This excerpt taken from the MTW 8-K filed Jun 14, 2005.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as
follows:
(i) if to the Borrower or any Subsidiary Borrower, to it at
The Manitowoc Company, Inc., 2400 South 44th Street, Manitowoc, Wisconsin
54221, Attention of Carl Laurino, Chief Financial Officer (Telecopy No. (920)
652-9775);
(ii) if to the Administrative Agent, to JPMorgan
Chase Bank, N.A., Loan Operations, 131 S. Dearborn St., Chicago, Illinois,
60670, Attention of Yvonne E. Dixon (Telecopy No. (312) 385-7101; e-mail: yvonne_e_dixon@bankone.com) and, in the
case of any Loan denominated in a Foreign Currency, to the J. P. Morgan
Europe Limited, 125 London Wall, London, EC2Y 5AJ, Attn: Loans Agency (Telecopy No. 44 207 777 2360/2085);
(iii) if to the Issuing Bank, to it at JPMorgan Chase
Bank, N.A., Letter of Credit Group, 131 S. Dearborn St., Mail Code: IL1-0236, Chicago, Illinois, 60670,
Attention of Evelyn D. Abbasi (Telecopy No. (312)
954-5986);
(iv) if to the Swingline Lender, c/o the Administrative Agent at
the address set forth in clause (ii) above; and
(v) if to the Alternate Currency Fronting Lender, c/o the
Administrative Agent at the address set forth in clause (ii) above; and
(vi) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
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(b) Notices and other communications to
the Lenders hereunder may be delivered or furnished by electronic
communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may,
in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.
(c) Any party hereto may change its
address or telecopy number for notices and other communications hereunder by
notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent, the Issuing Bank and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrowers therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan
or issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Borrower and the Required Lenders or by the Borrower and the Administrative
Agent with the consent of the Required Lenders; provided that no such
agreement shall (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii)
reduce the principal amount of any Loan or LC Disbursement or reduce the rate
of interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan or LC Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or
excuse any such payment, postpone the scheduled date of expiration of any
Commitment or extend the stated expiration date of any Letter of Credit beyond
the Maturity Date, without the written consent of each Lender affected thereby,
(iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each
Lender, (v) change any of the provisions of this Section or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender, or (vi) release all or substantially all of the Collateral or
release any Subsidiary Guarantor from its obligations under
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the Subsidiary Guaranty, except in connection with the
sale of a Subsidiary Guarantor permitted under this Agreement, without the
written consent of each Lender; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative Agent,
the Issuing Bank, the Alternate Currency Fronting Lender or the Swingline
Lender hereunder without the prior written consent of the Administrative Agent,
the Issuing Bank, the Alternate Currency Fronting Lender or the Swingline
Lender, as the case may be.
Notwithstanding the foregoing, upon the execution and delivery of all
documentation required by Section 2.09(d) to be delivered in connection with an
increase to the total Commitments, the Administrative Agent, the Borrower and
the new or existing Lenders whose Commitments have been affected may and shall
enter into an amendment hereof (which shall be binding on all parties hereto
and the new Lenders) solely for the purpose of reflecting any new Lenders and
their new Commitments and any increase in the Commitment of any existing
Lender.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all reasonable
out of pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Bank in connection with the issuance, amendment, renewal or extension
of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank
or any Lender, including the fees, charges and disbursements of any counsel for
the Administrative Agent, the Issuing Bank or any Lender, in connection with
the enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
or Letters of Credit issued hereunder, including all such out-of pocket expenses
incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the
Administrative Agent, the Issuing Bank and each Lender, and each Related Party
of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the proceeds therefrom (including any refusal by the Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or
