AMENDMENT NO. 2 (the "Amendment") dated as of August 2, 1999 to
the Credit Agreement dated as of March 30, 1998 (as the same has been,
or may hereafter be, amended, amended and restated, supplemented or
otherwise modified, renewed or replaced from time to time, the "Credit
Agreement"), among (i) MMH HOLDINGS, INC., a Delaware corporation
("Holdings"), (ii) XXXXXX MATERIAL HANDLING, INC., a Delaware
corporation (the "Company"), (iii) XXXXXX MATERIAL HANDLING, LLC
(formerly known as Material Handling, LLC), a Delaware limited
liability company, (iv) XXXXXX MATERIAL HANDLING EQUIPMENT LIMITED
(formerly known as Xxxxxx Material Handling, Ltd.), a company
organized under the laws of England and Wales, (v) MONDEL ULC, an
unlimited liability company organized under the laws of Nova Scotia,
(vi) KAVERIT STEEL AND CRANE ULC, an unlimited liability company
organized under the laws of Nova Scotia, (vii) the Banks referred to
therein, (viii) the New York branch of CREDIT AGRICOLE INDOSUEZ, as
syndication agent for the Banks, (ix) BANKBOSTON, N.A., as
documentation agent for the Banks and (x) CANADIAN IMPERIAL BANK OF
COMMERCE, as administrative agent and collateral agent for the Banks
(in such capacities, the "Administrative Agent").
INTRODUCTORY STATEMENT
All capitalized terms not otherwise defined in this Amendment
are used herein as defined in the Credit Agreement.
The Company has requested that the Credit Agreement be amended
to modify certain provisions thereof as hereinafter set forth.
In consideration of the mutual agreements contained herein and
other good and valuable consideration, the parties hereto hereby agree as
follows:
SECTION 1. Amendment to the Credit Agreement. Subject to the
provisions of Section 6 hereof, the Credit Agreement is hereby amended effective
as of the Effective Date (such term being used herein as defined in Section 6
hereof) as follows:
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(A) The first paragraph of the Agreement is hereby amended by
deleting the phrase "the lending institutions listed in Annex I (each, a "Bank"
and, collectively, the "Banks")" and inserting the phrase "the Banks referred to
herein" in lieu thereof.
(B) Clause (ii)(b) of the second WHEREAS clause appearing on
page 1 of the Agreement is hereby amended in its entirety to read as follows:
"(b) with respect to the Acquisition Term Loans, either (1) to
provide financing for acquisitions and to pay related fees and
expenses or (2) to provide working capital to the Borrowers and their
Subsidiaries and for general corporate or business purposes of the
Borrowers and their Subsidiaries, in each case, on the terms and
subject to the conditions set forth in this Agreement."
(C) The first paragraph of Section 1.01 of the Agreement is
hereby amended (i) by inserting the parenthetical phrase "(including, without
limitation, Section 1.12 hereof)" in the second line immediately after the words
"conditions herein set forth" appearing therein and (ii) by deleting the words
"in connection with Designated Acquisitions" appearing in clause (ii) of such
paragraph.
(D) Section 1.01(b) of the Agreement is hereby amended in its
entirety to read as follows:
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"(b) Subject to the limitations set forth in Section 1.12 hereof,
Loans under the Acquisition Portion of the Loan Facility (each an
"Acquisition Term Loan") (i) shall be made to a U.S. Borrower after
the Closing Date and prior to the Acquisition Term Loan Commitment
Termination Date; provided, however, that the U.S. Borrowers shall not
be entitled to request or receive from the Banks, and the Banks shall
have no obligation whatsoever to fund, any Acquisition Term Loans in
excess of the Acquisition Term Loans outstanding prior to the
effective date of Amendment No. 2 in the aggregate principal amount of
$7,430,082.82 (it being understood that the Banks shall make
Acquisition Term Loans which are Sponsor Loans and which have been
funded pursuant to, and in accordance with, the Sponsor Participation
Agreement); and provided, further, however, that any Acquisition Term
Loan to be made on or after the effective date of Amendment No. 2
shall only be made pursuant to the Additional Sponsor Participation
and in accordance with Section 1.12 hereof, (ii) shall, at the option
of the Applicable Borrower, be Base Rate Loans or Reserve Adjusted
Eurodollar Loans; provided that all Acquisition Term Loans made by the
applicable Banks having an Acquisition Term Loan Commitment pursuant
to the same Borrowing shall, unless otherwise specifically provided
herein, consist entirely of Loans of the same Type (provided that
partial conversions are permitted in accordance with Section 1.06),
(iii) shall not exceed for any Bank at any time outstanding the
Acquisition Term Loan Commitment of such Bank at such time, and (iv)
shall not be made pursuant to a particular Notice of Borrowing if the
aggregate principal amount of Acquisition Term Loans then outstanding,
after giving effect to the Acquisition Term Loan requested by such
Notice of Borrowing, would exceed the Total Acquisition Term Loan
Commitment or be contrary to the limitations set forth in Section 1.12
hereof. Once repaid, Acquisition Term Loans may not be reborrowed."
(E) Section 1.01(c) of the Agreement is hereby amended (i) by
inserting the phrase "subject to the limitations set forth in Section 1.12
hereof," at the beginning thereof, immediately preceding the word "Loans" and
(ii) by inserting the following new subclause immediately preceding subclause
(y) appearing in clause (v) of such section:
"(x) the applicable borrowing limitations set forth in Section 1.12
hereof or"
(F) Section 1.01(d) of the Agreement is hereby amended (i) by
inserting the phrase "Subject to the limitations set forth in Section 1.12
hereto," at the beginning thereof, immediately preceding the words "Swingline
Loans", (ii) by inserting the words "or letters of credit or guaranty or bonds"
at the end of the first clause (ii) appearing therein immediately after the
words "Reserve Adjusted Eurodollar Loans" and (iii) by inserting the following
new subclause immediately preceding subclause (y) appearing in clause (v) of
such section:
"(x) the applicable borrowing limitations set forth in Section 1.12
hereof or"
(G) Section 1.01(e) of the Agreement is hereby amended in its
entirety to read as follows:
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"(e) Notice to the Administrative Agent (which shall give notice
to all Revolving Facility Banks) (i) may be given on any Business Day,
(A) in the sole discretion of the U.S. Swingline Bank with respect to
the U.S. Swingline Loans, (B) in the sole discretion of the U.K.
Swingline Bank with respect to the U.K. Swingline Loans and (C) in the
sole discretion of the Canadian Swingline Bank with respect to the
Canadian Swingline Loans and (ii) shall be deemed to be automatically
given by each Swingline Bank with respect to all Swingline Loans upon
the occurrence of an Event of Default under Section 8.05 (with respect
to Holdings or the Company or any of its Significant Subsidiaries) or
upon the exercise of any of the remedies provided in the last
paragraph of Section 8, that the Dollar Equivalent of such Swingline
Bank's outstanding Swingline Loans to the Applicable Borrower shall be
funded with a Borrowing in Dollars of Revolving Loans or in the case
of outstanding U.K. Swingline Letters of Credit, shall be supported by
the issuance of a Letter of Credit in Dollars naming the U.K.
Swingline Bank as the beneficiary thereof in the face amount equal to
the Dollar Equivalent of the aggregate face amount of such outstanding
U.K. Swingline Letters of Credit. In any such case, either (x)
Revolving Loans in Dollars, for the benefit of the U.S. Borrowers,
constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day
by all Revolving Facility Banks pro rata based on each Bank's Dollar
Percentage and the proceeds thereof shall be applied directly to the
Applicable Swingline Bank to repay such Swingline Bank for such
outstanding Swingline Loans (other than U.K. Swingline Letters of
Credit) or (y) in the case of U.K. Swingline Letters of Credit, an
Issuing Bank shall issue a Letter of Credit pursuant to Section 1.13
hereof naming the U.K. Swingline Bank as beneficiary, which Letter of
Credit shall be in the face amount equal to the aggregate Dollar
Equivalent of the face amount of such outstanding U.K. Swingline
Letters of Credit. Any Swingline Loan (other than a U.K. Swingline
Letter of Credit) that is denominated in a currency other than Dollars
shall be converted into Dollars immediately upon such notice at the
Spot Rate. Each Revolving Facility Bank hereby irrevocably agrees to
make Revolving Loans upon one Business Day's notice pursuant to each
Mandatory Borrowing in the amount and in the manner specified in the
preceding sentence and on the date specified in writing by the
Applicable Swingline Bank and an Issuing Bank agrees to issue the
aforementioned Letter of Credit upon one (1) Business Day's notice and
on the date specified in writing by the Administrative Agent
notwithstanding (i) that the amount of any Mandatory Borrowing may not
comply with the Minimum Borrowing Amount otherwise required hereunder
or in the case of the issuance of the Letter of Credit, all the
conditions in Section 1.13 being complied with, (ii) whether any
conditions specified in Section 4 are then satisfied, (iii) whether a
Default or an Event of Default then exists, (iv) the date of such
Mandatory Borrowing or issuance of Letter of Credit, as applicable and
(v) the amount of the Total Revolving Loan Commitment at such time. In
the event that any Mandatory Borrowing cannot be made or a Letter of
Credit issued for any reason on the date otherwise required above
(including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to any of the
Borrowers), then each such Revolving Facility Bank hereby agrees that
it shall forthwith purchase (as of the date the Mandatory Borrowing or
issuance of the Letter of Credit would otherwise have occurred, but
adjusted for the Dollar Equivalent of any payments received from the
Applicable Borrower (or Borrowers) on or after such date and prior to
such purchase) from the applicable Swingline Bank such participations
in the outstanding Swingline Loans as shall be necessary to cause such
Revolving Facility Banks to share in the Dollar Equivalent of such
Swingline Loans ratably based upon their Dollar Percentage; provided
that (x) all interest payable on the Swingline Loans (including the
commission on letters of credit or guaranty or bonds issued by the
U.K. Swingline Bank as U.K. Swingline Loans) shall be for the account
of the applicable Swingline Bank until the date as of which the
respective participation is required to be purchased and, to the
extent attributable to the purchased participation, shall be payable
to the participant from and after such date and (y) at the time any
purchase of participations pursuant to this sentence is actually made,
the purchasing Revolving Facility Bank shall be required to pay the
applicable Swingline Bank interest on the principal amount of the
participation purchased for each day from and including the day upon
which the Mandatory Borrowing would otherwise have occurred to but
excluding the date of payment for such participation, and at the rate
otherwise applicable to Revolving Loans maintained as Base Rate Loans
hereunder."
(H) Section 1.03(a) of the Agreement is hereby amended (i) by
deleting the words "and, in the case of a Loan under the Acquisition Portion,
that all additional conditions under Section 4.03" appearing in the sixth,
seventh and eighth lines thereof and (ii) by adding the phrase ", the
limitations set forth in Section 1.12 hereof," immediately after the words "the
Borrowing Base" in clause (ii) of such Section 1.03(a).
(I) Section 1.03(d) of the Agreement is hereby amended by
inserting the following text after the words "on the date" appearing in the
seventh line of such section:
"or, with respect to U.K. Swingline Letters of Credit, not later than
10:00 a.m. (London time) three Business Days prior to the date,"
(J) Section 1.08(e) of the Agreement is hereby amended in its
entirety to read as follows:
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"(e) Notwithstanding anything to the contrary contained in this
Agreement, interest on all Loans shall accrue from and including the
date of any Borrowing to but excluding the date of any repayment
thereof and shall be payable (i) monthly in arrears on the last
Business Day of each month, beginning August 31, 1999 and (ii) on any
prepayment (on the amount prepaid), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
Notwithstanding the foregoing, interest payable at the rate provided
in Section 1.08(d) shall be payable on demand."
(K) Section 1.09 of the Agreement is hereby amended by
deleting the words "be a one, two, three, six or, if available by all the Banks
and only with respect to Dollar Loans, twelve month period" appearing at the end
of the first paragraph of such section and inserting the words "be a one or
three month period" in lieu thereof.
(L) Section 1.12 of the Agreement is hereby amended in its
entirety to read as follows:
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"1.12. Amount of Outstanding Loans and Commitments; Limitations
on Outstanding Loan Amounts. (A) Notwithstanding anything to the
contrary contained in this Agreement, upon the effectiveness of
Amendment No. 2, (i) the aggregate principal amount of outstanding A
Term Loans shall be $18,375,000 and the Total A Term Loan Commitment
shall be $18,375,000; (ii) the aggregate principal amount of
outstanding B Term Loans shall be $34,562,500 and the Total B Term
Loan Commitment shall be $34,562,500; (iii) the aggregate principal
amount of outstanding Acquisition Term Loans shall be $12,430,082.82
($7,430,082.82 of such Acquisition Term Loans shall have been funded
by the Banks and $5,000,000 of such Acquisition Term Loans shall have
been funded by the Sponsors (in accordance with, and as contemplated
by, the Sponsor Participation Agreement)) and the Total Acquisition
Term Loan Commitment shall be $30,000,000 in accordance with, and as
provided in, the Sponsor Participation Agreement; (iv) the aggregate
principal amount of outstanding Revolving Loans shall be
$25,061,106.42 and the Total Revolving Loan Commitment shall be
$50,700,000 (including up to $10,000,000 of Letters of Credit); (v)
the aggregate principal amount of outstanding U.S. Swingline Loans
shall be $3,500,000 and the Total U.S. Swingline Loan Commitment shall
be $6,000,000; (vi) the dollar equivalent amount of the aggregate
principal amount of outstanding U.K. Swingline Loans (as determined by
the Administrative Agent) shall be $868,750.20 and the Total U.K.
Swingline Loan Commitment shall be $6,000,000; and (vii) the aggregate
principal amount of outstanding Canadian Swingline Loans shall be $0
and the Total Canadian Swingline Loan Commitment shall be $3,000,000.
