(b) - Subsidiaries and Capitalization
Schedule 5.1(i) - ERISA Plans
Schedule 5.1(i)(ii) - Multiemployer Plans
Schedule 5.1(i)(vii) - Benefits under Pension Plans
Schedule 5.1(i)(ix) - Unfunded Liabilities
Schedule 5.1(l) - Material Contracts
Schedule 5.1(m) - Labor and Collective Bargaining Agreements
Schedule 5.1(t) - Debt and Guaranty Obligations
Schedule 5.1(u) - Litigation
Schedule 9.3 - Existing Liens
Schedule 9.4 - Existing Loans, Advances and Investments
EXHIBITS
Exhibit A - Form of 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
THIS WORKING CAPITAL CREDIT AGREEMENT (this "Agreement"), dated the
16th day of December, 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 to
the Borrowers certain credit facilities on the terms and conditions of this
Agreement for use by the Borrowers to support working capital and general
corporate purposes (excluding acquisitions).
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:
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ARTICLE I
DEFINITIONS
Section 1.1. 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 11.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
12.1(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 One Hundred Million Dollars ($100,000,000).
"Agreement" means this Working Capital 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
3.1(c).
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 12.10.
"Available Commitment" means, as to any Lender at any time, an amount
equal to (a) such Lender's Commitment less (b) such Lender's Loans.
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"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 3.1(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
10.1(i).
"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 4.1 and Section 4.2 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 the Borrowers hereunder in an aggregate principal 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.
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"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.
"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 (as defined in the Existing Facility), 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.
"Default" means any of the events specified in Section 10.1 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.
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"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
Borrowers 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, 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 10.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
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<PAGE> 11
"Existing Facility" means that certain Credit Agreement dated June 18,
1999 by and among JLG Industries, Inc. and its Subsidiaries listed on Schedule 1
thereto, as Borrowers, the Lenders listed on Schedule 2 thereto, First Union
National Bank, as Administrative Agent, BankOne Michigan, as Syndication Agent,
and The Chase Manhattan Bank, as Documentation Agent, under which Borrowers may
borrow revolving credit loans and swingline loans and request the issuance of
letters of credit up to the maximum principal amount of Two Hundred Fifty
Million Dollars ($250,000,000) pursuant to the terms and conditions therein.
"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.
"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.
"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
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<PAGE> 12
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.
"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 a 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
3.1(b).
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"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 12.10.
"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.
"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 $3,000,000 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
LIBOR Rate = -----------------------------------------------
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 3.1(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.
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"Loan Documents" means, collectively, this Agreement, the Notes 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.
"Loans" means any revolving loan made to the Borrowers pursuant to
Section 2.1, and all such revolving loans collectively as the context requires;
"Loan" means any of such Loans.
"Material Adverse Effect" means, with respect to the Borrowers or any
of their Subsidiaries, a material adverse change since July 31, 1999 on the
properties, business, prospects, operations or condition (financial or
otherwise) of JLG and its Subsidiaries on a Consolidated basis or which 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, including
without limitation the Existing Facility; 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.
"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
made by the Borrowers payable to the order of each Lender, substantially in the
form of Exhibit A hereto, evidencing the Working Capital Facility, and any
amendments and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extensions thereof, in whole or in part;
"Note" means any of such Notes.
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"Notice of Account Designation" shall have the meaning assigned thereto
in Section 2.2(c).
"Notice of Borrowing" shall have the meaning assigned thereto in
Section 2.2(a).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 3.2.
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.3(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)
all payment and other obligations owing by the Borrowers to any Lender or the
Administrative Agent under any Hedging Agreement with any Lender (which such
Hedging Agreement is permitted hereunder), and (c) 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, or any of
the other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 6.2.
"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
3.11(b).
"Overdraft Facility" means the agreement evidencing the indebtedness of
JLG, Fulton International, Inc., JLG Equipment Services, Inc. and JLG
Manufacturing, LLC, in order to provide for banking overdraft protection and
other working capital needs, which agreement 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.
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<PAGE> 16
"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.
"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 12.10(d).
"Reimbursement Obligation" shall have the meaning assigned thereto in
the Existing Facility.
"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, director of treasury services or general
counsel of JLG or any other officer of
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<PAGE> 17
JLG designated in writing by any of the foregoing officers and reasonably
acceptable to the Administrative Agent.
"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.
"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
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<PAGE> 18
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.
"Taxes" shall have the meaning assigned thereto in Section 3.11(a).
"Termination Date" means the earliest of: (i) June 18, 2004; (ii) the
date of termination by the Borrowers pursuant to Section 2.5(a); or (iii) the
date of termination by the Administrative Agent on behalf of the Lenders
pursuant to Section 10.2(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 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.
