AMENDMENT NO. 2 TO
AMENDED AND RESTATED CREDIT AGREEMENT
This
Amendment No. 2 to Amended and Restated Credit Agreement (this
“ Amendment ”) is entered into as of June __,
2009 by and among The Manitowoc Company, Inc., a Wisconsin
corporation (the “ Borrower ”), the Subsidiary
Borrowers signatory hereto (together with the Borrower, the “
Borrowers ”), JPMorgan Chase Bank, N.A., individually
and as administrative agent (the “ Administrative
Agent ”) and the other financial institutions signatory
hereto.
RECITALS
A.
The Borrowers, the Administrative Agent and the Lenders are party
to that certain Amended and Restated Credit Agreement dated as of
August 25, 2008, as amended (as so amended, the “ Credit
Agreement ”). Unless otherwise specified herein,
capitalized terms used in this Amendment shall have the meanings
ascribed to them by the Credit Agreement.
B.
The Borrowers, the Administrative Agent and the undersigned Lenders
wish to amend the Credit Agreement on the terms and conditions set
forth below.
Now,
therefore, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as
follows:
1.
Amendments to Credit Agreement . Upon the “Effective
Date” (as defined below), the Credit Agreement shall be
amended as follows:
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(a)
The defined term “Adjusted LIBO Rate” in Section 1.01
of the Credit Agreement is hereby deleted and replaced with the
following:
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“
Adjusted LIBO Rate ” means, with respect to any
Eurocurrency Borrowing (or, as applicable, for purposes of
determining the Alternate Base Rate with respect to any ABR
Borrowing)> for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period (or, in the case of a
Eurocurrency Revolving Borrowing or a Eurocurrency Term X
Borrowing, as applicable, for a one month Interest Period or a two
month Interest Period, as applicable, for whichever of a one month
Interest Period, two month Interest Period or three month Interest
Period would result in the highest Adjusted LIBO Rate) multiplied
by (b) the Statutory Reserve Rate; provided that, with respect to
any Eurocurrency Borrowing denominated in a Foreign Currency, the
Adjusted LIBO Rate shall mean the LIBO Rate.
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(b)
The defined term “Applicable Prepayment Percentage” in
Section 1.01 of the Credit Agreement is hereby deleted and replaced
with the following:
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“
Applicable Prepayment Percentage ” means (a) in the
case of a Prepayment Event described in clause (c) of the
definition of the term “Prepayment Event” (but only
with respect to the Term A Loan and Term B Loan) or a prepayment
required by Section 2.12(d), a percentage equal to (i) 85% at any
time when the Consolidated Total Leverage Ratio is greater than
5.0:1.0, (ii) 75% at any time when the Consolidated Total Leverage
Ratio is less than or equal to 5.0:1.0 but greater than 4.0:1.0,
(iii) 50% at any time when the Consolidated Total Leverage Ratio is
less than or equal to 4.0:1.0 but greater than or equal to 3.0:1.0,
and (iv) 0% at any other time, and (b) in the case of any other
Prepayment Event, 100%.
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(c)
The defined term “Applicable Rate” in Section 1.01 of
the Credit Agreement is hereby deleted and replaced with the
following:
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“
Applicable Rate ” means, for any day, (a) with respect
to any ABR Loan or Eurocurrency Loan (other than the Term B Loan),
or with respect to the commitment fees payable hereunder, as the
case may be, the applicable rate per annum set forth in Schedule
1.01 under the caption “ABR Spread”,
“Eurocurrency Spread” or “Commitment Fee
Rate”, as the case may be, based upon the Consolidated Total
Leverage Ratio; provided, however, that for purposes of calculating
the Applicable Rate with respect to ABR Loans bearing interest at
the rate determined pursuant to clause (d) of the definition of
Alternate Base Rate, the ABR Spread shall be additionally increased
by 0.50% and (b) with respect to the Term B Loan, (i) 4.50% per
annum with respect to Eurocurrency Loans and (ii) 3.50% per annum
with respect to ABR Loans; provided, however, that such rates with
respect to the Term B Loan shall be 5.00% per annum with respect to
Eurocurrency Loans and 4.00% per annum with respect to ABR Loans
during any time when Level V Status (as defined on Schedule 1.01)
exists, with such status being determined as set forth on Schedule
1.01.