Notwithstanding anything to the contrary contained in this Agreement
and subject to the borrowing limitations set forth in this Section
1.12, (a) in no event shall the sum of (without duplication) the
aggregate principal amount of all Term Loans, Acquisition Term Loans
and Revolving Loans of any Bank plus such Bank's participation in the
Dollar Equivalent of Letter of Credit Usage, at any time exceed such
Bank's portion of the Total Commitment, (b) in no event shall the sum
of the aggregate principal amount of all Term Loans, Acquisition Term
Loans, Revolving Loans and the Dollar Equivalent of Swingline Loans
from all Banks plus the Dollar Equivalent of Letter of Credit Usage at
any time exceed the Total Commitment, (c) in no event shall the
aggregate principal amount of all Acquisition Term Loans exceed the
Total Acquisition Term Loan Commitment or the borrowing limitations
set forth in this Section 1.12, (d) in no event shall the Revolving
Loans, the Dollar Equivalent of Swingline Loans and the Dollar
Equivalent of Letter of Credit Usage, after giving effect to all
Revolving Loans, Swingline Loans and Letters of Credit then requested,
exceed the Total Revolving Loan Commitment, (e) in no event shall the
aggregate principal amount of all Revolving Loans, the Dollar
Equivalent of Swingline Loans and the Dollar Equivalent of Letter of
Credit Usage, after giving effect to all Revolving Loans, Swingline
Loans and Letters of Credit then requested, exceed the lesser of the
Borrowing Base or the applicable borrowing limitations set forth in
this Section 1.12, (f) in no event shall the aggregate principal
amount of all Revolving Loans and the Dollar Equivalent of all
Swingline Loans (other than U.K. Swingline Letters of Credit) exceed
the borrowing limitations set forth in this Section 1.12, (g) in no
event shall the sum of the aggregate maximum outstanding Letter of
Credit Usage in respect of the Dollar Equivalent of all Letters of
Credit plus the aggregate maximum outstanding U.K. Swingline Letter of
Credit Usage in respect of the Dollar Equivalent of all U.K. Swingline
Letters of Credit exceed the limitations set forth in this Section
1.12 or elsewhere in this Agreement and (h) in no event shall the
aggregate principal Dollar Equivalent of Swingline Loans exceed the
applicable Maximum Swingline Amount. Once repaid, none of the A Term
Loans, the B Term Loans or the Acquisition Term Loans may be
reborrowed.
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(B) The U.S. Borrowers hereby agree that neither of them shall
request that the Banks fund Acquisition Term Loans, and neither of
them shall be entitled to receive any Acquisition Term Loans funded by
the Banks, in either case, in excess of the Acquisition Term Loans
outstanding prior to the effective date of Amendment No. 2 in the
aggregate principal amount of $7,430,082.82. The parties hereto hereby
agree that, as contemplated by the Sponsor Participation Agreement,
any additional Acquisition Term Loan that may be requested by the U.S.
Borrowers to be made pursuant to the Additional Sponsor Participation
after the effective date of Amendment No. 2 (it being understood this
does not include the $5,000,000 Acquisition Term Loan to be made on or
prior to the effective date of Amendment No. 2 and funded by the
Sponsors, in accordance with, and as provided in, the Sponsor
Participation Agreement) (i) may be made by any of the Sponsors
(and/or another participant acceptable to the Administrative Agent and
the Required Banks) (it being understood that the Sponsors shall not
be obligated to make any such Loans), (ii) must be approved in writing
by the Administrative Agent, the Required Banks and each Sponsor (or
other acceptable participant, if applicable) which chooses to fund
such additional Acquisition Term Loan and (iii) shall be deemed to be
a Sponsor Loan when made.
(C) Notwithstanding any other provision of this Agreement to the
contrary, (i) the aggregate principal amount of all outstanding
Revolving Loans and the aggregate Dollar Equivalent of all outstanding
Swingline Loans (other than U.K. Swingline Letters of Credit) may not
exceed $40,700,000 at any time and (ii) the sum of the aggregate
maximum outstanding Letter of Credit Usage in respect of the Dollar
Equivalent of all Letters of Credit plus the aggregate maximum
outstanding U.K. Swingline Letter of Credit Usage in respect of the
Dollar Equivalent of all U.K. Swingline Letters of Credit may not
exceed $10,000,000 at any time; provided, however, that the aggregate
principal amount of all outstanding Revolving Loans may be increased
so that the aggregate principal amount of all outstanding Revolving
Loans and the aggregate Dollar Equivalent of all outstanding Swingline
Loans (other than U.K. Swingline Letters of Credit) exceeds
$40,700,000, solely by an amount equal to any amount drawn under any
Letter of Credit or any U.K. Swingline Letter of Credit but, (1) in no
event may the aggregate principal amount of all outstanding Revolving
Loans, the aggregate Dollar Equivalent of all outstanding Swingline
Loans and the Dollar Equivalent of Letter of Credit Usage exceed
$50,700,000 at any time and (2) if the aggregate principal amount of
all outstanding Revolving Loans and the aggregate Dollar Equivalent of
all outstanding Swingline Loans (other than U.K. Swingline Letters of
Credit) exceeds $40,700,000 solely because of a drawing under a Letter
of Credit or a U.K. Swingline Letter of Credit, then the $10,000,000
limit set forth in clause (ii) shall be reduced by such amount drawn
under such Letter of Credit or such U.K. Swingline Letter of Credit."
(M) Clause (iv) appearing in Section 1.13(a) of the Agreement
is hereby amended in its entirety to read as follows:
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"(iv) the U.S. Borrowers shall not request that any Issuing Bank
issue, and no Issuing Bank shall issue, any Letter of Credit if, after
giving effect to such issuance and the issuance of all other requested
Letters of Credit, the sum of the then outstanding Letter of Credit
Usage in respect of the Dollar Equivalent of all Letters of Credit
plus the outstanding U.K. Swingline Letter of Credit Usage in respect
of the Dollar Equivalent of all U.K. Swingline Letters of Credit (in
each case, including, without limitation, any increase in the amount
that may become available under any Letter of Credit or U.K. Swingline
Letter of Credit then outstanding or being requested pursuant to the
terms of such Letter of Credit or U.K. Swingline Letter of Credit, as
applicable) would exceed $10,000,000"
(N) Subsections 2 and 3 of Section 1.13(f) of the Agreement
are hereby amended in their entirety to read as follows:
"(2) The Applicable Borrower agrees to pay to the Administrative
Agent for distribution to each Bank having a Revolving Loan Commitment
in respect of each Letter of Credit outstanding, such Bank's pro rata
share of a commission equal to 3.50% per annum of the maximum amount
available from time to time to be drawn under such outstanding Letters
of Credit, payable in arrears on and through the last day of each
month and calculated on the basis of a 360-day year and the actual
number of days elapsed. Upon the happening and during the continuance
of an Event of Default described in Section 8.01, the commission
referred to in the preceding sentence shall be 5.50% per annum.
(3) The Applicable Borrower agrees to pay to each Issuing Bank in
respect of each Letter of Credit a commission equal to .125% per annum
of the maximum amount available at any time to be drawn under such
Letter of Credit issued by such Issuing Bank, payable in arrears on
and through the last day of each month and calculated on the basis of
a 360-day year and the actual number of days elapsed or, if the
maximum amount available to be drawn under such Letter of Credit is
the Dollar Equivalent of $40,000 or less, $500 per annum, payable in
arrears on the last day of each month."
(O) The parenthetical phrase appearing in the proviso at the
end of Section 1.13(g) of the Agreement is hereby amended in its entirety to
read as follows:
"(as determined by a final judgment of a court of competent
jurisdiction)."
(P) The last paragraph of Section 1.13(i) of the Agreement is
hereby amended by deleting the words "or out of the wrongful dishonor by such
Issuing Bank of a proper demand for payment under the Letters of Credit issued
by it" appearing therein and inserting the parenthetical phrase "(as determined
by a final judgment of a court of competent jurisdiction)" in lieu thereof.
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(Q) Section 1.14 of the Agreement is hereby amended (i) by
deleting the following parenthetical phrase "(or, with respect to Pounds
Sterling loans referred to in paragraph (a), the U.K. Swingline Bank)" appearing
in the first paragraph of such section and (ii) by adding the following new
section to the end thereof:
"(g) all U.K. Swingline Loans and Canadian Swingline Loans,
plus all Letter of Credit Usage on the day of any
requested Borrowing comprised of Revolving Loans and/or
U.S. Swingline Loans."
(R) The following new sections are hereby added at the end
of Section 1 of the Agreement:
"1.18. Reporting by the Swingline Banks.
Each of the Swingline Banks hereby agrees that on
each Business Day, by no later than 12:00 noon (New
York City time), it shall notify the Administrative
Agent in writing of (a) the aggregate outstanding
principal amount of Swingline Loans and any other
credit accommodations made by such Swingline Bank to
the Borrowers (including, without limitation, any
Swingline Loan or credit accommodation to be made by
the applicable Swingline Bank on such Business Day)
and (b) the nature of any such other credit
accommodations.
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1.19. U.K. Swingline Letters of Credit. (a) U.K. Swingline
Letters of Credit. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of
the Borrowers set forth herein and in the other Credit Documents, the
U.K. Borrower may request, in accordance with the provisions of this
Section 1.19 that the U.K. Swingline Bank issue U.K. Swingline Letters
of Credit for the account of the U.K. Borrower; provided that (i) the
U.K. Borrower shall not request the U.K. Swingline Bank issue any U.K.
Swingline Letter of Credit and the U.K. Swingline Bank shall not issue
any U.K. Swingline Letter of Credit, if after giving effect to such
issuance the sum of (A) the Dollar Equivalent amount of U.K. Swingline
Letter of Credit Usage on the date of such issuance, after giving
effect to the issuance of all U.K. Swingline Letters of Credit subject
to outstanding requests for issuance, plus (B) the Dollar Equivalent
amount of U.K. Swingline Loans (exclusive of U.K. Swingline Letters of
Credit) then outstanding, after giving effect to the making of all
U.K. Swingline Loans then requested by all outstanding but unfunded
Notices of Borrowing, would exceed the Total U.K. Swingline Loan
Commitment then in effect; (ii) the U.K. Borrower shall not request
that the U.K. Swingline Bank issue any U.K. Swingline Letter of Credit
and the U.K. Swingline Bank shall not issue any U.K. Swingline Letter
of Credit if after giving effect to such issuance, the sum of the
amount described in clause (i) above, plus the Dollar Equivalent of
Letter of Credit Usage on the date of such issuance after giving
effect to the issuance of all Letters of Credit subject to outstanding
requests for issuance, plus the Dollar Equivalent of Revolving Loans
and Swingline Loans (other than U.K. Swingline Loans) then outstanding
after giving effect to the making of all Revolving Loans and Swingline
Loans (other than U.K. Swingline Loans) then requested would exceed
(x) the Borrowing Base as shown in the Borrowing Base Certificate that
was last delivered pursuant to Section 6.01; provided such Borrowing
Base Certificate was required to be delivered pursuant to and was in
compliance with Section 6.01 or was delivered after the Borrowing Base
Certificate last required to be delivered pursuant to Section 6.01 or
(y) the limitations set forth in Section 1.12 or (z) the Total
Revolving Loan Commitment then in effect; (iii) the U.K. Borrower
shall not request that the U.K. Swingline Bank issue any U.K.
Swingline Letter of Credit which would cause any of the limitations
set forth in Section 1.12, Section 1.13 or elsewhere in this Agreement
to be violated; and (iv) in no event shall the U.K. Swingline Bank
issue any U.K. Swingline Letter of Credit having an expiration date
later than thirty (30) Business Days prior to the Revolving Maturity
Date (after giving effect to any possible renewal of such U.K.
Swingline Letter of Credit).
Each U.K. Swingline Letter of Credit may provide that the U.K.
Swingline Bank may (but shall not be required to) pay the beneficiary
thereof upon the occurrence of an Event of Default and the
acceleration of the maturity of the U.K. Swingline Loans or, if
payment is not then due to the beneficiary, provide for the deposit of
funds in an account to secure payment to the beneficiary and that any
funds so deposited shall be paid to the beneficiary of the U.K.
Swingline Letter of Credit if conditions to such payment are satisfied
or returned to the U.K. Swingline Bank (or, if all Obligations shall
have been paid in full, to the U.K. Swingline Borrower) if no payment
to the beneficiary has been made and the final date available for
drawings under the applicable U.K. Swingline Letter of Credit has
passed. Each payment or deposit of funds by the U.K. Swingline Bank as
provided in this paragraph shall be treated for all purposes of this
Agreement as a drawing duly honored by the U.K. Swingline Bank under
the related U.K. Swingline Letter of Credit.
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(b) Request for Issuance. Whenever the U.K. Borrower desires the
issuance of a U.K. Swingline Letter of Credit, it shall deliver to the
U.K. Swingline Bank (with a copy to the Administrative Agent) a
request for issuance of a U.K. Swingline Letter of Credit no later
than Noon (London time) at least three Business Days, or such shorter
period as may be agreed to by the U.K. Swingline Bank in any
particular instance, in advance of the proposed date of issuance;
provided that a U.K. Swingline Letter of Credit denominated in a
currency other than U.S. Dollars, Canadian Dollars or Pounds Sterling
will be issued as soon as available, which may be more than three
Business Days after the request therefor. The request for issuance
with respect to any U.K. Swingline Letter of Credit shall specify (i)
the proposed date of issuance (which shall be a business day in London
and Chicago) of such U.K. Swingline Letter of Credit, (ii) the face
amount and currency of such U.K. Swingline Letter of Credit, (iii) the
expiration date of such U.K. Swingline Letter of Credit and (iv) the
name and address of the beneficiary of such U.K. Swingline Letter of
Credit. Prior to the date of issuance, the U.K. Borrower shall specify
a precise description of the documents and the verbatim text of any
certificate to be presented by the beneficiary of such U.K. Swingline
Letter of Credit which, if presented by such beneficiary prior to the
expiration date of the U.K. Swingline Letter of Credit, would require
the U.K. Swingline Bank to make payment under the U.K. Swingline
Letter of Credit; provided that the U.K. Swingline Bank, in its sole
judgment, may require changes in any such documents and certificates;
and provided, further, that no U.K. Swingline Letter of Credit shall
require payment against a conforming draft to be made thereunder
earlier than Noon in the time zone of the U.K. Swingline Bank on the
Business Day (which shall be a business day under the laws of London
and Chicago) three Business Days following the Business Day (which
shall be a Business Day under the laws of London and Chicago) that
such draft is presented. In determining whether to pay under any U.K.
Swingline Letter of Credit, the U.K. Swingline Bank shall be
responsible only to determine that the documents and certificates
required to be delivered under that U.K. Swingline Letter of Credit
have been delivered and that they comply on their face with the
requirements of that U.K. Swingline Letter of Credit.
Following the occurrence of a Default or an Event of Default, the
U.K. Swingline Bank may require the U.K. Borrower to deposit cash
collateral with the U.K. Swingline Bank having a value, as determined
by the U.K. Swingline Bank, equal to 105% of the aggregate face amount
of all U.K. Swingline Letters of Credit.
11
(c) Payment of Amounts Drawn Under U.K. Swingline Letters of
Credit. In the event of any request for drawing under any U.K.
Swingline Letter of Credit by the beneficiary thereof, the U.K.
Swingline Bank shall notify the U.K. Borrower and the Administrative
Agent on or before the date on which the U.K. Swingline Bank intends
to honor such drawing, and the U.K. Borrower shall reimburse the U.K.