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"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.
"Working Capital Facility" means the working capital facility
established pursuant to Article II hereof.
"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.
Section 1.2. 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.
Section 1.3. 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.
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(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.
ARTICLE II
WORKING CAPITAL FACILITY
Section 2.1. Loans.
Subject to the terms and conditions of this Agreement, each Lender
severally agrees to make 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 2.2; provided, that (a) the aggregate
principal amount of all outstanding Loans (after giving effect to any amount
requested) shall not exceed the Aggregate Commitment and (b) the principal
amount of outstanding Loans from any Lender to the Borrowers shall not at any
time exceed such Lender's Commitment. Each Loan by a Lender shall be in a
principal amount equal to such Lender's Commitment Percentage of the aggregate
principal amount of Loans requested on such occasion. Subject to the terms and
conditions hereof, the Borrowers may borrow, repay and reborrow Loans hereunder
until the Termination Date. The obligations of Borrowers under the Loans are and
shall be joint and several.
Section 2.2. Procedure for Advances of 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 (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 and (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, (C) whether such Loans are to be
LIBOR Rate Loans or Base Rate Loans, and (D) 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
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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.
(c) Disbursement of Loans. Not later than 2:00 p.m. (Philadelphia
time) on the proposed borrowing date, 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 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 2.2
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 3.7 hereof, the Administrative Agent shall not be
obligated to disburse the portion of the proceeds of any Loan requested pursuant
to this Section 2.2 to the extent that any Lender has not made available to the
Administrative Agent its Commitment Percentage of such Loan.
Section 2.3. Repayment of Loans.
(a) Repayment on Termination Date. The Borrowers shall repay the
outstanding principal amount of all Loans in full on the Termination Date,
together 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, the
Borrowers shall repay immediately upon notice from the Administrative Agent, by
payment to the Administrative Agent for the account of the Lenders, Loans in an
amount equal to such excess with such repayment applied first to the principal
amount of outstanding Loans. Each such repayment shall be accompanied by any
amount required to be paid pursuant to Section 3.9 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 notice with respect to Base
Rate 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 or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of such notice,
the
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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 and $3,000,000 or a whole multiple
of $1,000,000 in excess thereof with respect to LIBOR Rate Loans. Each such
repayment with respect to any LIBOR Rate Loan shall be accompanied by any amount
required to be paid pursuant to Section 3.9 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 3.9 hereof.
Section 2.4. Notes.
Each Lender's Loans and the obligation of the Borrowers to repay such
Loans shall be evidenced by a separate 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
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 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 3.1.
Section 2.5. 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 2.5
shall be accompanied by a payment of principal sufficient to reduce the
aggregate outstanding Loans of the Lenders after such reduction to the Aggregate
Commitment as so reduced. Any reduction of the Aggregate Commitment to zero
shall be accompanied by payment of all outstanding Obligations and shall result
in the termination of the Commitments and the Working Capital Facility. 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 3.9 hereof.
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Section 2.6. Termination of Working Capital Facility. The Working
Capital Facility shall terminate on the Termination Date.
Section 2.7. Use of Proceeds. The Borrowers shall use the proceeds of
the Loans to support working capital and general corporate purposes (excluding
acquisitions).
ARTICLE III
GENERAL LOAN PROVISIONS
Section 3.1. Interest.
(a) Interest Rate Options. Subject to the provisions of this
Section 3.1, at the election of the Borrowers, the aggregate principal balance
of (i) the 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 3.1(c);
provided that the LIBOR Rate shall not be available until three (3) Business
Days after the Closing Date. 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 2.2 or at the time a Notice of Conversion/Continuation
is given pursuant to Section 3.2. 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 3.1(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:
(i) 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;
(ii) 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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(iii) 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;
(iv) no Interest Period shall extend beyond the Termination
Date; and
(v) there shall be no more than four (4) LIBOR Rate Loans
outstanding at any time.
(c) Applicable Margin. The Applicable Margin provided for in
Section 3.1(a) with respect to the Loans (the "Applicable Margin") shall (i) on
the Closing Date through January 31, 2000, 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:
Level Leverage Ratio Applicable Margin
----- -------------- -----------------
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
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 3.1(d), in the event the Borrowers fail
to deliver such financial statements and certificate within the time required by
Section 6.1 hereof, the Applicable Margin may, at the discretion of the
Administrative Agent, be the highest Applicable Margin set forth above until the
delivery of such financial statements and certificate.
(d) Default Rate. Subject to Section 10.3, 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
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Loans, (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 December 31, 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.
Section 3.2. 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 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.
