FIRST AMENDMENT
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FIRST AMENDMENT (this "Amendment"), dated as of December 19,
1997, among OMNIQUIP INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), the lenders party to the Credit Agreement referred to below on the
date hereof and immediately before giving effect to this Amendment (the
"Existing Banks"), FIRST UNION NATIONAL BANK, as Administrative Agent (the
"Agent"), and each of the lenders listed on Schedule A hereto (the "New Banks").
All capitalized terms used herein and not otherwise defined shall have the
respective meanings provided such terms in the Credit Agreement referred to
below.
W I T N E S S E T H :
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WHEREAS, the Borrower, the Existing Banks and the Agent are
parties to a Credit Agreement, dated as of November 17, 1997 (the "Credit
Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit
Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Each of the Existing Banks severally and not jointly
hereby sells and assigns to each of the New Banks without recourse and without
representation or warranty (other than as expressly provided herein), and each
New Bank hereby purchases and assumes from each of the Existing Banks, that
interest in and to each of such Existing Bank's rights and obligations in
respect of those Facilities set forth on Schedule B hereto under the Credit
Agreement as of the date hereof which in the aggregate represents such New
Bank's pro rata share (for each such New Bank, its "Pro Rata Share") in such
Facilities as set forth on such Schedule B (calculated after giving effect to
this Amendment), and such Pro Rata Share represents all of the outstanding
rights and obligations under the Credit Agreement in respect of the Facilities
that are being sold and assigned to each New Bank pursuant to this Amendment,
including, without limitation, in the case of any assignment of the outstanding
Term Loans and/or portion of the Total Revolving Loan Commitment, all rights and
obligations with respect to such New Bank's Pro Rata Share of such outstanding
Term Loans and/or portion of the Total Revolving Loan Commitment, respectively.
After giving effect to this Amendment, each Bank's outstanding Term Loans and
Revolving Loan Commitment will be as set forth on Schedule C hereto.
2. In accordance with the requirements of Section 13.04(b)
of the Credit Agreement, on the First Amendment Effective Date (as defined
below), (i) the Credit Agreement shall be amended by deleting Schedule I thereto
in its entirety and by inserting in lieu thereof a new Schedule I in the form of
Schedule C hereto and (ii) the Borrower agrees that it will issue an appropriate
A Term Note, B Term Note and Revolving Note to each Bank in conformity with the
requirements of Section 1.05 of the Credit Agreement.
3. On and after the First Amendment Effective Date, Schedule
II to the Credit Agreement shall be amended by deleting such Schedule in its
entirety and inserting in lieu thereof a new Schedule II in the form of Schedule
D hereto.
4. Each Existing Bank (i) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or any of its Subsidiaries or the performance or observance by the
Borrower or any of its Subsidiaries of any of their obligations under the Credit
Agreement or the other Credit Documents to which they are a party or any other
instrument or document furnished pursuant thereto.
5. Each New Bank (i) confirms that it has received a copy of
the Credit Agreement and the other Credit Documents, together with copies of the
financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Amendment; (ii) agrees that it will, independently
and without reliance upon the Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Transferee under Section
13.04(b) of the Credit Agreement; (iv) appoints and authorizes the Agent and the
Collateral Agent to take such action as agent on its behalf and to exercise such
powers under the Credit Agreement and the other Credit Documents as are
delegated to the Agent and the Collateral Agent by the terms thereof, together
with such powers as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the Credit Agreement are required to be performed by it as a Bank; and (vi)
to the extent legally entitled to do so, agrees to promptly submit the forms
described in Section 13.04(b) of the Credit Agreement.
6. Each of the Existing Banks, the New Banks and the Agent
hereby agree that all amounts accrued with respect to the Term Loans,
Outstanding Revolving Loans and the Total Revolving Loan Commitment prior to the
delivery by such New Bank of the amount referred to in clause (ii) of Section 11
of this Amendment shall be for the account of the Existing Banks, respectively,
and that all such amounts accrued on and after the delivery of such amounts
referred to in clause (ii) of such Section 11 shall be for the account of such
New Bank based upon its relevant Pro Rata Share.
7. In accordance with Section 13.04(b) of the Credit
Agreement, on and as of the date upon which each of the New Banks delivers the
amounts referred to in clause (ii) of Section 11 of this Amendment, each New
Bank shall become a "Bank" under, and for all purposes of, the Credit Agreement
and the other Credit Documents and, notwithstanding
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anything to the contrary in Section 8.13 of the Credit Agreement, the
Administrative Agent shall record the transfers contemplated hereby in the
Register.
8. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
9. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Agent.
10. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
11. Subject to Section 12 of this Amendment, this Amendment
shall become effective on the date (the "First Amendment Effective Date") when
(i) the Borrower, the Agent, each Existing Bank and each New Bank shall have
signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered (including by way of facsimile transmission) the same to
the Agent at its Notice Office and (ii) each New Bank shall have delivered to
the Agent, for the accounts of the Existing Banks, respectively, an amount equal
to such New Bank's relevant Pro Rata Share of the outstanding Term Loans and
Revolving Loans being assigned to such New Bank.
12. Notwithstanding Section 11 of this Amendment, if for any
reason any New Bank shall not have (i) signed a counterpart hereof and delivered
the same to the Agent at its Notice Office and (ii) delivered to the Agent an
amount equal to such New Bank's relevant Pro Rata Share of the outstanding Term
Loans and Revolving Loans being assigned to such New Bank, in each case on or
prior to December 19, 1997, then, if each Existing Bank agrees, this Amendment
shall become effective notwithstanding such failure, provided that (x) Schedule
C shall be modified to delete any such New Bank and such New Bank's relevant Pro
Rata Share shall be reallocated among the Existing Banks in such manner as the
Existing Banks shall agree and (y) the signature pages of this Amendment shall
be deemed revised to delete such New Bank's name therefrom.
13. From and after the First Amendment Effective Date, all
references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
amended hereby.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
OMNIQUIP INTERNATIONAL, INC.
By /s/ Xxxxxx X. Xxxxxxxx
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Title: Vice President and CFO
FIRST UNION NATIONAL BANK
Individually, and as Agent
By /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By /s/ Xxxx Xxxx
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Title: Principal
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NEW BANKS:
BANK OF SCOTLAND
By /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Title: Asst. Vice President
CREDIT AGRICOLE INDOSUEZ
By /s/ Xxxxxxxxx X. Xxxxxx
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Xxxxxxxxx X. Xxxxxx
Title: First Vice President
By /s/ W. Xxxxx Xxxxxx
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W. Xxxxx Xxxxxx
Title: First Vice President
FIRST BANK
By /s/ Xxx Xxxxxxx
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Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ Xxxxx Xxxx
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Title: SVP
FIRSTAR BANK MILWAUKEE, N.A.
By /s/ Xxxx Xxxxx
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Title: Commercial Banking Officer and
Relationship Manager
FLEET CAPITAL CORPORATION
By /s/ Xxxxxx Xxxxx
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Title: Vice President
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THE FUJI BANK, LIMITED
By /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Title: Joint General Manager
XXXXXX TRUST AND SAVINGS BANK
By /s/ signature
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Title: Vice President
M&I XXXXXXXX AND ILSLEY BANK
By /s/ Xxxxxxxx X. Xxxxxxx
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Title: Vice President
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By /s/ Xxxxx Xxxxxxxx
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Xx. Xxxxx Xxxxxxxx
Title: Chief Manager
NATIONAL CITY BANK
By /s/ Xxxxx X. Xxxxxxxx
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Title: Vice President
WACHOVIA BANK, N.A.
By /s/ Xxxx X. Eagle
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Title: Vice President
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