Swingline Bank on the day on which such drawing is honored in an
amount in same day funds equal to the amount of and in the same
currency as such drawing; provided that, anything contained in this
Agreement to the contrary notwithstanding, (i) unless the U.K.
Borrower shall have notified the U.K. Swingline Bank and the
Administrative Agent prior to Noon (London time) on the Business Day
of the date of such drawing that the U.K. Borrower intends to
reimburse the U.K. Swingline Bank for the amount of such drawing with
funds other than the proceeds of U.K. Swingline Loans, the U.K.
Borrower shall be deemed to have timely given a Notice of Borrowing to
the U.K. Swingline Bank requesting U.K. Swingline Loans on the
Business Day following the date on which such drawing is honored in an
amount equal to the Dollar Equivalent amount of such drawing, and (ii)
the U.K. Swingline Bank shall, on the date of such drawing, make U.K.
Swingline Loans in the amount of such drawing, the proceeds of which
shall be applied to reimburse the U.K. Swingline Bank for the Dollar
Equivalent amount of such drawing.
(d) Compensation.
(i) The U.K. Borrower agrees to pay the following amounts with
respect to all U.K. Swingline Letters of Credit:
(x) with respect to drawings made under any U.K. Swingline
Letter of Credit, interest, payable on demand, on the amount paid
by the U.K. Swingline Bank in respect of each such drawing from
and including the date of the drawing through the date such
amount is reimbursed by the U.K. Borrower (including any such
reimbursement out of the proceeds of Swingline Loans pursuant to
Section 1.19(c)) at a rate which is equal to the interest rate
then applicable to U.K. Swingline Loans for the period from the
date of such drawing to and including the first Business Day
after the date of such drawing and thereafter at a rate equal to
2% per annum in excess of the rate of interest otherwise payable
under this Agreement for U.K. Swingline Loans during such period;
provided that amounts reimbursed after 2:00 p.m. (London time) on
any date shall be deemed to be reimbursed on the next succeeding
Business Day;
(y) with respect to the issuance, amendment or transfer of
each U.K. Swingline Letter of Credit and each drawing made
thereunder, documentary and processing charges in accordance with
the U.K. Swingline Bank's standard schedule for such charges in
effect at the time of such amendment, transfer or drawing, as the
case may be.
12
(ii) The U.K. Borrower agrees to pay to the U.K. Swingline
Bank in respect of each U.K. Swingline Letter of Credit
outstanding for the sole account of the U.K. Swingline Bank a
commission equal to 3.50% per annum of the maximum amount
available from time to time to be drawn under such outstanding
U.K. Swingline Letters of Credit, payable in arrears on and
through the last day of each month and calculated on the basis of
a 360-day year and the actual number of days elapsed or such
other basis as may be agreed to between the U.K. Swingline Bank
and the U.K. Borrower. Upon the happening and during the
continuance of an Event of Default, the commission referred to in
the preceding sentence shall be 5.50% per annum. In addition, the
U.K. Borrower agrees to pay to the U.K. Swingline Bank an amount
equal to any costs incurred by the U.K. Swingline Bank as a
result of funding any deposit or other reserve or charge required
by the Bank of England or any other authority which replaces all
or any of its functions and any charge imposed by the Financial
Services Authority or any other authority which replaces all or
any of its functions.
(e) Obligations Absolute. The obligation of the U.K.
Borrower to reimburse the U.K. Swingline Bank for drawings made
under the U.K. Swingline Letters of Credit issued by it shall be
unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement under all
circumstances including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of any U.K.
Swingline Letter of Credit;
(ii) the existence of any claim, setoff, defense or other
right that the U.K. Borrower or any Affiliate of the U.K.
Borrower or any other Person may have at any time against a
beneficiary or any transferee of any U.K. Swingline Letter of
Credit (or any persons or entities for whom any such beneficiary
or transferee may be acting), the U.K. Swingline Bank, any Bank
or any other Person, whether in connection with this Agreement,
the transactions contemplated herein or any unrelated
transaction;
(iii) any draft, demand, certificate or any other document
presented under any U.K. Swingline Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) payment by such U.K. Swingline Bank under any U.K.
Swingline Letter of Credit against presentation of a demand,
draft or certificate or other document that does not comply with
the terms of such U.K. Swingline Letter of Credit;
13
(v) any other circumstance or happening whatsoever that is
similar to any of the foregoing; or
(vi) the fact that a Default or Event of Default shall have
occurred and be continuing;
provided, in each case, that payment by the U.K. Swingline Bank
under the applicable U.K. Swingline Letter of Credit shall not have
constituted gross negligence or willful misconduct of the U.K.
Swingline Bank under the circumstances in question (as determined by a
final judgment of a court of competent jurisdiction).
(f) Additional Payments. If by reason of (i) any change after the
effective date of Amendment No. 2 in applicable law, regulation, rule,
decree or regulatory requirement or any change in the interpretation
or application by any judicial or regulatory authority of any law,
regulation, rule, decree or regulatory requirement or (ii) compliance
by the U.K. Swingline Bank with any directive, request or requirement
(whether or not having the force of law) of any governmental or
monetary authority including, without limitation, Regulation D:
(x) the U.K. Swingline Bank shall be subject to any tax, levy,
charge or withholding of any nature or to any variation thereof
(except for changes in the rate of tax imposed on the net income or
net profits of such Bank or any tax on or measured by the capital of
the U.K. Swingline Bank or any franchise tax based on the net income
or net profits of such Bank, in any case pursuant to the laws of the
jurisdiction in which its principal office or applicable lending
office is located) or to any penalty with respect to the maintenance
or fulfillment of its obligations under this Section 1.19, whether
directly or by such being imposed on or suffered by the U.K. Swingline
Bank;
(y) any reserve, deposit or similar requirement is or shall be
applicable, imposed or modified in respect of any U.K. Swingline
Letter of Credit issued by the U.K. Swingline Bank; or
(z) there shall be imposed on the U.K. Swingline Bank any other
condition regarding this Section 1.19 or any U.K. Swingline Letter of
Credit;
14
and the result of the foregoing is to directly or indirectly
increase the cost to the U.K. Swingline Bank of issuing, making or
maintaining any U.K. Swingline Letter of Credit, or to reduce the
amount receivable in respect thereof by the U.K. Swingline Bank, then
and in any such case the U.K. Swingline Bank shall, as promptly as
practical, but in any event within 90 days, after the U.K. Swingline
Bank obtains actual knowledge that the additional cost is incurred or
the amount received is reduced, notify the U.K. Borrower and the U.K.
Borrower shall pay on demand such amounts as the U.K. Swingline Bank
may specify to be necessary to compensate the U.K. Swingline Bank for
such additional cost or reduced receipt, together with interest on
such amount from the date demanded until payment in full thereof at a
rate per annum equal at all times to the rate applicable to U.K.
Swingline Loans then in effect; provided, however, that if the U.K.
Swingline Bank fails to give such notice within 90 days after it
obtains actual knowledge of such an event, the U.K. Swingline Bank
shall, with respect to compensation payable pursuant to this Section
1.19(f), only be entitled to payment under this Section 1.19(f) for
such costs or other amounts from and after the date 90 days prior to
the date that the U.K. Swingline Bank does give such notice. A
certificate in reasonable detail as to the amount of such increased
cost or reduced receipt, submitted to the U.K. Borrower and the
Administrative Agent by the U.K. Swingline Bank, as the case may be,
shall, absent manifest error, be final, conclusive and binding for all
purposes.
(g) Indemnification; Nature of U.K. Swingline Bank's Duties. In
addition to amounts payable as elsewhere provided in this Section
1.19, without duplication, the U.K. Borrower hereby agrees to protect,
indemnify, pay and save the U.K. Swingline Bank harmless from and
against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including reasonable attorneys' fees and
allocated costs of internal counsel) which such Bank may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance
of the U.K. Swingline Letters of Credit or (ii) the failure of the
U.K. Swingline Bank to honor a drawing under any U.K. Swingline Letter
of Credit as a result of any Governmental Act.
15
As between the U.K. Borrower and the U.K. Swingline Bank,
the U.K. Borrower assumes all risks of the acts and omissions of,
or misuse of the U.K. Swingline Letters of Credit issued by the
U.K. Swingline Bank at the U.K. Borrower's request by the
respective beneficiaries of such U.K. Swingline Letters of
Credit. In furtherance and not in limitation of the foregoing,
the U.K. Swingline Bank shall not be responsible: (i) for the
form, validity, sufficiency, accuracy, genuineness or legal
effects of any document submitted by any party in connection with
the application for and issuance of such U.K. Swingline Letters
of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any
such U.K. Swingline Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of any such U.K. Swingline Letter of
Credit to comply fully with conditions required in order to draw
upon such U.K. Swingline Letter of Credit; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they are in cipher; (v) for errors in
interpretation of technical terms; (vi) for any loss or delay in
the transmission or otherwise of any document required in order
to make a drawing under any such U.K. Swingline Letter of Credit
or of the proceeds thereof; (vii) for the misapplication by the
beneficiary of any such U.K. Swingline Letter of Credit of the
proceeds of any drawing under such U.K. Swingline Letter of
Credit; and (viii) for any consequences arising from causes
beyond the control of the U.K. Swingline Bank, including, without
limitation, any Government Acts. None of the above shall affect,
impair, or prevent the vesting of any of the U.K. Swingline
Bank's rights or powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or
omitted by the U.K. Swingline Bank in connection with the U.K.
Swingline Letters of Credit issued by it or the related
certificates, if taken or omitted in good faith, shall not put
the U.K. Swingline Bank under any resulting liability to the U.K.
Borrower.
Notwithstanding anything to the contrary contained in this
Section 1.19, the U.K. Borrower shall have no obligation to
indemnify the U.K. Swingline Bank in respect of any liability
incurred by the U.K. Swingline Bank arising solely out of and to
the extent of the gross negligence or willful misconduct of the
U.K. Swingline Bank (as determined by a final judgment of a court
of competent jurisdiction)."
(S) Section 2.01 of the Agreement is hereby amended by
inserting the phrase "once the Total Revolving Loan Commitment
has been reduced to zero," immediately after the number "(ii)"
appearing in the ninth line of such section.
(T) Section 2.03(a) of the Agreement is hereby amended by
(i) deleting the figure "1/2%" appearing in the first sentence
thereof and inserting the figure "3/4%" in lieu thereof and (ii)
by amending the second sentence thereof in its entirety to read
as follows:
16
"Accrued Commitment Commission shall be due and payable
monthly in arrears on the last Business Day of each month,
commencing with August 31, 1999 and on the Revolving Loan
Commitment Termination Date, based on the actual number of days
elapsed over a year of 360 days."
(U) The following new section is hereby added at the end of
Section 2.03 of the Agreement:
"(c) The Company agrees to pay The First National Bank of
Chicago, the fees set forth in, and at the times required by,
that certain letter agreement dated July 30, 1999 between the
Company and The First National Bank of Chicago, in respect of the
U.K. Swingline Loan."
(V) The second sentence of Section 2.04 of the Agreement is
hereby amended by inserting the words "which restriction is not
able to be cured if violated" immediately after the words "Dollar
Equivalent amount in this Agreement".
(W) The following new Section is hereby added at the end of
Section 2:
"2.07. Interest Adjustments. If the provisions of this
Agreement or any Note would at any time require payment by a
Borrower to a Bank of any amount of interest in excess of the
maximum amount then permitted by the law applicable to any Loan,
the interest payments to that Bank shall be reduced to the extent
and in such a manner as is necessary in order that such Bank
shall not receive interest in excess of such maximum amount. If,
as a result of the foregoing, a Bank shall receive interest
payments hereunder or under a Note in an amount less than the
amount otherwise provided hereunder, such deficit (hereinafter
called the "Interest Deficit") will, to the fullest extent
permitted by applicable law, cumulate and will be carried forward
(without interest) until the termination of this Agreement.
Interest otherwise payable to a Bank hereunder and under a Note
for any subsequent period shall be increased by the maximum
amount of the Interest Deficit that may be so added without
causing such Bank to receive interest in excess of the maximum
amount then permitted by the law applicable to the Loans.
17
The amount of any Interest Deficit relating to a Loan and a
Note shall be treated as a prepayment penalty and shall, to the
fullest extent permitted by applicable law, be paid in full at
the time of any voluntary prepayment by the Borrowers to the
Banks of all the Loans at that time outstanding pursuant to
Section 3.01 hereof. The amount of any Interest Deficit relating
to a particular Loan and Note at the time of any complete payment
of the Loans at that time outstanding (other than a voluntary
prepayment thereof pursuant to Section 3.01 hereof) shall be
canceled and not paid.
(X) Clause (iv) of the first sentence of Section 3.01 of the
Agreement is hereby amended by inserting the words "or any
Acquisition Term Loans" immediately after the words "any Term
Loans" appearing therein.
(Y) Section 3.01 of the Agreement is hereby amended by
adding the following sentence at the end thereof:
"Notwithstanding anything to the contrary contained herein,
the Sponsor Loans may not be prepaid prior to the Sponsor Loan
Repayment Date."
(Z) Section 3.02(A)(a) of the Agreement is hereby amended by
adding the following proviso at the end thereof:
"provided, however, that prior to the Sponsor Loan Repayment
Date, Non-Sponsor Acquisition Term Loans hereunder shall be
prepaid pursuant to this Section 3.02(A)(a) before any of the
Sponsor Loans are prepaid."
(AA) Section 3.02(A)(b) of the Agreement is hereby amended
by deleting "and (ii)" appearing in the fifth line thereof and
inserting the following in lieu thereof:
",(iii) the borrowing limitations set forth in Section 1.12 and
(iii)"
(BB) Section 3.02(A)(f) of the Agreement is hereby amended
by deleting the parenthetical phrase "(after giving effect to the
ability to reinvest any such Net Cash Proceeds pursuant to
Section 7.17)" appearing therein.
(CC) Section 3.02(A)(f) of the Agreement is hereby amended by adding
the following proviso at the end thereof:
"provided, however, that with respect to the Net Cash
Proceeds received by the Company and/or any of its Subsidiaries
from the sale of the Mondel Brake Business, the Company shall
apply or cause to be applied an amount equal to 50% of such Net
Cash Proceeds as provided in Section 3.02(B)(d)."