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Section 3.3. 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 at a rate per annum to be determined by
reference to the Leverage Ratio as follows times the then current Aggregate
Commitment:
Level Leverage Ratio Annual Facility Fee
----- -------------- -------------------
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
; provided, however, that the applicable annual facility fee from the Closing
Date through January 31, 2000 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
6.1 hereof, the applicable facility fee may, at the discretion of the
Administrative Agent, be 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 November 10, 1999.
Section 3.4. 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 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 10.1, 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 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
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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 Lenders' facility fee shall be made in like manner. 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 3.8, 3.9, 3.10, 3.11 or 12.2 shall be paid to the Administrative
Agent for the account of the applicable Lender. Subject to Section 3.1(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.
Section 3.5. 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 10.2, 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
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 Notes 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 Notes (pro rata in accordance with all such amounts due)
in that order.
Section 3.6. 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 Loans, 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 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 Loans 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.
Section 3.7. Nature of Obligations of Lenders Regarding Loans;
Assumption by the Administrative Agent. The obligations of the Lenders under
this Agreement to make the Loans
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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
2.2(c), 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.
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Section 3.8. 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 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 Loan 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:
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(i) 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 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 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
(ii) 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 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, 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 3.8(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.
Section 3.9. 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
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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.
Section 3.10. 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.
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Section 3.11. Taxes.
(a) Payments Free and Clear. Subject to compliance by Lenders with
Section 3.11(e), any and all payments by the Borrowers hereunder or under the
Notes 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 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 3.11) 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 3.11(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 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 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 3.11) 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.
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(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 12.1, 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.
(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 3.11 shall survive the payment in full of
the Obligations and the termination of the Commitments.
ARTICLE IV
CLOSING; CONDITIONS OF CLOSING AND BORROWING
Section 4.1. Closing. The closing shall take place at the offices of
Pepper Hamilton LLP at 10:00 a.m. on December __, 1999, or on such other
date as the parties hereto shall mutually agree.
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Section 4.2. Conditions to Closing and Initial Loans. The obligation of
the Lenders to close this Agreement and to make the initial Loan is subject to
the satisfaction of each of the following conditions:
(a) Executed Loan Documents. This Agreement and the Notes 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.
(i) Officer'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.
(ii) 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 this Agreement and the other Loan
Documents to which it is a party, and (D) each certificate required to be
delivered pursuant to Section 4.2(b)(iii).
(iii) 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.
(iv) Opinions of Counsel. The Administrative Agent shall have
received favorable opinions of counsel to each Borrower addressed to the
Administrative Agent
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and the Lenders with respect to such Borrower, the Loan Documents and such other
matters as the Lenders shall request.
(v) Tax Forms. The Administrative Agent shall have received
copies of the United States Internal Revenue Service forms required by Section
3.11(e) hereof.
(c) Lien Search. The Administrative Agent shall have received the
results of an updated 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.
(i) 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.
(ii) Amendment to the Existing Facility. The Borrowers shall
have obtained an amendment to the Existing Facility in form and substance
satisfactory to Administrative Agent, which permits the Borrowers to enter into
and perform the transactions contemplated by this Agreement and the other Loan
Documents under the terms of the Existing Facility.
(iii) 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 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.
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(iv) No Event of Default. No Default or Event of Default shall
have occurred and be continuing.
(f) Financial Matters.
(i) 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.
(ii) 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 5.1(q) hereof (Solvency), and (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.
(iii) Payment at Closing; Fee Letters. The Borrowers shall have
paid the fees set forth or referenced in Section 3.3 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 3.3(b).
(g) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing from the Borrowers in accordance with Section
2.2(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.
(ii) 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.
(iii) Existing Debt. The documentation evidencing: (i) Debt
permitted by Section 9.1(c) hereof and existing on the Closing Date and (ii) the
PIDA Debt, shall be satisfactory to Administrative Agent.
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(iv) Payoff Letter. A payoff letter from First Union National
Bank evidencing payment in full of all amounts outstanding under the Promissory
Note dated December 2, 1999 by Borrowers in favor of First Union in the maximum
principal amount of $25,000,000.
(v) Amendment to Overdraft Facility. An amendment to the
Overdraft Facility in form and substance satisfactory to the Administrative
Agent.
(vi) 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.
Section 4.3. Conditions to All Loans. The obligations of the Lenders to
make any Loans 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 V 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 on the borrowing date with respect to such
Loan or after giving effect to the Loans to be made 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.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
Section 5.1. Representations and Warranties. To induce the
Administrative Agent and Lenders to enter into this Agreement and to induce the
Lenders to make Loans, each Borrower hereby represents and warrants to the
Administrative Agent and Lenders both before and after giving effect to the
transactions contemplated hereunder 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
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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 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 5.1(a).
(b) Ownership; Investments. Each Subsidiary of any Borrower as of
the Closing Date is listed on Schedule 5.1(b). As of the Closing Date, except as
set forth on Schedule 5.1(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 5.1(b).
