Advance Formula Agreement



 Exhibit 10.1 
  

					
	

	 	 Advance Formula Agreement
	 	 

  
 As of
January 26, 2009, this Advance Formula Agreement (as amended, varied, supplemented, restated, renewed or replaced at any time and from time to time, this “Agreement”) is made by Manitex LiftKing, ULC, an Alberta corporation
(“Debtor”) in favour of COMERICA BANK (“Bank”), a Texas banking association and authorized foreign bank under the Bank Act (Canada). 
 For and in consideration of the loans and other credit which Debtor may now or hereafter obtain or request from Bank which are secured pursuant to a Security Agreement dated as of the date herewith, executed and delivered by Debtor to and
in favour of Bank (as amended, varied, supplemented, restated, renewed or replaced at any time and from time to time, the “Security Agreement”), and for other good and valuable consideration, Debtor agrees as follows: 
  

	1.	FORMULA LOANS. The credit which Bank may now or hereafter extend to Debtor subject to the limitations of this Agreement and to the conditions and limitations of any other agreement
between Debtor and Bank is identified as follows: 

 CDN$4,500,000 line of credit and U.S.$4,500,000 line of credit 

and any extensions, renewals or substitutions thereof, whether in a greater or lesser amount, including any letters of credit issued thereunder
(“Formula Loans”). 
  

	2.	ADVANCE FORMULA. Debtor warrants and agrees that Debtor’s indebtedness to Bank for the Formula Loans shall never exceed the sum of: 

  

	 	(a)	eighty percent (80%) of its Eligible Accounts (as hereinafter defined); plus 

  

	 	(b)	the lesser of (i) thirty percent (30%) of its Eligible Inventory (as hereinafter defined) which is properly classified under GAAP as work-in-process Inventory, or
(ii) Five Hundred Thousand Canadian Dollars (CDN$500,000); plus 

  

	 	(c)	the lesser of (i) fifty percent (50%) of its Eligible Inventory (as hereinafter defined), or (ii) Three Million Canadian Dollars (CDN$3,000,000).


 in each case less customary exclusions and reserves (the “Advance Formula”). 
  

	3.	FORMULA COMPLIANCE. If the limitations in paragraph 2, above, are exceeded at any time, Debtor shall immediately pay Bank sums sufficient to reduce the Formula Loans by the amount
of such excess. 

  

	4.	ELIGIBLE ACCOUNT. “Eligible Account” shall mean an Account (as hereinafter defined) arising in the ordinary course of Debtor’s business which meets each of the
following requirements: 

  

	 	(a)	it is not owing more than ninety (90) days after the date of the original invoice or other writing evidencing such Account; 









	 	(b)	it is not owing by an Account Debtor (as hereinafter defined) who has failed to pay twenty-five percent (25%) or more of the aggregate amount of its Accounts owing to Debtor
within ninety (90) days after the date of the respective invoices or other writings evidencing such Accounts; 

  

	 	(c)	it arises from the sale or lease of goods and such goods have been shipped or delivered to the Account Debtor under such Account; or it arises from services rendered and such
services have been performed; 

  

	 	(d)	it is evidenced by an invoice, dated not later than the date of shipment or performance, rendered to such Account Debtor or some other evidence of billing acceptable to Bank;


  

	 	(e)	it is not evidenced by any note, trade acceptance, draft or other negotiable instrument or by any chattel paper, unless such note or other document or instrument previously has been
endorsed and delivered by Debtor to Bank; 

  

	 	(f)	it is a valid, legally enforceable obligation of the Account Debtor thereunder, and is not subject to any offset, counterclaim or other defense on the part of such Account Debtor or
to any claim on the part of such Account Debtor denying liability thereunder in whole or in part; 

  

	 	(g)	it is subject to a first priority, properly perfected security interest in favor of Bank, and it is not subject to any sale of accounts, any rights of offset, assignment, lien or
security interest whatsoever other than to Bank; 

  

	 	(h)	it is not owing by a subsidiary or affiliate of Debtor; 

  