(DD) Section 3.02(A)(i) of the Agreement is hereby amended
in its entirety to read as follows:
18
"(i) At the Administrative Agent's discretion, on the
Business Day after the date of receipt thereof by the Company
and/or any of its Subsidiaries, the Company shall apply or cause
to be applied an amount equal to (x) 100% of any insurance
proceeds other than Net Proceeds or insurance proceeds of the
type referred to in clause (y) below (less reasonably incurred
costs to recover) received less any portion of such proceeds not
in excess of $3,000,000 attributable to a casualty, so long as
there exists no Event of Default, that is applied or committed to
be applied within a reasonable period of time to repair or
replace the damaged property; provided that any insurance
proceeds received in respect of an inventory loss shall not be
counted towards the $3,000,000 limit and shall not be required to
be applied as a mandatory prepayment pursuant to this Section
3.02(A)(i), and (y) 100% of any business interruption insurance
proceeds (less reasonably incurred costs to recover) over
$3,000,000 attributable to a casualty, in each case as provided
in Section 3.02(B)(a)."
(EE) Section 3.02(A)(j) of the Agreement is hereby amended
by deleting the figure "$10,000,000" appearing therein and
inserting the figure "$1,000,000" in lieu thereof.
(FF) Section 3.02(A)(k) of the Agreement is hereby amended
by deleting the figure "75%" appearing therein and inserting the
figure "100%" in lieu thereof.
(GG) Section 3.02(B)(a) of the Agreement is hereby amended
by adding the following phrase to the beginning thereof,
immediately preceding the word "Prepayments":
"Subject to the terms and provisions of the Sponsor
Participation Agreement,"
(HH) The following new Section is hereby added at the end of
Section 3.02(B) of the Agreement:
19
"(d) Subject to the terms and provisions of the Sponsor
Participation Agreement, prepayments resulting from the sale of
the Mondel Brake Business to be applied pursuant to this Section
3.02(B)(d) shall be applied as follows: (i) first, on a pro rata
basis among the A Term Loans, the B Term Loans and any
outstanding Acquisition Term Loans as follows: (x) $712,500 of
the applicable Net Cash Proceeds shall be applied in the order of
maturity to the remaining Scheduled A Term Loans Principal
Payments, the remaining Scheduled B Term Loans Principal Payments
and the remaining Scheduled Acquisition Term Loan Principal
Payments and (y) the balance of the applicable Net Cash Proceeds
shall be applied in inverse order of maturity to the remaining
Scheduled A Term Loans Principal Payments, the remaining
Scheduled B Term Loans Principal Payments and the remaining
Scheduled Acquisition Term Loan Principal Payments; provided that
each holder of B Term Loans may, upon reasonable notice to the
Borrowers and the Administrative Agent, decline any such
prepayment, in which case such prepayment shall be applied to
Scheduled A Term Loans Principal Payments and Scheduled
Acquisition Term Loan Principal Payments as aforesaid; (ii)
second, as provided in clauses (ii) and (iii) of Section
3.02(B)(a) above. Amounts applied pursuant to this Section
3.02(B)(d) may not be reborrowed."
(II) Section 3.05(a) of the Agreement is hereby amended by
(i) inserting the words "and U.K. Swingline Letters of Credit"
immediately after the words "Letters of Credit" appearing in the
fourth and fifth lines of such section and (ii) inserting the
words "U.S. Swingline Loans," immediately preceding the words
"U.K. Swingline Loans" in clause (ii) of such section.
(JJ) Section 3.05(b) of the Agreement is hereby amended in
its entirety to read as follows:
20
"(b) Subject to Section 1.10(f), if on any Computation Date
the Administrative Agent shall have determined that (i) the
aggregate outstanding Revolving Loans and the Dollar Equivalent
amount of the Swingline Loans and Letter of Credit Usage exceed
the lesser of (x) the Total Revolving Loan Commitment, (y) the
borrowing limitations set forth in Section 1.12 and (z) the
Borrowing Base as shown in the Borrowing Base Certificate that
was last delivered pursuant to Section 6.01, provided such
Borrowing Base Certificate was required to be delivered pursuant
to and was in compliance with Section 6.01 or was delivered after
the Borrowing Base Certificate last required to be delivered
pursuant to Section 6.01, (ii) the aggregate outstanding U.K.
Swingline Loans exceed the applicable Maximum Swingline Amount,
(iii) the aggregate outstanding Canadian Swingline Loans exceed
the applicable Maximum Swingline Amount, (iv) the aggregate
outstanding Revolving Loans and the Dollar Equivalent amount of
Swingline Loans (other than U.K. Swingline Letters of Credit)
exceed the limitations set forth in Section 1.12, or (v) the sum
of the Dollar Equivalent amount of Letter of Credit Usage plus
the Dollar Equivalent amount of U.K. Swingline Letter of Credit
Usage exceeds $10,000,000, in each such case due to a change in
applicable rates of exchange between U.S. Dollars, on the one
hand, and Pounds Sterling or Canadian Dollars or any other
applicable currency, on the other hand, then the Administrative
Agent shall give notice to the Applicable Borrowers that a
prepayment of Revolving Loans (or, if no Revolving Loans are
outstanding, payment of unreimbursed drawings under Letters of
Credit or, if none thereof, cash collateralization of outstanding
Letters of Credit), U.K. Swingline Loans (or payment of
unreimbursed drawings under U.K. Swingline Letters of Credit or
if none, cash collateralization of outstanding U.K. Swingline
Letters of Credit) or Canadian Swingline Loans is required or
that certain outstanding Letters of Credit or U.K. Swingline
Letters of Credit must be cash collateralized, as the case may
be, under this subsection, and the Applicable Borrowers agree if
such excess shall not have been prepaid or such Letters of Credit
or U.K. Swingline Letters of Credit cash collateralized (as the
case may be) within five (5) Business Days of such notice or if
within five (5) Business Days such excess has not been eliminated
by changes in currency exchange rates, then the Applicable
Borrowers shall make prepayments (by such repayment of Loans,
payment of unreimbursed drawings or cash collateralization) or
shall cash collateralize Letters of Credit or U.K. Swingline
Letters of Credit such that, after giving effect to such
prepayment or payment, cash collateralization and/or changes in
currency exchange rates, (i) the aggregate outstanding Revolving
Loans and the Dollar Equivalent amount of the Swingline Loans and
Letter of Credit Usage do not exceed the lesser of (x) the Total
Revolving Loan Commitments then available pursuant to Section
1.01(d), (y) the borrowing limitations set forth in Section 1.12
or (z) the Borrowing Base as shown in the Borrowing Base
Certificate that was last delivered pursuant to Section 6.01;
provided such Borrowing Base Certificate was required to be
delivered pursuant to and was in compliance with Section 6.01 or
was delivered after the Borrowing Base Certificate last required
to be delivered pursuant to Section 6.01, (ii) the Dollar
Equivalent amount of aggregate outstanding U.K. Swingline Loans
and Canadian Swingline Loans do not exceed the applicable Maximum
Swingline Amount, (iii) the aggregate outstanding Revolving Loans
and the Dollar Equivalent amount of Swingline Loans (other than
U.K. Swingline Letters of Credit) do not exceed the limitations
set forth in Section 1.12, and (iv) the sum of the Dollar
Equivalent amount of Letter of Credit Usage plus the Dollar
Equivalent amount of U.K. Swingline Letter of Credit Usage that
is not cash collateralized does not exceed $10,000,000."
(KK) Section 4.02(c)(i) of the Agreement is hereby amended by
deleting the date "October 31, 1997" appearing therein and inserting
the date "April 30, 1999" in lieu thereof.
(LL) Section 4.02 of the Agreement is hereby amended by adding
the following new section immediately after section (g) appearing
therein:
"(h) Borrowing Certificate. The Administrative Agent shall have
received a Notice of Borrowing."
(MM) Section 4.03 of the Agreement is hereby deleted in its
entirety.
21
(NN) The following new section is hereby added at the end of Section 4
of the Agreement:
"4.05. Conditions Precedent to All U.K. Swingline Letters of
Credit. The right of the U.K. Borrower to obtain the issuance of any
U.K. Swingline Letter of Credit from the U.K. Swingline Bank is
subject to prior or concurrent satisfaction of all of the following
conditions:
(A) Required Documentation. On or prior to the date of issuance
of a U.K. Swingline Letter of Credit, the U.K. Swingline Bank and the
Administrative Agent shall have received, in accordance with the
provisions of Section 1.19, a request for issuance with respect to
such U.K. Swingline Letter of Credit (the furnishing by the U.K.
Borrower of each such request for issuance shall be deemed to
constitute a representation and warranty of the U.K. Borrower to the
effect that the conditions set forth in 4.02 are satisfied as of the
date of delivery and will be satisfied on the relevant date of
issuance), all other information specified in Section 1.19, and such
other documents as the U.K. Swingline Bank may reasonably require in
connection with the issuance of such U.K. Swingline Letter of Credit.
(B) Conditions. On the date of issuance of each U.K. Swingline
Letter of Credit, all conditions precedent described in Section 4.02
shall be satisfied to the same extent as though the issuance of such
Letter of Credit were the making of a Revolving Loan."
(OO) Section 5.05 of the Agreement is hereby amended in its
entirety to read as follows:
"5.05. Use of Proceeds. (a) The proceeds of all A Term Loans and
B Term Loans to be made to the Company hereunder shall be utilized by
the Company to finance the Recapitalization and to pay related fees
and expenses.
(b) Proceeds of the Revolving Loans, proceeds of the Swingline
Loans and the proceeds of the Acquisition Term Loans made on or after
the effective date of Amendment No. 2, shall be utilized for working
capital and other general corporate purposes (including, without
limitation, to finance Acquisitions to the extent permitted by Section
7.22 hereof).
22
(c) The proceeds of all Acquisition Term Loans made hereunder
prior to the effective date of Amendment No. 2 have been utilized to
provide the financing required to consummate acquisitions, to pay
related fees and expenses and to pay Indebtedness permitted by Section
7.04(i), all in accordance with the terms and provisions of this
Agreement as in effect prior to the effective date of Amendment No. 2.
(d) Neither the making of any Loan hereunder, nor the use of the
proceeds thereof, will violate or be inconsistent with the provisions
of Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System."
(PP) The last sentence of the last paragraph of Section 5.11(b)
of the Agreement is hereby amended by deleting the date "October 31,
1997" appearing therein and inserting the date "April 30, 1999" in
lieu thereof.
(QQ) Section 5.11(c) of the Agreement is hereby amended in its
entirety to read as follows:
"(c) On May 25, 1999, the Company delivered to the Banks pro
forma consolidated income projections for the Company and its
Subsidiaries, pro forma consolidated balance sheet projections for the
Company and its Subsidiaries and pro forma consolidated cash flow
projections for the Company and its Subsidiaries, all for the fiscal
years ending October 31, 1999 through October 31, 2002, inclusive (the
"Projected Financial Statements"). The assumptions made in preparing
the Projected Financial Statements are reasonable as of the date of
such projections and as of the effective date of Amendment No. 2 and
all material assumptions with respect to the Projected Financial
Statements are set forth therein, it being recognized by the Banks
that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by
any such projections may differ from the projected results."
(RR) The following new section is hereby added at the end of
Section 5 of the Agreement:
"5.25. Bank Accounts. Attached hereto as Schedule 5.25 is a true
and complete list of each bank account maintained by the Company
and/or any of its Subsidiaries and the balance (if any) required to be
maintained in each such account by the applicable financial
institution where such account is located."
23
(SS) The initial paragraph of each of Section 6 and Section 7 of
the Agreement are hereby amended by adding the following at the end of
each thereof immediately preceding the colon appearing therein:
"and all Letters of Credit and all U.K. Swingline Letters of
Credit have expired or been terminated, cancelled or cash
collateralized in an amount equal to 105% of the face amount of such
Letters of Credit and U.K. Swingline Letters of Credit"
(TT) Section 6.01(l) of the Agreement is hereby amended by
deleting the last sentence appearing therein.
(UU) Section 6.01(m) of the Agreement is hereby amended by
deleting in its entirety the proviso appearing therein.
(VV) Section 6.01 of the Agreement is hereby amended by adding
the following new sections to the end thereof:
"(n) Within twenty (20) Business Days after the last Business Day
of each month, (i) for each bank account maintained by the Company or
any of its Subsidiaries that has either average monthly receipts or an
average monthly balance of $100,000 or more (each a "Specified
Account"), a copy of the summary page (which shows the opening and
closing balances in such account) from the most recently available
monthly bank statement for such account and (ii) a certificate from
the Vice President of Finance, the Treasurer or the Controller of the
Company certifying that attached thereto is a true and complete list
of all Specified Accounts maintained by the Company or any of its
Subsidiaries.
(o) on Thursday of each week (commencing August 19, 1999), a
statement of total cash receipts and total cash disbursements on a
country by country basis for the prior week, together with (A)
comparisons to the amounts set forth in the Company's most recent
projections for such week and (B) projections for the following eight
(8) weeks, including without limitation anticipated payments of Loans,
if any, during such period."
(WW) The first sentence of Section 6.03(b) of the Agreement is
hereby amended by deleting the words "to the extent that such types
and such amounts of insurance are available at commercially reasonable
rates" appearing therein.
(XX) Section 6.13 of the Agreement is hereby amended in its
entirety to read as follows:
24
"From time to time, at the request of the Administrative Agent or
the Required Banks, the Company will participate, and will cause its
chief financial officer to be available for and to participate, in a
meeting with the Agents and the Banks to be held at reasonable
intervals at locations and times requested by the Administrative Agent
and reasonably satisfactory to the Borrowers."