No Borrower has any Subsidiaries or Affiliates, or investments in or loans to
any Person other than those Persons listed on Schedule 5.1(b) or loans or
investments permitted by Section 9.4.
(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
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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.
(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.
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(h) Environmental Matters. Except with respect to any noncompliance
with the following that would not have a Material Adverse Effect,
(i) 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;
(ii) 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);
(iii) 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;
(iv) 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;
(v) 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
(vi) 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.
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(i) ERISA.
(i) 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 5.1(i);
(ii) 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 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 5.1(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.
(iii) 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;
(iv) 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;
(v) No Termination Event has occurred or is reasonably expected
to occur; and
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(vi) 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.
(vii) Except as set forth on Schedule 5.1(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.
(viii) 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
(ix) Except as set forth on Schedule 5.1(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 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 5.1(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 5.1(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
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true and complete copy of each Material Contract required to be listed on
Schedule 5.1(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 5.1(m). Except as set forth in Schedule 5.1(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 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 the Consolidated balance sheet
of JLG and its Subsidiaries as of July 31, 1999 and the related statements of
income and retained earnings and cash flows for the Fiscal Years then ended (the
"Audited JLG Financial Statements") 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.
(p) No Material Adverse Change. (i) Since July 31, 1999, 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, that 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 limitation contingent liabilities, (ii) the present fair
salable value of
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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 5.1(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 9.3. 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 9.3
hereof.
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(t) Debt and Guaranty Obligations. Except for such Debt and
Guaranty Obligations otherwise permitted pursuant to this Agreement, Schedule
5.1(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 5.1(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.
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(x) Year 2000 Compliance. Borrowers and Subsidiaries have commenced
to conduct a review and assessment of their material computer systems and
applications, micro-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 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
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 no Borrower knows of any claim for any fees or commissions, in
connection with Borrowers' obtaining the Commitment or the Loans from Lenders,
except those provided herein.
(z) 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).
(aa) 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 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.
Section 5.2. Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article V 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.
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ARTICLE VI
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 12.13 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:
Section 6.1. 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 or director of treasury services 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
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.
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Section 6.2. Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 6.1 (a) or (b), a certificate of
the chief financial officer or director of treasury services of JLG in the form
of Exhibit F attached hereto (an "Officer's Compliance Certificate").
Section 6.3. Accountants' Certificate. At each time financial
statements are delivered pursuant to Section 6.1(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.
Section 6.4. 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.
Section 6.5. 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:
(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
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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 9.3),
(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 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 5.1 inaccurate in any material respect as of the date it was made.
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Section 6.6. 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 VI 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.
ARTICLE VII
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 12.13, each Borrower will, and will cause each
Subsidiary to:
Section 7.1. Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 9.5, 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.
Section 7.2. Maintenance of Property. Except for dispositions permitted
by Section 9.6(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.
Section 7.3. 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.
Section 7.4. 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.
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Section 7.5. 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 7.5 in good faith so long as
adequate reserves are maintained with respect thereto in accordance with GAAP.
Section 7.6. 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.
Section 7.7. Environmental Laws. In addition to and without limiting
the generality of Section 7.6, (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.
Section 7.8. Compliance with ERISA. In addition to and without limiting
the generality of Section 7.6, (a) comply in all material respects with all
applicable provisions of ERISA and the 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
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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.
Section 7.9. Compliance With Agreements. Comply in all material
respects with each term, condition and provision of any Material Contract;
provided, that a Borrower or Subsidiary may contest any such Material Contract
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
Material Contract.
Section 7.10. 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.
Section 7.11. 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.
Section 7.12. 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
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requested by the Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
Section 7.13. 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.
Section 7.14. 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.
Section 7.15. 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 5.1(x), and at the request of
Lenders, Borrowers shall provide additional information as reasonably requested
by Lenders regarding their Year 2000 Compliance.
Section 7.16. 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 7.16 shall survive any termination of this Agreement or the
Commitment and the repayment of the Obligations.
Section 7.17. 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 and the other Loan Documents.
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Section 7.18. Subsequent Credit Terms.
(a) Notify Administrative Agent in writing not less than five
(5) Business Days prior to its entering into any amendment or modification of
the Existing Facility, pursuant to which any Borrower or Subsidiary agrees to
covenants which are more restrictive to such Borrower or Subsidiary than those
contained in Articles VI, VII, VIII and IX hereof. Upon entering into any such
amendment or modification, the corresponding covenants, terms and conditions of
this Agreement are and shall be deemed to be automatically and immediately
amended to conform with and to include the applicable covenants, terms and/or
conditions of such other agreement; provided, however, that the foregoing shall
not be applicable to or be deemed to affect any provision of this Agreement to
the extent that any amendment or modification is less restrictive than the
corresponding provisions of this Agreement.
