EXHIBIT 10.16
AMENDMENT AND CONSENT NO. 1
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF NOVEMBER 6, 2003
THIS AMENDMENT AND CONSENT NO. 1 TO AMENDED AND RESTATED
CREDIT AGREEMENT ("Amendment") is made as of the "Amendment Effective Date"
(as defined below) by and among XXXXXXX DENVER, INC. (the "Borrower"), the
financial institutions listed on the signature pages hereof as lenders (the
"Lenders"), BANK ONE, NA, individually as a Lender, as LC Issuer, Swing Line
Lender and as agent (the "Agent") for the Lenders under that certain Amended
and Restated Credit Agreement dated as of March 6, 2002 by and among the
Borrower, the Lenders and the Agent (the "Credit Agreement"). Defined terms
used herein and not otherwise defined herein shall have the meaning given to
them in the Credit Agreement.
WITNESSETH
WHEREAS, the Borrower, the Lenders and the Agent are
parties to the Credit Agreement;
WHEREAS, the Borrower intends to consummate the UK
Acquisition (as defined herein) and has provided the Agent with historical
financial statements of the UK Target (as defined herein), pro forma
financial statements for the Borrower after giving effect to the UK
Acquisition on a combined and consolidated basis and drafts of the formal
offer documents to be posted by the Borrower in connection with the UK
Acquisition;
WHEREAS, the Borrower has requested that the Lenders
consent to the UK Acquisition and amend the Credit Agreement in certain
respects; and
WHEREAS, the Lenders party hereto and the Agent are
willing to consent to the UK Acquisition and amend the Credit Agreement, in
each case on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Lenders party hereto and the Agent have
agreed to the following.
1. AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction of
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the conditions precedent set forth in Section 3 below, the Credit Agreement
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is hereby amended as follows:
1.1. ARTICLE I OF THE CREDIT AGREEMENT IS HEREBY AMENDED
TO AMEND CERTAIN DEFINITIONS APPEARING THEREIN IN THE FOLLOWING MANNER:
(a) THE DEFINITION OF APPLICABLE COMMERCIAL FACILITY LC
MARGIN IS HEREBY AMENDED BY INSERTING THE FOLLOWING
SENTENCE AT THE END THEREOF:
Notwithstanding the foregoing, from the date on which the
UK Acquisition is consummated to but not including the
fifth Business Day following receipt of the Borrower's
financial statements delivered pursuant to Section 6.1(i)
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or (ii), as applicable for the next fiscal quarter end or
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fiscal year end to occur after such consummation, the
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Applicable Commercial Facility LC Margin shall be 0.875%.
(b) THE DEFINITION OF APPLICABLE FACILITY FEE IS HEREBY
AMENDED BY INSERTING THE FOLLOWING SENTENCE AT THE END
THEREOF:
Notwithstanding the foregoing, from the date on which the
UK Acquisition is consummated to but not including the
fifth Business Day following receipt of the Borrower's
financial statements delivered pursuant to Section 6.1(i)
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or (ii), as applicable for the next fiscal quarter end or
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fiscal year end to occur after such consummation, the
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Applicable Facility Fee shall be 0.30%.
(c) THE DEFINITION OF APPLICABLE MARGIN IS HEREBY AMENDED
BY INSERTING THE FOLLOWING SENTENCE AT THE END THEREOF:
Notwithstanding the foregoing, from the date on which the
UK Acquisition is consummated to but not including the
fifth Business Day following receipt of the Borrower's
statements delivered pursuant to Section 6.1(i) or (ii),
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as applicable for the next fiscal quarter end or fiscal
year end to occur after such consummation, the Applicable
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Margin shall be 1.45%.
(d) THE DEFINITION OF APPLICABLE STAND-BY FACILITY LC
MARGIN IS HEREBY AMENDED BY INSERTING THE FOLLOWING
SENTENCE AT THE END THEREOF:
Notwithstanding the foregoing, from the date on which the
UK Acquisition is consummated to but not including the
fifth Business Day following receipt of the Borrower's
financial statements delivered pursuant to Section 6.1(i)
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or (ii), as applicable for the next fiscal quarter end or
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fiscal year end to occur after such consummation, the
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Applicable Stand-by Facility LC Margin shall be 1.75%.