	 	(i)	it is not owing by an Account Debtor which (i) does not maintain its chief executive office in the United States of America or Canada, (ii) is not organized under the laws
of the United States of America or Canada, or any state or province thereof, as applicable, or (iii) is the government of any foreign country or sovereign state, or of any state, province, municipality or other instrumentality or agency
thereof; 

  

	 	(j)	it is not an Account owing by the United States of America or Canada or any state, province or political subdivision thereof, or by any department, agency, public body corporate or
other instrumentality or agency of any of the foregoing, unless all necessary steps are taken to comply with the Federal Assignment of Claims Act of 1940, as amended, the Financial Administration Act (Canada), as amended or with any comparable state
or provincial law, as applicable, and all other necessary steps are taken to perfect Bank’s security interest in such Account; 

  

	 	(k)	it is not owing by an Account Debtor for which Debtor has received a notice of (i) the death of the Account Debtor or any partner of the Account Debtor, (ii) the
dissolution, liquidation, termination of existence, insolvency or business failure of the Account Debtor, (iii) the appointment of a receiver for any part of the property of the Account Debtor, or (iv) an assignment for the benefit of
creditors, the filing of a petition in bankruptcy, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against the Account Debtor; 

  

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	 	(l)	it is not an Account billed in advance, payable on delivery, for consigned goods, for guaranteed sales, for unbilled sales, for progress billings, payable at a future date in
accordance with its terms, subject to a retainage or holdback by the Account Debtor or insured by a surety company; and 

  

	 	(m)	it is not owing by any Account Debtor whose obligations Bank, acting in its sole discretion, shall have notified Debtor are not deemed to constitute Eligible Accounts.


 An Account which is at any time an Eligible Account, but which subsequently fails to meet any of the foregoing requirements, shall forthwith
cease to be an Eligible Account. 
 For purposes of this Agreement, an “Account” shall mean any right of Debtor to payment for goods sold or leased
or for services rendered, but shall not include interest or service charges; and “Account Debtor” shall mean the person who is obligated on or under an Account. 
  

	5.	ELIGIBLE INVENTORY. Unless stated otherwise in paragraph 13 below, “Eligible Inventory” (a) shall be valued at the lesser of the cost or present market value of
Debtor’s Inventory (as defined in the Personal Property Security Act (Ontario), as amended and in effect from time to time) determined in accordance with generally accepted accounting principles, consistently applied (“GAAP”), and
(b) shall mean all of Debtor’s Inventory which is in good and merchantable condition, which is not obsolete or discontinued, which would be properly classified as “raw materials”, “finished goods Inventory”, or
“work-in-process Inventory” under and in accordance with GAAP, and which is subject to a first priority, properly perfected security interest in favor of Bank, but excluding (1) consigned goods, Inventory located outside the United
States of America or Canada, (2) Inventory covered by or subject to a seller’s right to repurchase, or any consensual or nonconsensual lien or security interest (including, without limitation, purchase money security interests) other than
in favor of Bank, whether senior or junior to Bank’s security interest, (3) Inventory subject to creditors’ rights under Section 81.1 of the Bankruptcy and Insolvency Act (Canada), (4) Inventory stored, warehoused or located
at a site for which Debtor has not provided to Bank a landlord, bailee or mortgagee waiver or similar agreement in form and substance acceptable to Bank, and (5) Inventory that Bank, acting in its sole discretion, after having notified Debtor,
excludes. Inventory which is at any time Eligible Inventory, but which subsequently fails to meet any of the foregoing requirements, shall forthwith cease to be Eligible Inventory. 

  

	6.	 CERTIFICATES, SCHEDULES AND REPORTS. Debtor will, within ten (10) days after and as of the end of each month (and at such other times as Bank may request),
deliver to Bank agings of the Accounts and a schedule identifying each Eligible Account (not previously so identified) and reports as to the amount of Eligible Inventory. Debtor will from time to time deliver to Bank such additional schedules,
certificates and reports respecting all or any of the Collateral (as defined in the Security Agreement), the items or amounts received by Debtor in full or partial payment of any of the Collateral, and any goods (the sale 



  

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or lease of which by Debtor shall have given rise to any of the Collateral) possession of which has been obtained by Debtor, all and as to such extent as
Bank may request. Any such schedule, certificate or report shall be executed by a duly authorized officer of Debtor and shall be in such form and detail as Bank may specify. Any such schedule identifying any Eligible Account shall be accompanied (if
Bank so requests) by a true and correct copy of the invoice evidencing such Eligible Account and by evidence of shipment or performance. 