(b) Each Borrower hereby agrees promptly to execute and
deliver any and all such documents and instruments and to take all such further
actions as Agent may, in its sole reasonable discretion, deem necessary or
appropriate to effectuate the provisions of this Section 7.18.
ARTICLE VIII
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 12.13 hereof, JLG and its Consolidated Subsidiaries will not:
Section 8.1. Leverage Ratio. As of any fiscal quarter end, permit the
Leverage Ratio to be greater than 3.0 to 1.0.
Section 8.2. Interest Coverage Ratio. As of any fiscal quarter end,
permit the Interest Coverage Ratio to be less than 4.0 to 1.0.
Section 8.3. 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.
ARTICLE IX
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 12.13 hereof, each Borrower will not and will not permit any of
its Subsidiaries to:
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Section 9.1. Limitations on Debt. Create, incur, assume or suffer to
exist any Debt except:
(a) the Obligations;
(b) Debt incurred in connection with the Existing Facility;
(c) unsecured Debt not exceeding, at any time, $50,000,000 in
aggregate principal amount, on a pari passu basis with the Obligations, which
agreement(s) evidencing such Debt shall not contain covenants or events of
default more restrictive than those contained herein;
(d) Debt incurred in connection with a Hedging Agreement with a
counterparty and upon terms and conditions (including without limitation
interest rate terms and conditions) reasonably satisfactory to the
Administrative Agent.
(e) Subordinated Debt;
(f) Debt existing on the Closing Date and not otherwise permitted
under this Section 9.1, as set forth on Schedule 5.1(t) and the renewal and
refinancing (but not the increase of the aggregate principal
amount thereof) thereof;
(g) 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 such Subsidiaries, Five Million Dollars ($5,000,000);
(h) 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;
(i) the PIDA Debt, in an aggregate principal amount not to exceed
$3,615,198 on any date of determination;
(j) 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
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(k) Guaranty Obligations of Debt permitted under clauses (a)
through (j), but not clause (e), of this Section 9.1 and under Section 9.2;
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.
Section 9.2. 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 9.1(k);
(c) Guaranty Obligations incurred by any Borrower or Subsidiary in
connection with Debt of a Subsidiary pursuant to Subsection 9.1(g) hereof;
(d) existing Guaranty Obligations described on Schedule 5.1(t); and
(e) Guaranty Obligations permitted by Section 9.4(d).
Section 9.3. 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'
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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 9.3 and in
existence on the Closing Date and described on Schedule 9.3; and
(f) Liens securing Debt permitted under Section 9.1(h); 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.
Section 9.4. 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 9.4; 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
9.4 described on Schedule 9.4;
(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
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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) prior to the Termination Date (as such term is defined in
the Existing Facility), such acquisition is permitted under Section 10.4(c) of
the Existing Facility and
(ii) on and after the Termination Date (as such term is defined
in the Existing Facility), (A) 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 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 VIII 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; (B) 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 (C) 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.
Section 9.5. 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:
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(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 under Section 9.4(c) hereof; and
(c) any Wholly-Owned Subsidiary of a Borrower may wind-up into a
Borrower or any other Wholly-Owned Subsidiary of a Borrower.
Section 9.6. 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;
(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:
(i) such leases are not permitted by Subsection 9.6(e) hereof;
and
(ii) the value of the leases reflected on JLG and its
Subsidiaries consolidated financial statements does not exceed One Hundred
Million Dollars ($100,000,000)
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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.
Section 9.7. 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.
Section 9.8. 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, 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.
Section 9.9. 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.
Section 9.10. Amendments; Payments and Prepayments of Subordinated
Debt. 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.
Section 9.11. Restrictive Agreements. Except as set forth in the
Existing Facility, enter into any Debt which contains any negative pledge on
assets or any covenants more restrictive than the provisions of Articles VII,
VIII and IX 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.
Section 9.12. 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.
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ARTICLE X
DEFAULT AND REMEDIES
Section 10.1. 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. The Borrowers shall
default in any payment of principal of any Loan or Note 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 or Note 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.
(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 6.1, 6.2 or 6.5(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 VIII or IX 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
10.1) 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.
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(g) Debt Cross-Default. Any Borrower or any Subsidiary shall (i)
default in the payment of any Debt (other than the Notes), 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) 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.
(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
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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 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
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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.
Section 10.2. 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 and the Notes 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 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 terminate the Working Capital Facility; provided,
that upon the occurrence of an Event of Default specified in Section 10.1(j) or
(k), the Working Capital Facility shall be automatically terminated and all
Obligations (other than obligations owing under any Hedging Agreement) shall
automatically become due and payable.