(e) THE DEFINITIONS OF CONSOLIDATED EBIT AND CONSOLIDATED
TOTAL DEBT ARE HEREBY DELETED IN THEIR ENTIRETY AND THE
FOLLOWING ARE SUBSTITUTED THEREFOR:
"CONSOLIDATED EBIT" means, for any period of four
consecutive fiscal quarters of the Borrower, on a
consolidated basis for the Borrower and its Subsidiaries
in accordance with Agreement Accounting Principles, the
sum of the
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amounts for such period, without duplication, of (i)
Consolidated Net Income, plus (ii) Consolidated Interest
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Expense to the extent deducted in computing Net Income,
plus (iii) charges against income for all domestic and
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foreign, federal, state and local taxes to the extent
deducted in computing Net Income, plus (iv) restructuring
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charges incurred in the Borrower's fourth fiscal quarter
of 2003 or first fiscal quarter of 2004 to the extent (a)
deducted in computing Net Income, (b) related to costs
associated with the profitability improvement plan of the
Borrower as disclosed in the Borrower's press release
dated October 20, 2003 or as otherwise disclosed to the
Lenders and (c) in an aggregate cumulative amount not in
excess of $2,700,000.
"CONSOLIDATED TOTAL DEBT" means the aggregate of
all Indebtedness (other than (i) Hedging Obligations and
(ii) only for purposes of determining compliance with
Section 6.22, and only until the earlier of (A) the date
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upon which the UK Acquisition has been consummated or
abandoned and (B) April 30, 2004, the UK Acquisition
Advance) on a consolidated basis for the Borrower and its
Subsidiaries as of a referenced date."
1.2. ARTICLE I OF THE CREDIT AGREEMENT IS HEREBY FURTHER
AMENDED TO INSERT THE FOLLOWING NEW DEFINITIONS THERETO:
""APPLICABLE UK ACQUISITION AVAILABILITY FEE"
means, for any day and (notwithstanding anything contained
in Section 8.3 to the contrary) subject to adjustment from
time to time by the Required Lenders and the Borrower,
0.50% per annum.
"BUYING LENDER" is defined in Section 2.27(b) hereof.
"COMMITMENT INCREASE NOTICE" is defined in
Section 2.27(a) hereof.
"EFFECTIVE COMMITMENT AMOUNT" is defined in
Section 2.27(a) hereof.
"LENDER INCREASE NOTICE" is defined in Section
2.27(a) hereof.
"PROPOSED NEW LENDER" is defined in Section
2.27(a) hereof.
"SELLING LENDER" is defined in Section 2.27(b)
hereof.
"UK ACQUISITION" means the acquisition by the
Borrower of all or substantially all of the equity
interests in the UK Target, including the equity interests
of related entities, by means of the UK Tender Offer.
"UK ACQUISITION ADVANCE" means an Advance
hereunder in an aggregate amount up to the UK Acquisition
Commitment Amount to fund the UK Acquisition, which
Advance may occur prior to consummation of the UK
Acquisition.
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"UK ACQUISITION COMMITMENT AMOUNT" means, at any
time the same is to be determined, the Dollar Amount of
(pound)56,000,000 at such time.
"UK ACQUISITION COMMITMENT EFFECTIVE DATE" means
the date upon which the UK Acquisition Advance is made.
"UK ACQUISITION COMMITMENT TERMINATION DATE"
means the earliest of (w) the date upon which the UK
Tender Offer does not comply with any of the applicable UK
Tender Offer Requirements, (x) the date upon which the UK
Acquisition has closed and all conditions precedent to the
effectiveness thereof have been satisfied or waived by the
required parties, (y) June 30, 2004 and (z) the date
specified as such on at least three (3) Business Days'
notice from the Borrower to the Agent.
"UK TARGET" means a company organized under the
laws of England and Wales and previously disclosed to the
Agent.
"UK TENDER OFFER" means an offer, by no later
than November 30, 2003, by the Borrower to purchase
certain of the capital stock of the UK Target in
compliance with the UK Tender Offer Requirements.
"UK TENDER OFFER REQUIREMENTS" means:
(i) the UK Tender Offer becoming
unconditional as to acceptances within 60 days of
the date formal offer documents in connection
therewith are posted by the Borrower;
(ii) the UK Tender Offer becoming
unconditional in all respects within 81 days of
the date such formal offer documents are posted;
(iii) the UK Tender Offer not having
lapsed in accordance with its terms and
conditions;
(iv) the UK Tender having complied with
applicable requirements of The City Code on
Takeovers and Mergers; and
(v) the UK Tender Offer having been
consummated by satisfaction of the conditions
precedent and any other conditions prescribed in
such formal offer documents as originally
posted."