(YY) Section 6.14 of the Agreement is hereby amended in its
entirety to read as follows:
25
"6.14. Pledge of Additional Collateral. Subject to the exceptions
set forth in Section 6.12(b), unless the Administrative Agent in its
reasonable discretion consents to any Additional Collateral (as
hereinafter defined) being excluded from the provisions of this
Section 6.14, within 30 days after the acquisition by the Company or
any of its Subsidiaries of (i) Real Property in the United States, the
United Kingdom or Canada; provided that for purposes of this Section
6.14, leased Real Property shall only be included if manufacturing
operations take place on such leased Real Property, (ii) assets (other
than the Real Property) of the type that would have constituted
Collateral (pursuant to any Security Document on the Closing Date or
Effective Date, as applicable) at the Closing Date or the Effective
Date (this clause (ii) shall include, without limitation, such assets
of any Subsidiary described in clause (iii) below) or (iii) capital
stock or other equity interest of any Subsidiary (other than a
Subsidiary of a Non-Guarantor Subsidiary), which shall be limited to
65% of the capital stock or other equity interest in the case of a
Foreign Subsidiary that is not a pass-through entity and where the
pledge would have the effects set forth in clause (a)(i) or (ii) of
the definition of Non-Guarantor Subsidiary (whether by capital
contribution or acquisition) (collectively, (i), (ii) and (iii); the
"Additional Collateral"), the Company will, and will cause each of its
Subsidiaries to, take all necessary action, including, without
limitation, the filing of appropriate financing statements under the
provisions of the UCC, applicable foreign, domestic or local laws,
rules or regulations in each of the offices where such filing is
necessary or appropriate, entering into or amending Security Documents
or, in the case where the Company or any of its Subsidiaries creates
or acquires a Subsidiary, entering into such additional pledge
agreements and security agreements in form and substance satisfactory
to the Collateral Agent (and, in the case of the acquisition of Real
Property in the United States, the United Kingdom or Canada,
satisfaction of the conditions set forth in Sections 4.01(b)(iv),
4.01(q) and 4.01(u) and, in the case of the acquisition of personal
property, satisfaction of the conditions set forth in Sections
4.01(b)(iv) (upon the request of the Collateral Agent) and 4.01(n)),
to grant to the Collateral Agent a perfected first priority Lien in
such Collateral subject to no other Liens other than Prior Liens and
other Liens expressly permitted by the applicable Security Document
pursuant to and to the full extent required by the Security Documents
and this Agreement. Notwithstanding the foregoing, (i) Non-Guarantor
Subsidiaries and (ii) Foreign Subsidiaries to the extent that
Additional Collateral of such Foreign Subsidiaries consisting of
inventory and receivables is not permitted to be pledged to the Banks
by Indebtedness incurred pursuant to Section 7.04(f), shall not be
required to comply with the provisions of the foregoing sentence. The
Borrowers shall use their reasonable best efforts to limit the
collateral that Foreign Subsidiaries acquired after the Effective Date
shall provide to lenders providing the facilities permitted by
Sections 7.04(f) and 7.04(g). All actions taken by the parties in
connection with the pledge of Additional Collateral, including,
without limitation, costs of counsel for the Agents or the Collateral
Agent, shall be for the account of the Borrowers, which shall pay all
sums due on demand."
(ZZ) The heading of Section 6.15 of the Agreement is hereby amended in
its entirety to read as follows:
"6.15. Security Interests. Further Assurances."
(AAA) The following paragraphs are hereby added at the end of
Section 6.15 of the Agreement:
"Upon the request of the Administrative Agent, the Company will,
and will cause its Subsidiaries to, duly execute and deliver, or cause
to be duly executed and delivered, at the cost and expense of the
Borrowers, such further instruments and documents as may be necessary
in the reasonable judgment of the Administrative Agent to carry out
the provisions and purposes of this Agreement and the other Credit
Documents including, without limitation, documentation to effect
further cash management arrangements requested by the Administrative
Agent.
The Company will, and will cause its Subsidiaries to, promptly
undertake to deliver or cause to be delivered to the Administrative
Agent from time to time such other documentation, consents,
authorizations and approvals in form and substance reasonably
satisfactory to the Administrative Agent, as the Administrative Agent
shall deem reasonably necessary or advisable to perfect or maintain
the Liens of the Agent for the benefit of the Banks."
(BBB) Section 6.18 of the Agreement is hereby deleted in its
entirety.
26
(CCC)Section 6.20 of the Agreement is hereby amended by adding
the following new sections at the end thereof:
"(d) The Company shall, and shall cause its applicable
Subsidiaries to, implement a cash management system acceptable to the
Administrative Agent no later than September 10, 1999; and
(e) No later than September 10, 1999, the Company shall have
delivered to the Administrative Agent (i) a fully executed
Contribution Agreement, (ii) fully executed amendments to certain of
the Credit Documents, (iii) such documents and instruments, all as the
Administrative Agent or its counsel shall reasonably request, in order
to grant, maintain, perfect or confirm the security interests granted
to the Administrative Agent pursuant to the Credit Documents or to
carry out the provisions and purposes of any of the Credit Documents
and (iv) evidence (satisfactory to the Administrative Agent) of the
release of the charge granted by Xxxxxx Material Handling Limited
(formerly known as Xxxxxx Mechanical Handling Limited) ("MMHL") in
favor of ABN-AMRO BANK, N.V. with respect to MMHL's bank accounts at
ABN-AMRO BANK, N.V."
(DDD) Section 7.01 of the Agreement is hereby amended in its
entirety to read as follows:
"7.01. Conduct of Business. The Company will not, and will not
permit any of its Subsidiaries to, engage in any business other than
the business conducted by the Company and its Subsidiaries prior to
the Closing Date, the MHE Business and any businesses or activities
substantially similar thereto. Holdings will not engage in any
business other than holding the capital stock of its Subsidiaries;
provided that Holdings may hold the capital stock of Subsidiaries
which may engage in other businesses so long as (i) management of the
Company and its Subsidiaries continues to devote substantially all of
its time to the affairs of the Company and its Subsidiaries, (ii) no
resources of the Company and its Subsidiaries are utilized in any such
business, except for Dividends permitted by Section 7.08 and (iii)
Holdings may not provide credit support for any such Subsidiary except
for a limited guarantee to the extent of the fair market value of the
shares of such Subsidiary and supported solely by a pledge of the
shares of such Subsidiary."
(EEE) Section 7.03(c) of the Agreement is hereby amended by
deleting the figure "$5,000,000" appearing therein and inserting the
figure "$1,000,000" in lieu thereof.
27
(FFF) Section 7.03(p) of the Agreement is hereby amended by
deleting the figure "$12,500,000" appearing therein and inserting the
figure "$2,500,000" in lieu thereof.
(GGG)Section 7.03 of the Agreement is hereby amended by adding
the following new clause to the end thereof:
"(q) Liens not otherwise permitted by the foregoing clauses (a)
through (o), granted to Persons (who are not Affiliates of the
Company) to secure the obligations of the Company or any of its
Subsidiaries under any contract pursuant to which such Person
receiving the Lien has or will be making progress payments to the
Company or any of its Subsidiaries provided, that the aggregate fair
market value of assets subject to Liens permitted by this Section
7.03(q) may not exceed $10,000,000 at any time."
(HHH) Section 7.04(g) is hereby amended in its entirety to read
as follows:
"(g) up to $11,000,000 aggregate principal amount of Indebtedness
at any one time outstanding of the Company's Subsidiaries, the
jurisdiction of incorporation, organization or formation of which is
located in Mexico, Singapore, South Africa or Australia; provided that
the amount of Indebtedness in each such country shall not exceed the
following: (i) $2,000,000 aggregate principal amount at any one time
outstanding in Mexico; (ii) $2,000,000 aggregate principal amount at
any one time outstanding in Singapore; (iii) $2,000,000 aggregate
principal amount at any one time outstanding in South Africa and (iv)
$5,000,000 aggregate principal amount at any one time outstanding in
Australia."
(III) Section 7.04(e) of the Agreement is hereby amended by
deleting the figure "$5,000,000" and by inserting the figure
"$1,000,000" in lieu thereof.
(JJJ) Section 7.04(f) of the Agreement is hereby amended in its
entirety to read as follows:
"(f) Indebtedness of Foreign Subsidiaries incurred to provide
working capital for Designated Acquisitions in an amount not to exceed
$15,000,000 aggregate principal amount outstanding at any time;"
(KKK) Section 7.04(i) of the Agreement is hereby amended by
deleting the words "a Designated Acquisition" appearing therein and inserting
the words "an Acquisition permitted to be made pursuant to the terms of this
Agreement" in lieu thereof.
28
(LLL) Section 7.04(k) of the Agreement is hereby amended by
deleting the figure "$12,500,000" appearing therein and inserting the figure
"$2,500,000" in lieu thereof.
(MMM) Section 7.05 of the Agreement is hereby amended in its
entirety to read as follows:
"7.05. Capital Expenditures. The Company will not, and will not
permit any of its Subsidiaries to, make Consolidated Capital
Expenditures in any fiscal year for any purpose in excess of the
amounts set forth below for such fiscal year provided, that
Consolidated Capital Expenditures for the fiscal year ended October
31, 1998 shall only be for the period beginning on the Closing Date
and ending on October 31, 1998:
Amount
Fiscal Year ending in Millions
October 31, 1998 ............... $7.5
October 31, 1999 ............... 9.0
October 31, 2000 ................ 6.0
October 31, 2001 ................ 7.5
October 31, 2002 ................ 9.0
October 31, 2003 ................ 9.0
October 31, 2004 ................ 9.0
In addition, the amount of Consolidated Capital Expenditures
permitted by this Section 7.05 for any fiscal year shall be increased
for such year only by an amount equal to 75% of the excess of (x) the
permitted Consolidated Capital Expenditures for the immediately
preceding fiscal year in accordance with the foregoing chart (i.e.
without giving effect to the provisions of this paragraph) over (y)
the amount of Consolidated Capital Expenditures actually made in such
immediately preceding fiscal year."
(NNN) Section 7.06(j) of the Agreement is hereby amended in
its entirety to read as follows:
"(j) investments which the Company and its Subsidiaries are
contractually committed to make pursuant to contracts in existence on
the effective date of Amendment No. 2 as set forth on Schedule 7.06(j)
hereto;"
(OOO) Section 7.06(m) of the Agreement is hereby amended in
its entirety to read as follows:
29
"(m) additional loans, advances and/or investments of a
nature not contemplated by the foregoing clauses (a) through (l)
and (n) through (p); provided that all loans, advances and
investments made in any fiscal year pursuant to this clause (m)
shall not exceed $1,000,000 in the aggregate and $4,000,000 in
the aggregate during the term of this Agreement for the Company
and its Subsidiaries;"
(PPP) Section 7.06(o) of the Agreement is hereby amended in
its entirety to read as follows:
"(o) Designated Acquisitions and any Acquisition permitted under
the terms of this Agreement; and"
(QQQ) Clause (a) of Section 7.07 of the Agreement is hereby
amended by deleting the phrase "of the type described in Section
7.04(b), (c), (d)" appearing therein and inserting the phrase "of
the type described in Section 7.04(b), (c), (d), (h)" in lieu
thereof.
(RRR) Clause (b) of Section 7.07 of the Agreement is hereby
amended by deleting the words "that Indebtedness of the type
described in Section 7.04(i) may be prepaid with Acquisition Term
Loans in accordance with Section 4.03 and" appearing therein.
(SSS)Clause (vi) of Section 7.08 of the Agreement is hereby
amended in its entirety to read as follows:
"(vi) so long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, from and
after the fifth anniversary of the Closing Date, the Company may
pay Dividends to Holdings in order to permit Holdings to pay cash
dividends on the Preferred Stock."
(TTT)Clause (i) of Section 7.09 of the Agreement is hereby
amended in its entirety to read as follows:
"(i) transactions between or among Credit Parties and
Intercompany Advances;"
(UUU)Section 7.09 of the Agreement is hereby amended by
adding the following new clause at the end thereof:
30
"and (ix) any transaction between or among any Credit Party
and any Subsidiary of the Company that is not a Credit Party
which transaction (A) is consented to by the Administrative Agent
in its reasonable discretion or (B) does not involve aggregate
consideration in excess of $250,000 for any one transaction or
does not involve aggregate consideration which when added to the
aggregate consideration involved in all other transactions that
have been permitted by this subclause (B) in excess of
$2,500,000."
(VVV)Clause (v) of Section 7.09 of the Agreement is hereby
amended in its entirety to read as follows:
"(v) payments to Chartwell (x) pursuant to the Chartwell
Financial Advisory Agreement on the Closing Date and (y) for
management services pursuant to the Chartwell Management
Consulting Agreement not to exceed $500,000 in cash on or about
each of April 1 and October 1 of each year, plus reasonable
expenses; provided, in the case of (y), that (A) 50% of such fees
due on each such date shall be deferred by Chartwell pursuant to,
and in accordance with, the Sponsor Participation Agreement until
the Sponsor Loan Repayment Date and (B) 100% of such fees shall
accrue and shall not be paid by the Company at any time after the
occurrence and during the continuance of an Event of Default
pursuant to Section 8.01 until such Event of Default is cured,
whereupon (1) if it is prior to the Sponsor Loan Repayment Date,
50% of such accrued and unpaid fees may be paid and (2) if it is
on or after the Sponsor Loan Repayment Date, 100% of such accrued
and unpaid fees may be paid;"
(WWW) Section 7.10 of the Agreement is hereby amended in its
entirety to read as follows:
"7.10. Total Interest Coverage Ratio. The ratio of (i)
Consolidated EBITDA for the Company and its Subsidiaries to (ii)
Consolidated Interest Expense for the Company and its
Subsidiaries, minus any Sponsor Loan Interest, minus the
aggregate amount of new Sponsor Loans actually funded in cash by
the Sponsors pursuant to, and in accordance with, the Sponsor
Participation Agreement, in each case for or during the Test
Period ending on each date listed below, shall not be less than
the ratio set forth opposite such date below:
Test Period ending Ratio
July 31, 1998 .............. 1.35 to 1.0
October 31, 1998 .......... 1.35 to 1.0
January 31, 1999 .......... 1.35 to 1.0
April 30, 1999 ............ 1.17 to 1.0
July 31, 1999 .............. .77 to 1.0
October 31, 1999 ........... .80 to 1.0
January 31, 2000 ........... .88 to 1.0
April 30, 2000 ............ 1.00 to 1.0
July 31, 2000 ............. 1.13 to 1.0
October 31, 2000 .......... 1.13 to 1.0
January 31, 2001 .......... 1.25 to 1.0
April 30, 2001 ............ 1.50 to 1.0
July 31, 2001 ............. 1.50 to 1.0
October 31, 2001 .......... 1.75 to 1.0
January 31, 2002 .......... 1.75 to 1.0
April 30, 2002 ............ 1.75 to 1.0
July 31, 2002 ............. 1.75 to 1.0
October 31, 2002 .......... 2.00 to 1.0
January 31, 2003 .......... 2.00 to 1.0
April 30, 2003 ............ 2.00 to 1.0
July 31, 2003 ............. 2.00 to 1.0
October 31, 2003 .......... 2.00 to 1.0
January 31, 2004 .......... 2.00 to 1.0
April 30, 2004 ............ 2.00 to 1.0
July 31, 2004 ............. 2.00 to 1.0
October 31, 2004 .......... 2.00 to 1.0
January 31, 2005 .......... 2.00 to 1.0"
(XXX) Section 7.11 of the Agreement is hereby amended by
inserting the letter "(a)" at the beginning thereof, immediately preceding the
words "The Company will".