(b) 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.
Section 10.3. 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
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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.
ARTICLE XI
THE ADMINISTRATIVE AGENT
Section 11.1. 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 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 XI shall be deemed to refer to the
Administrative Agent solely in its capacity as Administrative Agent and not in
its capacity as a Lender.
Section 11.2. 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.
Section 11.3. 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
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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.
Section 11.4. 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 accordance with Section 12.10 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.
Section 11.5. 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.
Section 11.6. 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
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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 Subsidiaries and made
its own decision to make its Loans 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.
Section 11.7. 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) 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 11.7 shall survive the
payment of the Notes, and all other amounts payable hereunder and the
termination of this Agreement.
Section 11.8. 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
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were not an Administrative Agent hereunder. With respect to any Loans made or
renewed by it and any Note issued to 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.
Section 11.9. 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 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 11.9 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.
ARTICLE XII
MISCELLANEOUS
Section 12.1. 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.
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(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
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
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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
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(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.
Section 12.2. 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 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 Working Capital
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.
Section 12.3. 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 12.10 or 12.11 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
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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 10.2 and although such Obligations shall be
contingent or unmatured.
Section 12.4. Governing Law. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be governed
by, construed and enforced in accordance with the laws of the Commonwealth of
Pennsylvania, without reference to the conflicts or choice of law principles
thereof.
Section 12.5. 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 12.1. Nothing in this Section 12.5 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.
Section 12.6. 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
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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.
Section 12.7. 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, 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.
Section 12.8. 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.
Section 12.9. 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.
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Section 12.10. Successors and Assigns.
(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 Loans at the time owing
to it and the Notes held by it); provided that:
(i) 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;
(ii) 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.
(iii) 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;
(iv) 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
(v) 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 upon any assignment
by a Lender to an Affiliate thereof.
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
68
<PAGE> 75
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
Loans 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.
(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:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the Register;
(iii) give prompt notice thereof to the Lenders and the
Borrowers; and
(iv) 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.
69
<PAGE> 76
Section 12.11. 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 Loans 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;
(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, 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.
Section 12.12. 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
70
<PAGE> 77
Section 12.10 or 12.11, 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.
Section 12.13. Certain Pledges or Assignments; Consents. 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, (b) extend the originally
scheduled time or times of payment of the principal of any Loan or the time or
times of payment of interest on any Loan, (c) reduce the rate of interest or
fees payable on any Loan, (d) reduce the principal amount of any Loan, (e)
permit any subordination of the principal or interest on any Loan, (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 12.13 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 XI shall be made without the written
consent of the Administrative Agent.
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 Working Capital 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 XII 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.
71
<PAGE> 78
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.
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.
Section 12.14. 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.
Section 12.15. Covenants Independent. The Borrowers expressly
acknowledge and agree that each covenant contained in Articles VII, VIII or IX,
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 VII, VIII or IX if, before or after giving effect to such
transaction or act, the Borrowers shall or would be in breach of any other
covenant contained in Articles VII, VIII or IX.
72
<PAGE> 79
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.
- ------
By:_________________________ By:______________________________
Name: Thomas D. Singer Name: Charles H. Diller, Jr.
Title: Assistant Secretary Title: Executive Vice President
& Chief Financial Officer
Attest: FULTON INTERNATIONAL, INC.
- ------
By:_________________________ By:______________________________
Name: Thomas D. Singer Name: Charles H. Diller, Jr.
Title: Secretary Title: President
Attest: JLG EQUIPMENT SERVICES, INC.
- ------
By:_________________________ By:______________________________
Name: Thomas D. Singer Name: Charles H. Diller, Jr.
Title: Assistant Secretary Title: Secretary & Treasurer
Attest: JLG MANUFACTURING, LLC
- ------ By: JLG INDUSTRIES, INC.,
Authorized Member
By:_________________________ By:____________________________
Name: Thomas D. Singer Name: Charles H. Diller, Jr.
Title: Assistant Secretary Title: Executive Vice President &
Chief Financial Officer
Attest: GRADALL INDUSTRIES, INC.
- ------
By:_________________________ By:______________________________
Name: Thomas D. Singer Name: Charles H. Diller, Jr.
Title: Assistant Secretary Title: Vice President
[EXECUTIONS CONTINUED]
<PAGE> 80
Attest: THE GRADALL COMPANY
- ------
By:_________________________ By:______________________________
Name: Thomas D. Singer Name: Charles H. Diller, Jr.
Title: Assistant Secretary Title: Vice President
Attest: THE GRADALL ORRVILLE COMPANY
- ------
By:_________________________ By:______________________________
Name: Thomas D. Singer Name: Charles H. Diller, Jr.
