SECOND AMENDMENT AND WAIVER
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SECOND AMENDMENT AND WAIVER (this "Amendment"), dated as of
July 29, 1999, among OMNIQUIP INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), the lenders party to the Credit Agreement referred to below on the
date hereof (the "Banks"), XXXXXX XXXXXXX SENIOR FUNDING, INC., as Syndication
Agent and Co-Arranger (the "Syndication Agent") and FIRST UNION NATIONAL BANK,
as Administrative Agent and Co-Arranger (the "Administrative Agent"). All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided such terms in the Credit Agreement referred to
below.
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, the Borrower, the Banks, Syndication Agent and the
Administrative Agent are parties to a Credit Agreement, dated as of November 17,
1997 and amended and restated as of February 26, 1999 (as amended to the date
hereof, the "Credit Agreement"); and
WHEREAS, the Borrower has requested, and the Banks party
hereto are willing (subject to the terms and conditions hereof) to grant the
waivers set forth herein and (ii) the Borrower and the Banks wish to amend and
modify the Credit Agreement and the Pledge Agreement as provided herein;
NOW, THEREFORE, it is agreed:
I. Amendments and Modifications:
1. Section 9.05(x) of the Credit Agreement is hereby amended
by deleting the reference to "$2,000,000" contained therein and inserting the
amount "$1,000,000" in lieu thereof.
2. Notwithstanding anything to the contrary contained in the
Pledge Agreement, no Pledgor (as defined in the Pledge Agreement) shall be
required to pledge, and the term "Stock" contained in Section 2 of the Pledge
Agreement shall not include, any capital stock, or warrants and options to
purchase any such capital stock, of Libra Compact Technologies S.A., a company
formed and organized under the laws of the Republic of San Marino ("Libra").
II. Waivers:
1. The Banks hereby waive any Default or Event of Default that
may have arisen under the Credit Agreement prior to the Second Amendment
Effective Date (as defined below) solely as a result of the Borrower failing to
comply with Section 3.2 of the Pledge Agreement in respect of the Borrower's
ownership interest in Libra.
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2. The Banks hereby waive, until the 30th day from the Second
Amendment Effective Date, any Default or Event of Default that may have arisen
under the Credit Agreement solely as a result of the Borrower failing to comply
with Section 3.2 of the Pledge Agreement in respect of the Borrower's ownership
interest in Omniquip U.K. Limited, a company formed and organized under the laws
of England and Wales ("Omniquip UK"), provided that, in any event, the Borrower
shall be required to comply with Section 3.2 of the Pledge Agreement in respect
of its ownership interest in Omniquip UK by the 30th day following the Second
Amendment Effective Date and any failure to so comply by such date shall
constitute an immediate Event of Default.
III. Miscellaneous:
1. In order to induce the Banks to enter into this Amendment,
the Borrower hereby represents and warrants that (x) no Default or Event of
Default exists on the Second Amendment Effective Date, after giving effect to
this Amendment and (y) all of the representations and warranties contained in
the Credit Documents shall be true and correct in all respects on the Second
Amendment Effective Date, after giving effect to this Amendment with the same
effect as though such representations and warranties had been made on and as of
the Second Amendment Effective Date (it being understood that any representation
or warranty made as of a specified date shall be true and correct in all
material respects as of such specific date), in each case except as previously
disclosed in writing to the Agents.
2. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
3. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower, the Administrative Agent and
the Syndication Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
5. This Amendment shall become effective on the date (the
"Second Amendment Effective Date") when the Borrower and the Required Banks
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at the Notice Office.
6. From and after the Second Amendment Effective Date, all
references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement and the Pledge Agreement shall be deemed to be references to
such Credit Document as amended hereby.
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
OMNIQUIP INTERNATIONAL, INC.
By /s/ Xxxxxx Xxxxxxx
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Title: Vice President Finance &
Chief Financial Officer
FIRST UNION NATIONAL BANK,
Individually and as Administrative Agent
and Co-Arranger
By /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President
XXXXXX XXXXXXX SENIOR
FUNDING, INC., Individually and as
Syndication Agent and Co-Arranger
By /s/ T. Xxxxxx Xxxxxxx XX
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Title: Vice President
BANK OF SCOTLAND
By /s/ Xxxxx Xxxxx
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Title: Senior Vice President
CREDIT AGRICOLE INDOSUEZ
By
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Title:
FIRST BANK
By /s/ Xxxxx X. Xxxxxxx
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Title: Assistant Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxx Xxxxxxx
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Title: Vice President
FIRSTAR BANK MILWAUKEE, N.A.
By /s/ Xxxxxxx X. Xxxxx
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Title: Vice President
FLEET CAPITAL CORPORATION
By /s/ Xxxxx Xxxxxx
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Title: Senior Vice President
THE FUJI BANK, LIMITED
By /s/ Xxxxx X. Xxxxxxxx
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Title: Senior Vice President &
Group Head
XXXXXX TRUST AND SAVINGS BANK
By /s/ Xxxxxx X. Dluby
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Title: Vice President
M&I XXXXXXXX AND XXXXXX BANK
By /s/ Xxxxxxxx X. Xxxxxxx
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Title: Vice President
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By
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Title:
NATIONAL CITY BANK
By /s/ Xxxxx X. Xxxxxxxx
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Title: Vice President
WACHOVIA BANK, N.A.
By /s/ Xxxxx X. Xxxxx
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Title: Senior Vice President
RZB FINANCE LLC
By /s/ Xxxx X. Xxxxxxx
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Title: Vice President
By /s/ Xxxxxxxxxxx Xxxxx
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Title: Assistant Vice President
BANK LEUMI USA, CHICAGO BRANCH
By /s/ Xxxxxxx X. Fossa
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Title: Vice President