(YYY)The chart appearing in Section 7.11 of the Agreement is hereby amended
in its entirety to read as follows:
Test Period ending Ratio
April 30, 2001 ..... 1.10 to 1.0
July 31, 2001 ...... 1.10 to 1.0
October 31, 2001 ... 1.10 to 1.0
January 31, 2002 ... 1.10 to 1.0
April 30, 2002 ..... 1.10 to 1.0
July 31, 2002 ...... 1.10 to 1.0
October 31, 2002 ... 1.10 to 1.0
January 31, 2003 ... 1.10 to 1.0
April 30, 2003 ..... 1.10 to 1.0
July 31, 2003 ...... 1.10 to 1.0
October 31, 2003 ... 1.10 to 1.0
January 31, 2004 ... 1.10 to 1.0
April 30, 2004 ..... 1.10 to 1.0
July 31, 2004 ...... 1.10 to 1.0
October 31, 2004 ... 1.10 to 1.0
January 31, 2005 ... 1.10 to 1.0"
31
(ZZZ) The following new section is hereby added at the end of
Section 7.11 of the Agreement, immediately after the chart appearing therein:
"(b) The Company will not permit the ratio of (i) Consolidated EBITDA of
the Company and its Subsidiaries to (ii) the sum of the Consolidated Interest
Expense, plus the Consolidated Capital Expenditures, plus the Consolidated Cash
Taxes in each case for the Company and its Subsidiaries, minus any Sponsor Loan
Interest, minus the aggregate amount of new Sponsor Loans actually funded in
cash by the Sponsors pursuant to, and in accordance with, the Sponsor
Participation Agreement, during or for the Test Period ending on each date
listed below, to be less than the ratio set forth opposite such date below:
Test Period Ratio
July 31, 2000 .97 to 1.00
October 31, 2000 .97 to 1.00
January 31, 2001 1.10 to 1.00"
(AAAA) The chart appearing in Section 7.12(a) of the Agreement is hereby
amended in its entirety to read as follows:
Test Period ending Ratio
April 30, 2001 ............ 5.50 to 1.0
July 31, 2001 ............. 5.35 to 1.0
October 31, 2001 .......... 5.00 to 1.0
January 31, 2002 .......... 4.90 to 1.0
April 30, 2002 ............ 4.75 to 1.0
July 31, 2002 ............. 4.60 to 1.0
October 31, 2002 .......... 4.40 to 1.0
January 31, 2003 .......... 4.20 to 1.0
April 30, 2003 ............ 4.00 to 1.0
July 31, 2003 ............. 4.00 to 1.0
October 31, 2003 .......... 4.00 to 1.0
January 31, 2004 .......... 4.00 to 1.0
April 30, 2004 ............ 4.00 to 1.0
July 31, 2004 ............. 4.00 to 1.0
October 31, 2004 .......... 4.00 to 1.0
January 31, 2005 ......... 4.00 to 1.0"
32
(BBBB) The chart appearing in Section 7.12(b) of the Agreement
is hereby amended in its entirety to read as follows:
Test Period ending Ratio
April 30, 2001 .............. 2.25 to 1.0
July 31, 2001 ............... 2.25 to 1.0
October 31, 2001 ............ 2.25 to 1.0
January 31, 2002 ............ 2.25 to 1.0
April 30, 2002 .............. 2.25 to 1.0
July 31, 2002 ............... 2.25 to 1.0
October 31, 2002 ............ 2.00 to 1.0
January 31, 2003 ............ 2.00 to 1.0
April 30, 2003 .............. 2.00 to 1.0
July 31, 2003 ............... 2.00 to 1.0
October 31, 2003 ............ 2.00 to 1.0
January 31, 2004 ............ 2.00 to 1.0
April 30, 2004 .............. 2.00 to 1.0
July 31, 2004 ............... 2.00 to 1.0
October 31, 2004 ............ 2.00 to 1.0
January 31, 2005 ........... 2.00 to 1.0"
(CCCC) The chart appearing in Section 7.13 of the Agreement is hereby
amended in its entirety to read as follows:
Minimum EBITDA
Test Period ($Millions)
October 31, 1998 ......................... 39.50
January 31, 1999 ........................ 35.60
April 30, 1999 .......................... 30.10
July 31, 1999 ........................... 21.00
October 31, 1999 ........................ 18.25
January 31, 2000 ........................ 20.25
April 30, 2000 .......................... 22.00
July 31, 2000 ........................... 25.50
October 31, 2000 ........................ 29.50
January 31, 2001 ........................ 34.00
April 30, 2001 .......................... 50.40
July 31, 2001 ........................... 50.40
October 31, 2001 ........................ 54.60
January 31, 2002 ........................ 54.60
April 30, 2002 .......................... 57.20
33
July 31, 2002 ....................... 57.20
October 31, 2002 .................... 61.00
January 31, 2003 .................... 61.00
April 30, 2003 ...................... 61.00
July 31, 2003 ....................... 61.00
October 31, 2003 .................... 61.00
January 31, 2004 .................... 61.00
April 30, 2004 ...................... 61.00
July 31, 2004 ....................... 61.00
October 31, 2004 .................... 61.00
January 31, 2005 .................... 61.00
(DDDD) Section 7.17 (a) of the Agreement is hereby amended in its
entirety to read as follows:
"7.17. Asset Sales. (a) The Company will not, and will not permit any
of its Subsidiaries to, make any Asset Sale except (i) the sale of the
Mondel Brake Business and (ii) Assets Sales made after the effective date
of Amendment No. 2 which on an aggregate basis over the remaining term of
this Agreement, do not involve assets having an aggregate fair market value
of more than $3,000,000; provided, that with regard to any Asset Sale
permitted by this Section 7.17: (A) the sale price of the asset(s) subject
to such Asset Sale shall not be less than the fair market value of such
asset(s) at the time of sale thereof, (B) not less than 90% of the
aggregate sale price of the asset(s) subject to such Asset Sale shall be
payable in cash on the date of such sale, (C) any non-cash proceeds
received from such Asset Sale shall be pledged to the Collateral Agent
pursuant to, and in accordance with, the applicable Security Documents and
shall constitute Collateral, (D) if such sale is to an Affiliate, such sale
shall be made in compliance with Section 7.09, and (E) upon the receipt of
Net Cash Proceeds from such Asset Sale, the Company and its Subsidiaries
shall have complied with the mandatory prepayment and Commitment reduction
provisions of this Agreement."
(EEEE) Section 7.18(iv) of the Agreement is hereby amended by
inserting the words "and in existence on the effective date of Amendment
No. 2 or in connection with Acquisitions permitted to be made pursuant to
the terms of this Agreement" immediately after the words "Designated
Acquisitions" appearing therein.
(FFFF) Clauses (ix), (x) and (xi) of Section 7.18 are hereby amended
in their entirety to read as follows:
34
"(ix)reserves for adjustments in connection with any Asset Sale which
reserves are established in accordance with GAAP;
(x) guarantees by the Company of obligations not constituting
Indebtedness of its Subsidiaries; and
(xi) customary indemnification and liquidated damage obligations in
connection with sales of assets not constituting Asset Sales, provided such
obligations (A) are given in the ordinary course of the Company's or the
applicable Subsidiary's business, in accordance with past practices and in
the exercise of the Company's or the applicable Subsidiary's reasonable
judgment and (B) are customary given the type and size of the sales
transaction."
(GGGG) Section 7.20 of the Agreement is hereby amended by deleting the
words "under Section 7.17 hereof" appearing therein and inserting the words
"under this Agreement" in lieu thereof.
(HHHH) The following new sections are hereby added at the end of
Section 7 of the Agreement:
"7.21. Cash Management. The Company will not, and will not permit any
of its Subsidiaries to, (a) open or maintain any bank account other than
the bank accounts listed on Schedule 5.25 hereto, without the
Administrative Agent's prior written consent or (b) maintain balances of
collected funds in any accounts (other than those listed on Schedule 5.25
marked with an asterisk and those accounts with respect to which the
applicable financial institution at which such account is maintained has
executed a letter agreement relating to cash management arrangements in
form and substance satisfactory to the Administrative Agent) in an
aggregate amount for the Company and its Subsidiaries taken together, in
excess of $1,000,000 at any one time.
7.22. Acquisitions. The Company will not, and will not permit any of
its Subsidiaries to, make Acquisitions on or after the effective date of
Amendment No. 2, other than an Acquisition (i) which involves assets to be
used in, or a Person engaged in, the MHE Business, (ii) with respect to
which the Banks shall have received at least five (5) Business Days' prior
written notice from the Company or the applicable Subsidiary and (iii)
which is not otherwise prohibited by this Agreement."
(IIII) Section 8.02 of the Agreement is hereby amended by inserting
the word "Holdings," immediately preceding the words "any Credit Party"
appearing therein.
35
(JJJJ) Section 8.03 of the Agreement is hereby amended in its entirety
to read as follows:
"8.03. Covenants. Holdings or any Credit Party or its respective
Subsidiaries shall (a) default in the due performance or observance by it
of any term, covenant or agreement contained in Section 6.10, 6.12, 6.14,
6.15, 6.16 or Section 7 hereof or Section 1.1 of any Mortgage of Real
Property in the United States or (b) default in the due performance or
observance by it of any other term, covenant or agreement contained in this
Agreement or any Credit Document (other than those referred to in Section
8.01, 8.02, 8.03(a), 8.08 or 8.11) and such default shall continue
unremedied for a period of at least thirty (30) days after the date of such
default; or"
(KKKK) Section 8.04 of the Agreement is hereby amended (i) by
inserting the word "Holdings," at the beginning of subsection (a) thereof
immediately preceding the words "Any Credit Party"; (ii) by inserting the
word "Holdings," immediately preceding the words "all Credit Parties"
appearing in clause (i) of subsection (a) thereof; and by inserting the
word "Holdings," immediately preceding the words "any Credit Party"
appearing in subsection (b) thereof".
(LLLL) Section 8.06 of the Agreement is hereby amended by adding the
words "Employee Benefit Plans or" immediately preceding the words "Foreign
Plans" appearing therein.
(MMMM) Section 8.08 of the Agreement is hereby amended by deleting the
figure "$2,500,000" appearing therein and inserting the figure "$500,000"
in lieu thereof.
(NNNN) Section 8.09 of the Agreement is hereby amended by inserting
the word "Holdings", immediately preceding the words "any Credit Party" and
"all Credit Parties" appearing therein.
(OOOO) The following new section is hereby added to Section 8 of the
Agreement immediately after Section 8.10:
"8.11. Borrowing Base Certificate. The Company shall have failed to
submit any Borrowing Base Certificate to the Administrative Agent within
fifteen (15) Business Days after the end of any month."
(PPPP) Clause (ii) of the last paragraph of Section 8 of the Agreement
is hereby amended by inserting the words "Holdings and" immediately
preceding the words "each Credit Party" appearing therein.
36
(QQQQ) The definition of "A Term Loan Commitment" appearing in Section
9 of the Agreement is hereby amended in its entirety to read as follows:
"`A Term Loan Commitment' means, with respect to each Bank, the amount
set forth (i) opposite such Bank's name on Schedule 1 hereto in the column
entitled "A Term Loan Commitment" or (ii) in any applicable Assignment and
Assumption Agreement to which it may be a party, as the case may be, as
such amount may be reduced from time to time in accordance with the terms
of this Agreement."
(RRRR) The definition of "Account" appearing in Section 9 of the
Agreement is hereby amended by deleting the following words "and including
accounts for goods shipped or goods subject to a progress, percentage of
completion or similar accounting or payment method, which accounts are
unbilled; provided the invoice for such goods is sent within 15 days of the
date the goods were shipped" from clause (i) appearing therein.
(SSSS) The definition of "Acquisition Term Loan Closing Date"
appearing in Section 9 of the Agreement is hereby deleted in its entirety.
(TTTT) The definition of "Acquisition Term Loan Commitment" appearing
in Section 9 of the Agreement is hereby amended in its entirety to read as
follows:
"`Acquisition Term Loan Commitment' means, with respect to each Bank,
the amount set forth (i) opposite such Bank's name on Schedule 1 hereto in
the column entitled "Acquisition Term Loan Commitment" or (ii) in any
applicable Assignment and Assumption Agreement to which it may be a party,
as the case may be, as such amount may be reduced from time to time in
accordance with the terms of this Agreement."
(UUUU) The definition of "B Term Loan Commitment" appearing in Section
9 of the Agreement is hereby amended in its entirety to read as follows:
"`B Term Loan Commitment' means, with respect to each Bank, the amount
set forth (i) opposite such Bank's name on Schedule 1 hereto in the column
entitled "B Term Loan Commitment" or (ii) in any applicable Assignment and
Assumption Agreement to which it may be a party, as the case may be, as
such amount may be reduced from time to time in accordance with the terms
of this Agreement."
(VVVV) The definition of "Bank" appearing in Section 9 of the
Agreement is hereby amended in its entirety to read as follows:
37
"`Bank' or `Banks' means the financial institutions whose names appear
at the foot hereof and any assignee of a Bank pursuant to Section 11.04
hereof, and their respective successors."
(WWWW) The definition of "Borrowing Base" appearing in Section 9 of
the Agreement is hereby amended in its entirety to read as follows:
"`Borrowing Base' means an amount equal to the sum (without any double
counting) of (i) 85% of the Eligible Accounts Receivable; provided that the
advance rate shall be 50% for the additional $10,000,000 of Eligible
Accounts Receivable specified in clause (e) of the definition thereof, (ii)
50% of the Eligible Inventory that is not Work in Process Inventory and
(iii) 35% of Work in Process Inventory."
(XXXX) The definition of "Business Day" appearing in Section 9 of the
Agreement is hereby amended by adding the words "are authorized or required
by law to close" immediately after the parenthetical phrase appearing in
the third and fourth lines thereof.
(YYYY) The definition of "Canadian Swingline Loan Commitment"
appearing in Section 9 of the Agreement is hereby amended in its entirety
to read as follows:
"`Canadian Swingline Loan Commitment' means, with respect to each
Bank, the amount set forth (i) opposite such Bank's name on Schedule 1
hereto in the column entitled "Canadian Swingline Loan Commitment" or (ii)
in any applicable Assignment and Assumption Agreement to which it may be a
party, as the case may be, as such amount may be reduced from time to time
in accordance with the terms of this Agreement."
(ZZZZ) The definition of "Computation Date" appearing in Section 9 of
the Agreement is hereby amended by deleting the words "or the U.K.
Swingline Bank, as the case may be," appearing therein.
(AAAAA) The definition of "Consolidated Capital Expenditures"
appearing in Section 9 of the Agreement is hereby amended in its entirety
to read as follows:
38
"`Consolidated Capital Expenditures" of any Person means, for any
period, the amount required to be included in capital assets on the
consolidated balance sheet of such Person in conformity with GAAP, but
excluding expenditures made in connection with the replacement,
substitution or restoration of assets (i) to the extent financed from
insurance proceeds paid on account of the loss of or damage to the assets
being replaced or restored, (ii) with awards of compensation arising from
the taking by eminent domain or condemnation of the assets being replaced,
(iii) with regard to equipment that is purchased simultaneously with the
trade-in of existing equipment, fixed assets or improvements, the credit
granted by the seller of such equipment for the trade-in of such equipment,
fixed assets or improvements; provided that Consolidated Capital
Expenditures for any such period shall in any event include the cash
purchase price paid in such period in connection with any Acquisition made
on or after the effective date of Amendment No. 2."