Title: Assistant Secretary Title: Vice President
FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By:______________________________
Name:
Title:
BANK ONE, MICHIGAN, individually and
in its capacity as Syndication Agent
hereunder
By:______________________________
Name:
Title:
THE CHASE MANHATTAN BANK, individually
and in its capacity as Documentation Agent
hereunder
By:______________________________
Name:
Title:
[EXECUTIONS CONTINUED]
<PAGE> 81
ALLFIRST BANK, f/k/a The First National Bank
of Maryland
By:______________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:______________________________
Name:
Title:
HARRIS TRUST AND SAVINGS BANK
By:______________________________
Name:
Title:
NATIONAL CITY BANK OF PENNSYLVANIA
By:_______________________________
Name:
Title:
COMERICA BANK
By:_______________________________
Name:
Title:
MELLON BANK, N.A.
By:_______________________________
Name:
Title:
[EXECUTIONS CONTINUED]
<PAGE> 82
SUNTRUST BANK, ATLANTA
By:_______________________________
Name:
Title:
WACHOVIA BANK, N.A.
By:_______________________________
Name:
Title:
BANK HAPOALIM B.M.
By:_______________________________
Name:
Title:
BANKBOSTON, N.A.
By:_______________________________
Name:
Title:
FLEET NATIONAL BANK
By:_______________________________
Name:
Title:
THE BANK OF NEW YORK
By:_______________________________
Name:
Title:
[EXECUTIONS CONTINUED]
<PAGE> 83
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:_______________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:_______________________________
Name:
Title:
ERSTE BANK
By:_______________________________
Name:
Title:
MICHIGAN NATIONAL BANK
By:_______________________________
Name:
Title:
<PAGE> 1
Exhibit 15
The Board of Directors
JLG Industries, Inc.
McConnellsburg, PA 17233
We are aware of the incorporation by reference in the Registration Statements
Form S-8, No. 33-60366; Form S-8, No. 33-61333; and Form S-8, No. 33-75746; of
JLG Industries, Inc. of our report dated February 15, 2000, relating to the
unaudited condensed consolidated interim financial statements of JLG Industries,
Inc. which are included in its Form 10-Q for the quarter ended January 31, 2000.
Pursuant to Rule 436(c) of the Securities Act of 1933 our report is not a part
of the registration statement prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ Ernst & Young LLP
Baltimore, Maryland
February 18, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUL-31-2000
<PERIOD-END> JAN-31-2000
<CASH> 8,375
<SECURITIES> 0
<RECEIVABLES> 192,279
<ALLOWANCES> 3159
<INVENTORY> 198,445
<CURRENT-ASSETS> 414,385
<PP&E> 157,227
<DEPRECIATION> 57,013
<TOTAL-ASSETS> 710,958
<CURRENT-LIABILITIES> 129,538
<BONDS> 0
0
0
<COMMON> 8,864
<OTHER-SE> 278,923
<TOTAL-LIABILITY-AND-EQUITY> 710,958
<SALES> 424,863
<TOTAL-REVENUES> 424,863
<CGS> 333,695
<TOTAL-COSTS> 387,013
<OTHER-EXPENSES> (63)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 8,900
<INCOME-PRETAX> 25,925
<INCOME-TAX> 9,592
<INCOME-CONTINUING> 16,333
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 16,333
<EPS-BASIC> .37
<EPS-DILUTED> .36
</TABLE>
<PAGE> 1
Exhibit 99
CAUTIONARY STATEMENTS PURSUANT TO THE SECURITIES
LITIGATION REFORM ACT OF 1995
The Company wishes to inform its investors of the following important factors
that in some cases have affected, and in the future could affect, the Company's
results of operations and that could cause such future results of operations to
differ materially from those expressed in any forward looking statements made by
or on behalf of the Company. Disclosure of these factors is intended to permit
the Company to take advantage of the "safe harbor" provisions of the Private
Securities Litigation Reform Act of 1995. Many of these factors have been
discussed in prior SEC filings by the Company. Though the Company has attempted
to list comprehensively these important cautionary factors, the Company wishes
to caution investors that other factors may in the future prove to be important
in affecting the Company's results of operations.
Demand Variability -- Demand for new equipment manufactured by the Company tends
to be cyclical, responding historically to varying levels of construction and
industrial activity, principally in the United States and, to a lesser extent,
in other industrialized nations. Other factors affecting demand include the
availability and cost of financing for equipment purchases, the market
availability of used equipment and alternatives to purchases such as equipment
leases directly from the Company. Company management regularly monitors these
and other factors that affect demand for the Company's equipment. However,
predicting levels of demand beyond a short term is necessarily imprecise and
demand may at times change dramatically.