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(d)
The defined term “Consolidated EBIT” in Section 1.01 of
the Credit Agreement is hereby deleted and replaced with the
following:
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“
Consolidated EBIT ” means, for any period,
Consolidated Net Income from continuing operations for such period
before deducting therefrom Consolidated Interest Expense for such
period (to the extent deducted in arriving at Consolidated Net
Income for such period) and provision for taxes based on income
(including foreign withholding taxes imposed on interest or
dividend payments and state single business, unitary or similar
taxes imposed on net income) that were included in arriving at
Consolidated Net Income for such period and without giving effect,
without duplication, to (a) any extraordinary gains, extraordinary
losses or other extraordinary non-cash charges or benefits, (b) any
charges arising out of prepayments of the Senior Notes, (c) any
gains or losses from sales of assets other than from sales of
inventory in the ordinary course of business, (d) fees, expenses
and charges incurred or recorded prior to December 31, 2008 in
connection with the Acquisition, the Transactions or Divestiture
Transactions up to an aggregate amount of $25,000,000, (e) fees,
expenses and charges incurred or recorded after December 31, 2008
and prior to December 31, 2009 in connection with Divestiture
Transactions or (f) non-recurring cash severance and non-recurring
cash restructuring charges (other than in connection with the
Acquisition, the Transactions or Divestiture Transactions) incurred
or recorded (i) after September 30, 2008 and on or prior to March
31, 2009 in an aggregate amount up to $25,400,000 and (ii) after
March 31, 2009 and on or prior to September 30, 2010 in an
aggregate amount up to $15,000,000.
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(e)
The defined term “Interest Period” in Section 1.01 of
the Credit Agreement is hereby amended by adding the following as
the ultimate sentence thereof:
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Notwithstanding
the foregoing, after June __, 2009, the Borrower shall not be
permitted to elect new one month Interest Periods or two month
Interest Periods with respect to Eurocurrency Term A
Borrowings.
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(f)
The defined term “Offsetting Cash Amount” in Section
1.01 of the Credit Agreement is hereby deleted and replaced with
the following:
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“
Offsetting Cash Amount ” means the aggregate stated
balance sheet amount of cash, Cash Equivalents and Foreign Cash
Equivalents of the Borrower and its Wholly-Owned Domestic
Subsidiaries (excluding any portion thereof which is subject to a
Lien in favor of a Person other than the Collateral Agent or is
otherwise restricted), but shall not exceed
$100,000,000.
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(g)
Clause (d) of the defined term “Prepayment Event” in
Section 1.01 of the Credit Agreement is hereby deleted and replaced
with the following:
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(d)
the incurrence by any
Borrower or any Subsidiary of any Indebtedness for borrowed money,
other than Indebtedness permitted under Section 6.01 (except
(x) Section 6.01(j) to the extent that after giving effect to the
incurrence of such Indebtedness (I) the Consolidated Total Leverage
Ratio is greater than 3.50 to 1.00 and (II) the aggregate
outstanding amount of Receivables Indebtedness exceeds $150,000,000
(but only an amount equal to the portion of such Receivables
Indebtedness in excess of $150,000,000 shall be required to be
prepaid), (y) Section 6.01(p) to the extent that after giving
effect to the incurrence of such Indebtedness the Consolidated
Senior Leverage Ratio is greater than or equal to 3.50 to 1.00 (but
only an amount equal to the portion of the incurrence resulting in
such excess shall be required to be prepaid) and (z) Section
6.01(q)(i)).
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(h)
The defined term “Term A Loan” in Section 1.01 of the
Credit Agreement is hereby amended by deleting the phrase
“and Section 2.09(d)” therein.
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(i)
Section 1.01 of the Credit Agreement is amended by adding the
following definitions in appropriate alphabetical order:
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“
Capital Expenditures ” means, without duplication, any
expenditure or commitment to expend money for any purchase or other
acquisition of any asset which would be classified as a fixed or
capital asset on a consolidated balance sheet of the Borrower and
its Subsidiaries prepared in accordance with GAAP, but in no event
shall Capital Expenditures include operating leases.
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“
Consolidated Senior Secured Indebtedness ” means, at
any time, the amount of all Consolidated Senior Indebtedness at
such time, less the aggregate principal amount of all such
Indebtedness outstanding at such time which is not secured (with
Indebtedness of the kind described in clause (j) of Indebtedness
being deemed secured).
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“
Consolidated Senior Secured Leverage Ratio ” means, at
any time, the ratio of (a) Consolidated Senior Secured
Indebtedness at such time to (b) Consolidated EBITDA for the four
fiscal quarters of the Borrower then most recently
ended.
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(j)
Clause (i) of Section 2.06(b) of the Credit Agreement is hereby
deleted and replaced with the following:
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(i)
the LC Exposure shall not exceed $125,000,000,
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(k)
The section heading of Section 2.09 of the Credit Agreement is
hereby amended by deleting the phrase “; Increase of
Commitments”.
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(l)
The second sentence of Section 2.09(a) of the Credit Agreement is
hereby amended by deleting the parenthetical therein.
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(m)
Section 2.09(d) of the Credit Agreement is hereby
deleted.
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(n)
The first sentence of Section 2.11(a) of the Credit Agreement is
hereby amended by deleting the parenthetical therein.