(BBBBB The definition of "Contingent Obligations" appearing in Section
9 of the Agreement is hereby amended by deleting the words "and amounts
that are included in Section 7.18" appearing at the end of the first
sentence of such definition.
(CCCCC The definition of "Credit Documents" appearing in Section 9 of
the Agreement is hereby amended by adding the following text "and (v) the
Contribution Agreement" at the end thereof.
(DDDDD The definition of "Designated Acquisition" appearing in Section
9 of the Agreement is hereby amended in its entirety to read as follows:
"`Designated Acquisition' shall mean any Acquisition that (i) was
completed prior to the effective date of Amendment No. 2 and (ii) was
permitted to be made under the terms and provisions of the Credit Agreement
as in effect on the date of such Acquisition."
(EEEEE The parenthetical phrase appearing in the fourth and fifth
lines of the definition of "Eligible Accounts Receivable" appearing in
Section 9 of the Agreement is hereby amended in its entirety to read as
follows:
"(excluding any Unbilled Accounts and any Accounts set forth in
clauses (ii) through (vi) of such definition)"
(FFFFF The definition of "Eligible Inventory" appearing in Section 9
of the Agreement is hereby amended (i) by inserting the words "and goods in
transit between a Credit Party and an Affiliate of a Credit Party" at the
end of clause (B) appearing therein and (ii) by adding the following text
at the end of the first sentence:
"; plus (D) the amount by which Eligible Inventory determined solely
pursuant to clause (A) above shall have been reduced as a result of
percentage of completion accounting provided, such amount has not been
included in the Borrowing Base pursuant to clause (iii) of the definition
thereof."
39
(GGGGG The definition of "Eurodollar Rate" appearing in Section 9 of
the Agreement is hereby amended by adding the following text at the end of
such definition:
"by a percentage equal to 100% minus the then stated maximum rate of
all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) applicable to any
member bank of the Federal Reserve System in respect to Eurocurrency
liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D)"
(HHHHH Clause (e) of the definition of "Excess Cash Flow" appearing in
Section 9 of the Agreement is hereby amended in its entirety to read as
follows:
"(e) for the period from November 1, 1998 through the effective date
of Amendment No. 2, 100% of the funds used on or prior to the date payments
are due under Section 3.02(A)(g), for the applicable period to make
Designated Acquisitions (other than to the extent Acquisition Term Loans or
the $12,500,000 Revolving Loan basket were used in accordance with the
Credit Agreement then in effect)."
(IIIII The definition of "Guarantees" appearing in Section 9 of the
Agreement is hereby amended (i) by deleting the words "U.K. Subsidiary
Guarantee" and inserting the words "U.K. Subsidiary Guarantees" in lieu
thereof and (ii) by deleting the number "6.17" and inserting the phrase
"6.16 or otherwise in connection with the transactions contemplated hereby"
in lieu thereof.
(JJJJJ Clause (viii) of the definition of "Indebtedness" appearing in
Section 9 of the Agreement is hereby amended by deleting the word "net"
appearing therein.
(KKKKK The first proviso of the definition of "Intercompany Advances"
appearing in Section 9 of the Agreement is hereby amended in its entirety
to read as follows:
"provided that the aggregate amount of Intercompany Advances made to a
Foreign Subsidiary of the Company which is a Non-Guarantor Subsidiary shall
not exceed an amount at any time outstanding equal to $14,000,000; and"
(LLLLL Clause (ii) of the second proviso of the definition of
"Intercompany Advances" appearing in Section 9 of the Agreement is hereby
amended by inserting the words "or Acquisitions permitted pursuant to the
terms of this Agreement" immediately after the words "Designated
Acquisitions" appearing therein.
40
(MMMMM The definition of "Interest Margin" appearing in Section 9 of
the Agreement is hereby amended in its entirety to read as follows:
"`Interest Margin' shall mean, in respect of (i) Base Rate Loans,
2.00% and (ii) Reserve Adjusted Eurodollar Loans, 3.50%. The Interest
Margin in respect of Swingline Loans shall be that margin agreed among the
Applicable Borrower, the applicable Swingline Bank and the Administrative
Agent. The Interest Margin in respect of Acquisition Term Loans that are
Sponsor Loans shall be that margin set forth in Section 5 of the Sponsor
Participation Agreement."
(NNNNN The definition of "Letter of Credit" appearing in Section 9 of
the Agreement is hereby amended by inserting the following phrase at the
end thereof:
"but specifically excluding any U.K. Swingline Letter of Credit."
(OOOOO The definition of "Net Cash Proceeds" appearing in Section 9 of
the Agreement is hereby amended in its entirety to read as follows:
41
"`Net Cash Proceeds' means with respect to any Asset Sale: (a) the
aggregate cash proceeds received by the Company or the applicable
Subsidiary (including, without limitation, all cash proceeds received by
way of (i) deferred payment of principal pursuant to a note or installment
receivable or otherwise, but only as and when received and (ii) receivables
retained by the Company or any of its Subsidiaries as part of the sales
consideration), minus (b) reasonable and customary brokerage commissions
and other reasonable and customary fees and direct expenses (including
reasonable and customary fees and expenses of counsel and investment
bankers and reasonable and customary inventory liquidation costs actually
paid by the Company or the applicable Subsidiary) related to such sale,
lease, transfer or other disposition, minus (c) payments made to retire
Indebtedness (other than the Loans) secured by such assets being sold or
otherwise disposed of where payment of such Indebtedness is required in
connection with such sale or disposition provided that (i) with respect to
taxes, expenses shall only include taxes to the extent that taxes are
payable in cash in the current year or in the next succeeding year with
respect to the current year as a result of such Asset Sale; (ii) Net Cash
Proceeds shall not include any amounts or items included in the definition
of Financing Proceeds or Net Financing Proceeds (including in any proviso
appearing therein or exclusion therefrom) and (iii) Net Cash Proceeds shall
not include appropriate amounts to be provided by the Company or a
Subsidiary as a reserve, in accordance with GAAP and approved by the
Administrative Agent, against any liabilities associated with the assets
sold or disposed of in such Asset Sale and retained by the Company or a
Subsidiary after such Asset Sale, including, without limitation, pension
and other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated
with the assets sold or disposed of in such Asset Sale, provided, however,
that at such time as such amounts are no longer reserved or such reserve is
no longer necessary (but in no event longer than 18 months from the receipt
of such proceeds), any remaining amounts shall become Net Cash Proceeds to
be allocated in accordance with the terms of this Agreement."
(PPPPP The definition of "Obligations" appearing in Section 9 of the
Agreement is hereby amended in its entirety to read as follows:
"`Obligations' means all obligations (a) whether, direct or indirect,
contingent or absolute, of every type or description and at any time
existing, of the Borrowers to make due and punctual payment of (i)
principal of and all interest on the Loans, the Commitment Commission, any
reimbursement obligations in respect of Letters of Credit, costs and
attorneys' fees and all other monetary obligations of any of the Borrowers
to any of the Agents, any Issuing Bank or any Bank under or in respect of
this Agreement, any Note, any other Credit Document or any fee letter, (ii)
all amounts payable by any of the Borrowers to any Bank under any Currency
Protection Agreement or Interest Rate Agreement, provided that the
Administrative Agent shall have received written notice thereof within ten
(10) Business Days after execution of such Currency Protection Agreement or
Interest Rate Agreement and (iii) amounts payable to Canadian Imperial Bank
of Commerce in connection with any bank account maintained by any of the
Borrowers or any other Credit Party at Canadian Imperial Bank of Commerce
or any other banking services provided to any of the Borrowers or any other
Credit Party by Canadian Imperial Bank of Commerce with respect to, or in
any way related to, any of the Credit Documents (including, without
limitation, interest accruing at the then applicable rate provided in this
Agreement after the maturity of the Loans and interest accruing at the then
applicable rate provided in this Agreement after the filing of any petition
in bankruptcy or the commencement of any insolvency, reorganization or like
proceeding, relating to any of the Borrowers, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) and
(b) all other obligations of any of the Borrowers or any other Credit Party
pursuant to this Agreement and any other Credit Document."
42
(QQQQQ The definition of "Pledged Securities" appearing in Section 9
of the Agreement is hereby amended in its entirety to read as follows:
"`Pledged Securities' means all Pledged Securities under the U.S.
Security Agreement, the U.K. Security Agreements and the Pledge
Agreements."
(RRRRR The definition of "Real Property" appearing in Section 9 of the
Agreement is hereby amended in its entirety to read as follows:
"`Real Property' means any and all parcels of real property acquired,
leased or otherwise owned by any Credit Party together with, in each case,
all improvements and appurtenant fixtures and equipment, easements and
other property and rights incidental to the ownership, lease or operation
thereof."
(SSSSS Clause (x) of the definition of "Replacement Assets" appearing
in Section 9 of the Agreement is hereby amended by deleting the words "or
in a business similar or reasonably related thereto" appearing therein and
inserting the words "or in a business substantially similar thereto" in
lieu thereof.
(TTTTT The definition of "Revolving Loan Commitment" appearing in
Section 9 of the Agreement is hereby amended in its entirety as follows:
"`Revolving Loan Commitment' means, with respect to each Bank, the
amount set forth (i) opposite such Bank's name on Schedule 1 hereto under
the column entitled "Revolving Loan Commitment," or (ii) in any applicable
Assignment and Assumption Agreement to which it may be a party, as the case
may be, as such amount may be reduced from time to time in accordance with
the terms of this Agreement."
(UUUUU The proviso appearing in the definition of "Swingline Expiry
Date" appearing in Section 9 of the Agreement is hereby amended in its
entirety to read as follows:
"provided that the U.K. Swingline Bank shall give the U.K. Borrower
notice 90 days (or such shorter time period as shall be consented to by the
U.K. Swingline Bank, the U.K. Borrower and the Administrative Agent) in
advance of the then current Swingline Expiry Date of whether the U.K.
Swingline Bank will extend the Swingline Expiry Date with respect to the
U.K. Swingline Loans for a further period of 364 days (or such longer or
shorter period as the U.K. Borrower and the U.K. Swingline Bank may agree)
but not to expire later than the date five Business Days prior to the
Revolving Maturity Date."
43
(VVVVV The definition of "U.K. Swingline Loan" appearing in Section 9
is hereby amended by inserting the following parenthetical phrase at the
end thereof:
"(anysuch documentary letter of credit or guarantee, including any bid
bond or performance bond shall be referred to herein as a "U.K. Swingline
Letter of Credit")"
(WWWWW The definition of "U.K. Swingline Loan Commitment" appearing in
Section 9 of the Agreement is hereby amended in its entirety to read as
follows:
"`U.K. Swingline Loan Commitment' means, with respect to each Bank,
the amount set forth (i) opposite such Bank's name on Schedule 1 hereto
under the column entitled "U.K. Swingline Loan Commitment" or (ii) in any
applicable Assignment and Assumption Agreement to which it may be a party,
as the case may be, as such amount may be reduced from time to time in
accordance with the terms of this Agreement."
(XXXXX The definition of "U.S. Swingline Loan Commitment" is hereby
amended in its entirety to read as follows:
"`U.S. Swingline Loan Commitment' means, with respect to each Bank,
the amount set forth (i) opposite such Bank's name on Schedule 1 hereto
under the column entitled "U.S. Swingline Line Commitment" or (ii) in any
applicable Assignment and Assumption Agreement to which it may be a party,
as the case may be, as such amount may be reduced from time to time in
accordance with the terms of this Agreement."
(YYYYY The following new definitions are hereby added (in the correct
alphabetical sequence) to Section 9 of the Agreement:
44
"`Acquisition' means any transaction pursuant to which the Company or
any of its Subsidiaries (a) acquires equity securities (or warrants,
options or other rights to acquire such securities) of any Person other
than the Company or any Person which is not then a Subsidiary of the
Borrower, pursuant to a solicitation of tenders therefor, or in one or more
negotiated block, market or other transactions not involving a tender
offer, or a combination of any of the foregoing, or (b) makes any Person a
Subsidiary of the Company, or causes any such Person to be merged into the
Company or any of its Subsidiaries, in any case pursuant to a merger,
purchase of assets or any reorganization providing for the delivery or
issuance to the holders of such Person's then outstanding securities, in
exchange for such securities, cash or securities of the Company or any of
its Subsidiaries, or a combination thereof, or (c) purchases all or
substantially all of the business or assets of any Person.
`Additional Sponsor Participation' has the meaning set forth in the
Sponsor Participation Agreement.
`Amendment No. 2' means Amendment No. 2 dated as of August 2, 1999 to
this Agreement.
`Contribution Agreement' means that certain Contribution Agreement (in
form and substance satisfactory to the Administrative Agent) to be executed
by Holdings, the Borrowers and the other Credit Parties, as such agreement
may be amended, supplemented or otherwise modified, renewed or replaced
from time to time.
`Interest Deficit' has the meaning set forth in Section 2.07.
`Mondel Brake Business' means the capital stock or the assets of, and
the business presently conducted by, Mondel.
`Non-Sponsor Acquisition Term Loans' means Acquisition Term Loans that
are not Sponsor Loans.
`Sponsor Loans' has the meaning set forth in the Sponsor Participation
Agreement.
`Sponsor Loan Interest' means, for any period, the aggregate amount of
interest accrued, but not paid in cash, by the U.S. Borrowers in connection
with the Sponsor Loans (pursuant to, and in accordance with, the Sponsor
Participation Agreement) for such period.
`Sponsor Loan Repayment Date' has the meaning set forth in the Sponsor
Participation Agreement.
`Sponsor Participation Agreement' means that certain Participation
Agreement dated as of August 2, 1999 among the Sponsors, Holdings, the
Borrowers, the other Credit Parties and each of the Banks referred to in
Section C of Schedule 1 of such agreement, as such agreement may be
amended, supplemented or otherwise modified, renewed or replaced from time
to time.
`Sponsors' has the meaning set forth in the Sponsor Participation
Agreement.
45
`U.K.Swingline Letter of Credit' has the meaning set forth in the
definition of U.K. Swingline Loan herein.
`U.K. Swingline Letter of Credit Usage' means, as at any date of
determination, the sum of (i) the maximum aggregate amount that is or at
any time thereafter may become available under all U.K. Swingline Letters
of Credit then outstanding plus (ii) the aggregate amount of all drawings
under U.K. Swingline Letters of Credit honored by all U.K. Swingline Banks
and not theretofore reimbursed by the U.K. Borrower.
`Unbilled Accounts' means accounts for goods shipped or goods subject
to a progress, percentage of completion or similar accounting or payment
method, which accounts are unbilled.