Consolidating Customers Base; Rental Companies -- The principal customers for
the Company's new equipment are independent equipment rental companies that rent
the Company's products and provide service support to equipment users. In recent
years, growth in sales to equipment rental companies has outpaced growth in
direct sales to end-users, resulting in equipment rental companies comprising a
larger share of total sales. At the same time, there has been substantial
consolidation in ownership among rental companies, resulting in a more limited
number of major customers comprising a substantial portion of total sales. A
change in purchasing decisions or ordering patterns by any of these major
customers could materially affect overall demand for the Company's products and
the Company's financial performance. More generally, during recessionary
conditions, demand for equipment by equipment rental companies typically
declines more sharply than demand for equipment purchased by end-users. The
Company believes it is a preferred supplier to certain equipment rental
companies whose continued business depends upon a package of products and
services including financing, e-commerce ordering, just-in-time delivery,
enhanced warranties, used equipment trade-ins and other customer services and
after market support.
Competition; Continued Innovation -- The Company faces substantial competition
in the market for its products. Product line expansion by existing competitors
and potential entry by new competitors also may affect the Company's market
position. Throughout its history, the Company has devoted substantial resources
to product development and has generally succeeded in being a market leader in
introducing new products or incorporating new features and functions into
existing products. Successful product innovation by competitors that reach the
market prior to comparable innovation by the Company or that are amenable to
patent protection may adversely affect the Company's financial performance.
<PAGE> 2
Product Liability -- Use of the Company's products involves risks of personal
injury and property damage and liability exposure for the Company. The Company
insures against this liability through a combination of a self-insurance
retention and catastrophic insurance coverage in excess of the retention. The
Company monitors all incidents of which it becomes aware involving the use of
its products that result in personal injury or property damage and establishes
accrued liability reserves on its financial statements based on liability
estimates with respect to claims arising from such incidents. Future or
unreported incidents involving personal injury or property damage or
unanticipated variances between actual liabilities for known incidents and
Company estimates may adversely affect the Company's financial performance.
Manufacturing Capacity; Production Levels -- Given the variability of demand,
the Company must periodically expand and contract its manufacturing facilities.
Capital investment to acquire additional manufacturing facilities involves
significant risks. Excess manufacturing capacity adversely affects profitability
because higher fixed costs are spread over a lower sales volume. Insufficient
capacity adversely affects profitability as long lead-times required to fill
customer orders may impair the Company's ability to compete for new business and
subcontracting costs incurred to increase capacity affect profitability. To
ensure product availability, the Company sometimes manages inventory levels and
its supply chain by maintaining relatively constant production levels. This
practice could increase inventories and associated carrying costs which could
adversely affect the Company's financial performance.
Availability of Product Components -- The Company obtains raw materials and
certain manufactured components from third-party suppliers. To reduce material
costs and inventories, the Company relies on supplier partnership arrangements
with preferred vendors as a sole source for "just-in-time" delivery of many raw
materials and manufactured components. Because the Company maintains limited raw
material inventories, even brief unanticipated delays in delivery by suppliers,
including those due to capacity constraints, labor disputes, impaired financial
condition of suppliers, weather emergencies or other natural disasters, may
adversely affect the Company's ability to satisfy its customers on a timely
basis and thereby affect the Company's financial performance.
Foreign Sales; Currency Risks -- A growing component of the Company's business
has been export sales to Europe, Australia, Latin America, Africa and Asia.
Maintenance and continued growth of this segment of the Company's business may
be affected by changes in trade, monetary and fiscal policies, laws and
regulations of the United States and other trading nations and by foreign
currency exchange rate fluctuations and the ability or inability of the Company
to hedge against exchange rate risks.
Mergers and Acquisitions -- The Company intends to pursue strategic acquisitions
as a means of increasing sales and earnings and promoting shareholder value.
Acquisitions generally may involve a number of risks that may affect the
Company's financial performance including increased leverage, diversion of
management resources, possible shareholder dilution, assumption of liabilities
of acquired businesses and corporate culture conflicts. In addition, specific
acquisitions may involve other risks unique to the acquired business. Finally,
there is no assurance that the Company will be able to conclude satisfactory
agreements to acquire any businesses as a means to increase sales and earnings.
<PAGE> 3
Unanticipated Litigation -- The Company occasionally has faced unanticipated
intellectual property and shareholder litigation which has involved significant
unbudgeted expenditures. The costs and other effects of any future,
unanticipated legal or administrative proceedings may be significant.
Dependence Upon Key Personnel; Management Recruitment -- The Company believes
that it has developed a strong management team, which intends to continue the
Company's growth and profitability. However, the loss or unavailability of
certain key management personnel and the inability to attract, assimilate or
retain additional highly qualified employees in the future could adversely
affect the Company's business and prospects.