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(o)
Clause (y) of Section 5.01(c) of the Credit Agreement is hereby
deleted and replaced with the following:
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(y)
demonstrating compliance
with Sections 6.07, 6.08, 6.15, 6.16, 6.20 and, commencing with the
fiscal quarter ending June 30, 2011, 6.21,
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(p)
Section 5.01 of the Credit Agreement is hereby amended by deleting
the word “and” at the conclusion of subsection 5.01(g),
replacing the “.” at the conclusion of subsection
5.01(h) with “; and” and adding a new subsection
5.01(i) as follows:
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(i)
upon the request of the Administrative Agent or the Required
Lenders, within 30 days after the end of each fiscal month of the
Borrower (other than a fiscal month ending as of the end of a
fiscal quarter of the Borrower), its consolidated balance sheet and
related statements of operations, stockholders’ equity and
cash flows as of the end of and for such fiscal month and the then
elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of)
the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and
its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes.
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(q)
Section 6.01(i) of the Credit Agreement is hereby deleted and
replaced with the following:
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(i)
Indebtedness of Foreign Subsidiaries of the Borrower under lines of
credit to any such Foreign Subsidiary from Persons other than the
Borrower or any of its Subsidiaries, the proceeds of which
Indebtedness are used for such Foreign Subsidiary’s working
capital and other general corporate purposes; provided that
the aggregate principal amount of all such Indebtedness outstanding
at any time for all such Foreign Subsidiaries (excluding
Indebtedness set forth on Schedule 6.01 and refinancings thereof by
the applicable Subsidiary or another Subsidiary in the same country
so long as such refinancings do not increase the amount of the
applicable Indebtedness nor provide security not applicable to such
scheduled Indebtedness, except to the extent secured and/or
guaranteed by the Security Documents and/or the other applicable
Credit Documents) shall not exceed $50,000,000;
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(r)
Section 6.01(p) of the Credit Agreement is hereby deleted and
replaced with the following:
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(p)
additional unsecured Indebtedness incurred by the Borrower and the
Subsidiary Guarantors (other than Indebtedness of the type
described in Section 6.01(n)(z)); provided that (i) no
Default exists at the time of its incurrence or would result
therefrom and ( ii ) such Indebtedness shall have a Weighted
Average Life to Maturity which is at least six months after the
latest scheduled Loan maturity date under this Agreement and shall
be on terms no less favorable to the Lenders than the terms of the
Senior Note Documents; provided , however , that
Indebtedness may be incurred pursuant to this clause (p) only if at
the time of its incurrence the Term X Loan has been paid in
full;
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(s)
The first sentence of Section 6.04 of the Credit Agreement is
hereby deleted and replaced with the following:
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The Borrower
will not, and (on or after the Initial Borrowing Date) will not
permit any of its Subsidiaries to, declare or make, or agree to pay
or make, directly or indirectly, any Restricted Payment, except (a)
the Borrower may declare and pay dividends with respect to its
Equity Interests payable solely in additional shares of its common
stock, (b) Subsidiaries may declare and pay dividends ratably with
respect to their Equity Interests, (c) the Borrower may make
Restricted Payments pursuant to and in accordance with stock option
plans or other benefit plans for directors, management or employees
of the Borrower and its Subsidiaries and (d) so long as no Default
has occurred and is continuing or would result therefrom, then (i)
at any time when the Consolidated Total Leverage Ratio is less than
2.00 to 1.00 (both immediately before and immediately after the
making of such Restricted Payment) the Borrower may make Restricted
Payments which, when aggregated with all other Restricted Payments
made pursuant to this Section 6.04(d) during the then current
calendar year do not exceed $75,000,000, (ii) at any time when the
Consolidated Total Leverage Ratio is less than 3.00 to 1.00 but
greater than or equal to 2.00 to 1.00 (both immediately before and
immediately after the making of such Restricted Payment) the
Borrower may make Restricted Payments which, when aggregated with
all other Restricted Payments made pursuant to this Section 6.04(d)
during the then current calendar year do not exceed $35,000,000,
(iii) at any time when the Consolidated Total Leverage Ratio is
less than 4.00 to 1.00 but greater than or equal to 3.00 to 1.00
(both immediately before and immediately after the making of such
Restricted Payment) the Borrower may make Restricted Payments
which, when aggregated with all other Restricted Payments made
pursuant to this Section 6.04(d) during the then current calendar
year do not exceed $20,000,000 and (iv) at any time when the
Consolidated Total Leverage Ratio is greater than or equal to 4.00
to 1.00 (both immediately before and immediately after the making
of such Restricted Payment) the Borrower may make Restricted
Payments which, when aggregated with all other Restricted Payments
made pursuant to this Section 6.04(d) during the then current
calendar year do not exceed $10,500,000; provided that in the case
of Section (d)(i), (d)(ii), (d)(iii) or (d)(iv), the
Borrow
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