`Workin Process Inventory' means Eligible Inventory that is neither
raw materials nor finished goods."
(ZZZZZ The following new section is hereby added at the end of Section
10 of the Agreement:
"10.12. Authorization to Release Lien. The Banks hereby authorize the
Administrative Agent (in its sole discretion) in connection with the sale
or other disposition of any asset included in the Collateral or all of the
capital stock or other equity interests of any Guarantor, to the extent
undertaken in accordance with the terms of this Agreement, to release the
Lien granted to it (for the benefit of Banks) on such asset or capital
stock and/or to release such Guarantor from its obligations under the
Credit Documents; provided, however, that this Section 10.12 does not
modify the provisions of Section 11.12 or Section 7.17 hereof."
(AAAAAA The following new section is hereby added at the end of
Section 11 of the Agreement:
46
"11.18. No Conflict with the Sponsor Participation Agreement.
Notwithstanding anything to the contrary contained in this Agreement, each
payment from or on behalf of Holdings or any Credit Party in respect of any
of the Obligations relating to the Acquisition Term Loans, which payment is
received by the Administrative Agent, shall be distributed by the
Administrative Agent in accordance with the Sponsor Participation
Agreement. In the event of any inconsistency relating to the Acquisition
Term Loans or the rights of the Sponsors with respect thereto, between the
terms of this Agreement or any Acquisition Term Note on the one hand, and
those of the Sponsor Participation Agreement on the other hand, the terms
of the Sponsor Participation Agreement shall control."
(BBBBBB Annex III to the Agreement is hereby deleted in its entirety.
(CCCCCC Schedule 1 and Schedule 5.25 attached hereto are hereby added
to the Agreement.
SECTION 2. Reduction of the Total Revolving Loan Commitment, the Total
U.S. Swingline Loan Commitment, the total U.K. Swingline Loan Commitment
and the Total Canadian Swingline Loan Commitment. Each of the parties
hereto hereby agrees that as of the Effective Date, (a) the Total Revolving
Loan Commitment shall be permanently reduced to $50,700,000, (b) the Total
U.S. Swingline Loan Commitment shall be permanently reduced to $6,000,000,
(c) the Total U.K., Swingline Loan Commitment shall be permanently reduced
to $6,000,000 and (d) the Total Canadian Swingline Loan Commitment shall be
permanently reduced to $3,000,000.
SECTION 3. Amendments to the Credit Documents. Each of the Banks
hereby consents to the Administrative Agent entering into amendments (in
form and substance satisfactory to the Administrative Agent) to certain of
the Credit Documents (other than the Agreement) as the Administrative Agent
shall determine in its sole discretion to cure any ambiguity, to correct or
supplement any provision in any such Credit Document which may be defective
or inconsistent with any other provision in any of the Credit Documents or
with the intent of any of the Credit Documents, or to make any other
provisions with respect to matters or questions arising under any of the
Credit Documents (other than the Agreement); provided that any amendment
shall not adversely affect the interests of the Banks in any material
respect.
SECTION 4. Confirmation and Acknowledgment of the Obligations;
Release. Each of the Borrowers hereby confirms and acknowledges to the
Agents and the Banks that it is validly and justly indebted to the Agents
and the Banks for the payment of all Obligations without offset, defense,
cause of action or counterclaim of any kind or nature whatsoever. Each of
the Credit Parties, on its own behalf and on behalf of its successors and
assigns, hereby waives, releases and discharges the Agents and each Bank
and all of the affiliates of the Agents and each Bank, and all of the
directors, officers, employees, attorneys and agents of the Agents, each
Bank and such affiliates, from any and all claims, demands, actions or
causes of action (known and unknown) arising out of or in any way relating
to the Credit Documents and any documents, agreements, dealings or other
matters connected with any of the Credit Documents, in each case to the
extent arising (x) on or prior to the date hereof or (y) out of, relating
to, actions, dealings or matters occurring on or prior to the date hereof.
The waivers, releases, and discharges in this Section 4 shall be effective
regardless of whether the conditions to this Amendment are satisfied and
regardless of any other event that may occur or not occur after the date
hereof.
47
SECTION 5. Agreement by the Borrowers. Notwithstanding that the
Borrowers may not have received prior notice of the engagement of any
counsel, appraisers, consultants or other advisors by an Agent or a Bank,
the Borrowers hereby agree to pay all out-of-pocket costs and expenses of
each of the Agents and each of the Banks as contemplated by Section 11.01
of the Agreement.
SECTION 6. Conditions to Effectiveness. The effectiveness of this
Amendment is subject to the satisfaction in full of the following
conditions precedent on or before August 2, 1999 (the first date on which
all such conditions have been satisfied being herein referred to as the
"Effective Date"):
(A the Administrative Agent shall have received executed counterparts
of this Amendment, which, when taken together, bear the signatures of
Holdings, each of the Credit Parties and those Banks required by Section
11.12 of the Credit Agreement; and
(B the Administrative Agent shall have received executed counterparts
of the Sponsor Participation Agreement (such term being used in this
Amendment as defined in Section 1(YYYYY) above and which agreement shall
include, among other things, the purchase of a participation in the
unfunded Acquisition Term Loan Commitments of certain of the Banks), which
counterparts, when taken together, bear the signatures of the
Administrative Agent, the Sponsors, the Selling Banks (as such term is
defined in the Sponsor Participation Agreement) and all of the Credit
Parties; and
(C the Company shall have received the $5,000,000 in proceeds from the
Acquisition Term Loan to be made on or before the Effective Date and to be
funded pursuant to and as contemplated by the Sponsor Participation
Agreement; and
(D a borrowing base audit shall have been completed by an independent
audit firm which is acceptable to the Administrative Agent, and the scope
and results of such audit shall in all respects be satisfactory to the
Administrative Agent; and
(E The Administrative Agent (for the benefit of the Agents and the
Banks, as applicable) shall have received the following:
(i) an amendment fee in an amount equal to 1/4% of
each such Bank's Total Commitment (after giving
effect to the reductions set forth in Section 2
above); and
(ii) the payment of all invoiced amounts owing to
any of the Agents and any Bank pursuant to
Section 11.01 of the Agreement after giving
effect to Section 5 of this Amendment; and
(F [intentionally omitted]
48
(G the Borrowers shall have obtained all consents and waivers from any
Governmental Authority or other Person necessary for the execution,
delivery and performance of this Amendment, the Sponsor Participation
Agreement and any other document or transaction contemplated by this
Amendment or the Sponsor Participation Agreement; and
(H No Event of Default (which has not been properly waived in writing)
shall have occurred and then be continuing and no Default or Event of
Default shall occur or be continuing upon the effectiveness of this
Amendment or the Sponsor Participation Agreement or the consummation of the
transactions contemplated by either of the foregoing and the Administrative
Agent shall have received a certificate of the Borrowers with respect to
the foregoing and the matters set forth in subsection (G) above; and
(I all legal matters in connection with this Amendment, the Credit
Documents and/or the Collateral shall be reasonably satisfactory to Xxxxxx,
Xxxxx & Xxxxxxx LLP, counsel for the Administrative Agent.
SECTION 7. Representations and Warranties. Holdings and the Credit
Parties hereby represent and warrant to the Banks that after giving effect
to this Amendment:
(A the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are true and correct in all
material respects on and as of the date hereof as if such representations
and warranties had been made on and as of the date hereof (except to the
extent such representations and warranties expressly relate to an earlier
date); and
(B Holdings and the Credit Parties are in compliance with all the
terms and provisions set forth in the Credit Agreement and the other Credit
Documents and no Default or Event of Default has occurred or is continuing
under the Credit Agreement or will occur upon the effectiveness of this
Amendment or the Sponsor Participation Agreement or the consummation of the
transactions contemplated by either of the foregoing.
SECTION 8. Full Force and Effect. Except as expressly set forth
herein, this Amendment does not constitute a waiver or modification of any
provision of the Credit Agreement or a waiver of any Default or Event of
Default under the Credit Agreement, in either case whether or not known to
any of the Agents or the Banks. Except as expressly amended hereby, the
Credit Agreement shall continue in full force and effect in accordance with
the provisions thereof on the date hereof and the Credit Agreement as
heretofore amended and as amended by this Amendment are hereby ratified and
confirmed. As used in the Credit Agreement, the terms "Credit Agreement",
"this Agreement", "herein", "hereafter", "hereto", "hereof", and words of
similar import, shall, unless the context otherwise requires, mean the
Credit Agreement as amended by this Amendment. References to the terms
"Agreement" or "Credit Agreement" appearing in the Exhibits or Schedules to
the Credit Agreement, shall, unless the context otherwise requires, mean
the Credit Agreement as amended by this Amendment.
49
SECTION 9. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WHICH ARE
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF
NEW YORK.
SECTION 10. Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall constitute an original, but all of
which when taken together shall constitute but one instrument. Signature
pages may be detached from counterpart documents and reassembled to form
duplicate executed originals. Delivery of an executed counterpart of a
signature page of this Amendment by telecopy shall be effective as delivery
of a manually executed counterpart of this Amendment.
SECTION 11. Expenses. Whether or not this Amendment becomes effective
or the transactions contemplated hereby are consummated, each of the
Borrowers agrees, on a joint and several basis, to pay all out-of-pocket
expenses incurred by the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment and any other
documentation contemplated hereby, including, but not limited to, the fees
and disbursements of counsel for the Administrative Agent.
SECTION 12. Headings. The headings of this Amendment are for the
purposes of reference only and shall not affect the construction of, or be
taken into consideration in interpreting, this Amendment.
SECTION 13. Acknowledgment and Consent by the Guarantors.
(A Each Guarantor hereby acknowledges that it has read this Amendment
and consents to the terms hereof and further confirms and agrees that,
notwithstanding the effectiveness of this Amendment, (i) its obligations
under its Guarantee shall not be impaired or affected and (ii) such
Guarantee is, and shall continue to be, in full force and effect and is
hereby confirmed and ratified in all respects.
(B Each Guarantor hereby confirms and acknowledges that it is validly
and justly indebted to the Agents and the Banks for the payment of all of
the Obligations which it has guaranteed, without offset, defense, cause of
action or counterclaim of any kind or nature whatsoever.
50
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their duly authorized officers, all as of the date and
year first written above.
[signature pages follow]
51
BORROWERS:
XXXXXX MATERIAL HANDLING, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
XXXXXX MATERIAL HANDLING, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Manager
XXXXXX MATERIAL HANDLING
EQUIPMENT LIMITED
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Director
MONDEL ULC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
KAVERIT STEEL AND CRANE ULC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
52
GUARANTORS:
MMH HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
MHE TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
PHMH HOLDING COMPANY
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
MATERIAL HANDLING EQUIPMENT
NEVADA CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
CMH MATERIAL HANDLING, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Manager
53
EPH MATERIAL HANDLING, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Manager
HARNISCHFEGER DISTRIBUTION &
SERVICE, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Manager
HPH MATERIAL HANDLING, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Manager
XXXXXX, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Manager
XXXXXX MECHANICAL HANDLING, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
54
MPH CRANE, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
NPH MATERIAL HANDLING, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
PHME SERVICE, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
SPH CRANE & HOIST, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
MHE CANADA ULC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
55
3016117 NOVA SCOTIA ULC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
XXXXXXXXX ULC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
BUTTERS ENGINEERING SERVICES LIMITED
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Director
INVERCOE ENGINEERING LIMITED
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Director
LOWFILE LIMITED
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Director
56
REDCROWN, ULC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Director
MMH (HOLDINGS) LIMITED
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Director
XXXXXX MATERIAL HANDLING LIMITED
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Director
M.M.H. INTERNATIONAL LIMITED
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Director
XXXXXX MATERIAL HANDLING MEXICO
S.A. DE C.V.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Director
57
BIRMINGHAM CRANE & HOIST, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
ARIZONA MOTOR AND CONTROL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
DAJU HOLDINGS LTD.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
OVERHEAD CRANE SERVICE & SUPPLY COMPANY LIMITED
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
OVERHEAD CRANE SERVICE AND SUPPLY COMPANY (SUDBURY) LIMITED
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
58
XXXXXX MATERIAL HANDLING
AUSTRALIA PTY LIMITED
By: /s/ Xxxxxxx Xxxx Xxxxxxx
Name: Xxxxxxx Xxxx Xxxxxxx
Title: Director
XXXXXX JDN PTY LIMITED
By: /s/ Xxxxxxx Xxxx Xxxxxxx
Name: Xxxxxxx Xxxx Xxxxxxx
Title: Director
XXXXXX POWERLEC PTY LIMITED
By: /s/ Xxxxxxx Xxxx Xxxxxxx
Name: Xxxxxxx Xxxx Xxxxxxx
Title: Director
59
BANKS:
CANADIAN IMPERIAL BANK
OF COMMERCE, individually and as
Administrative Agent and Collateral Agent
By:/s/Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Executive Director
CIBC INC.
By:/s/Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Executive Director
CREDIT AGRICOLE INDOSUEZ, individually and as Syndication Agent
By:/s/Xxxxxxx Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Managing Direcot
By:/s/Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: First Vice President
BANKBOSTON, N.A., individually and as
Documentation Agent
By:/s/Xxxxx EC Alto
Name: Xxxxx EC Alto
Title: Vice President
60
ABN-AMRO BANK N.V.
By:/s/Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
By:/s/Xxxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:/s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By:/s/Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By:/s/Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Agent
FIRST UNION NATIONAL BANK
By:/s/Xxxxx Santa Xxxx
Name: Xxxxx Santa Xxxx
Title: Vice President
61
FLEET NATIONAL BANK
By:/s/Xxxxx X. Cure
Name: Xxxxx X. Cure
Title: Executive Director
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc.,
as Collateral Manager
By:/s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
XXXXX BANK N.A.
By:______________________________
Name:
Title:
FLEET BUSINESS CREDIT CORPORATION
By:/s/Xxxx X. Xxxxxx, Xx.
Name: Xxxx X. Xxxxxx, Xx.
Title: Vice President
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company,
Its Investment Manager
By:______________________________
Name:
Title:
XXXXX FARGO BANK, N.A.
By:______________________________
Name:
Title:
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc.,
as its Investment Manager
By:/s/Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By:/s/Payson X. Xxxxxxxxx
Name: Payson X. Xxxxxxxxx
Title: Vice President
CYPRESSTREE INVESTMENT PARTNERS II, LTD.
By: CypressTree Investment ManagementCompany, Inc., as Portfolio Manager
By:/s/Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Principal
62
INDOSUEZ CAPITAL FUNDING IIA,
LIMITED
By: Indosuez Capital, as Portfolio Advisor
By:/s/Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital, as Portfolio Advisor
By:/s/Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
63
Schedule 1
Schedule 5.25
Bank Accounts