  

	7.	INSPECTIONS; COMPLIANCE. Debtor shall permit Bank and its designees from time to time to make such inspections and audits, and to obtain such confirmations or other information,
with respect to any of the Collateral or any Account Debtor as Bank is entitled to make or obtain under the Security Agreement, and shall reimburse Bank on demand for all costs and expenses incurred by Bank in connection with such inspections and
audits. Debtor shall further comply with all of the other terms and conditions of the Security Agreement. 

  

	8.	DEFAULT. Any failure by Debtor to comply with this Agreement shall constitute a default under the Formula Loans and under the Security Agreement and the Indebtedness, as defined
therein. 

  

	9.	AMENDMENTS; WAIVERS. This Agreement may be amended, modified or terminated only in writing duly executed by Debtor and Bank. No delay by Bank in requiring Debtor’s compliance
herewith shall constitute a waiver of such right. The rights granted to Bank hereunder are cumulative, and in addition to any other rights Bank may have by agreement or under applicable law. This Agreement shall supersede and replace in their
entirety any prior advance formula agreements in effect between Bank and Debtor. 

  

	10.	DEMAND BASIS FORMULA LOANS. Notwithstanding anything to the contrary set forth in this Agreement, in the event that the Formula Loans are at any time on a demand basis, Debtor
hereby acknowledges and agrees that the formula set forth in paragraph 2 hereof is merely for advisory and guidance purposes and Bank shall not be obligated to make any loans or advances under the Formula Loans, and, notwithstanding the terms of
paragraph 3 above, Bank may at any time, at its option, demand payment of any or all of the Formula Loans, whereupon the same shall become due and payable. 

  

	11.	DILUTION OF ACCOUNTS. In the event that Bank, at any time in its sole discretion, determines that the dollar amount of Eligible Accounts collectable by Debtor is reduced or diluted
as a result of discounts or rebates granted by Debtor to the respective Account Debtor(s), returned or rejected Inventory or services, or such other reasons or factors as Bank deems applicable, Bank may, in its sole discretion, upon five
(5) business days’ prior written notice to Debtor, reduce or otherwise modify the percentage of Eligible Accounts included within the Advance Formula under paragraph 2(a) above and/or reduce the dollar amount of Debtor’s Eligible
Accounts by an amount determined by Bank in its sole discretion. 

  

	12.	 JURY WAIVER. DEBTOR AND BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING
(OR 



  

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HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT WAIVES ANY RIGHT TO TRIAL BY
JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT OR THE INDEBTEDNESS. 


  

	13.	GOVERNING LAW. This Agreement shall be construed in accordance with and governed by the laws of the Province of Ontario and of Canada applicable therein and the parties
attorn to the non-exclusive jurisdiction of the courts of the Province of Ontario. 

  

	14.	COUNTERPARTS. This Agreement may be signed in as many counterparts as may be necessary and delivered by facsimile, each of which shall be deemed to be an original and such
counterparts together shall constitute one and the same document. 

  

	15.	MISCELLANEOUS. This Agreement amends and restates the Advance Formula Agreement dated as of December 29, 2006, between the Debtor and the Bank. This Agreement is subject to
the terms and conditions of the Letter Agreement dated as of June 30, 2008, between the Debtor and the Bank. 

 [signatures on
following page] 
  

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 IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first above written. 

 

							
		 		 	DEBTOR:
	Debtor’s Chief Executive Office Address:	 		 	
			
	3000 South Austin Avenue	 		 	MANITEX LIFTKING, ULC
	Georgetown, Texas 78626	 		 		 	
		 		 	By:	 	 /s/ David H. Gransee

		 		 		 	SIGNATURE OF
		 		 	Its:	 	 VP & CFO

		 		 		 	TITLE

  

			
	Accepted and Approved:
	
	COMERICA BANK
		
	By:	 	 /s/ James Q. Goudie III

		 	SIGNATURE OF
	Its:	 	 VP & AGM

		 	TITLE

  

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