1.3. SECTION 2.4(c) OF THE CREDIT AGREEMENT IS AMENDED TO
INSERT THE FOLLOWING SENTENCE AT THE END THEREOF:
"In addition to the foregoing, if the UK Acquisition has
not been consummated by the earlier of (x) the date upon
which the UK Tender Offer does not comply with the UK
Tender Offer Requirements and (y) June 30, 2004, the
Borrower shall immediately prepay Revolving Loans (to be
applied to such Loans as the
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Borrower shall direct at the time of such payment) in an
amount equal to the aggregate outstanding principal amount
of the UK Acquisition Advance. For purposes of determining
the outstanding principal amount of the UK Acquisition
Advance under this paragraph, any repayments of Revolving
Loans which may have occurred subsequent to the UK
Acquisition Commitment Effective Date but on or prior to
the UK Acquisition Commitment Termination Date shall be
deemed to have been applied to the repayment of all
Advances other than the UK Acquisition Advance."
1.4. SECTION 2.7 IS DELETED IN ITS ENTIRETY AND THE
FOLLOWING IS SUBSTITUTED THEREFOR:
"2.7. Facility Fee; Reductions in Aggregate Revolving Loan
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Commitment. The Borrowers agree to pay to the Agent for
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the pro rata account of the Lenders according to their
Percentages (except as set forth in Section 8.2), a
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facility fee accruing at the rate of the Applicable
Facility Fee per annum based on the sum of the Aggregate
Revolving Loan Commitment (without regards to usage
thereof) plus the then outstanding aggregate principal
amount of the Term Loans, from the date hereof to and
including the Term Loan Final Maturity Date, payable on
each Payment Date hereafter and on the Term Loan Final
Maturity Date (it being understood and agreed that the
Non-U.S. Subsidiary Borrower shall not be liable to pay
any Facility Fees determined to be attributable to the
Borrower). The Borrower may permanently reduce the
Aggregate Revolving Loan Commitment in whole, or in part,
ratably among the Lenders in integral multiples of
$5,000,000 upon at least three Business Days' written
notice to the Agent, which notice shall specify the amount
of any such reduction (the "AGGREGATE REVOLVING LOAN
COMMITMENT REDUCTION NOTICE"); provided, that the amount
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of the Aggregate Revolving Loan Commitment may not be
reduced below the Dollar Amount of the Aggregate
Outstanding Credit Exposure not attributable to Term
Loans. All accrued Facility Fees shall be payable on the
effective date of any termination of the Revolving Loan
Commitments of the Lenders and the obligation of the
Borrowers to pay facility fees with respect to any
Revolving Loan Commitments shall terminate on the date of
any termination of the Revolving Loan Commitments."
1.5. SECTION 2.21(a) OF THE CREDIT AGREEMENT IS HEREBY
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AMENDED BY DELETING IN ITS ENTIRETY THE REFERENCE TO "NOT MORE THAN 180 DAYS
AND" APPEARING IN THE FIRST SENTENCE THEREOF.
1.6. A NEW SECTION 2.27 AND A NEW SECTION 2.28 ARE HEREBY
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ADDED TO THE CREDIT AGREEMENT AND SUCH SECTIONS SHALL READ AS FOLLOWS:
"2.27. UK Acquisition Availability Fee. In addition to the
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other fees payable under this Agreement, the Borrower
agrees to pay to the Agent for the pro rata account of the
Lenders according to their Percentages (except as set
forth in Section 8.2), an availability fee, accruing at
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the rate of the Applicable UK Acquisition Availability Fee
per annum multiplied by the amount of the UK
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Acquisition Advance, from the UK Acquisition Commitment
Effective Date to and including the UK Acquisition
Commitment Termination Date, payable on each Payment Date
hereafter and on the UK Acquisition Commitment Termination
Date (or, if earlier, the date of termination in whole of
the Aggregate Revolving Loan Commitment pursuant to
Section 2.7 hereof or the Commitments pursuant to Section
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8.1 hereof).
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2.28. Increase of Revolving Loan Commitments. (a) At any
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time, the Borrower may request that the Aggregate
Revolving Loan Commitment be increased; provided that,
without the prior written consent of all of the Lenders,
(i) the Aggregate Revolving Loan Commitment shall at no
time exceed $175,000,000 minus the aggregate amount of all
reductions in the Aggregate Revolving Loan Commitment
previously made pursuant to Section 2.27; (ii) the
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Borrower shall not make any such request during the six
month period following any reduction in the Aggregate
Revolving Loan Commitment previously made pursuant to
Section 2.27; (iii) the Borrower shall not be entitled to
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make any such request more frequently than once in each
12-month period; and (iv) each such request shall be in a
minimum amount of at least $10,000,000 and increments of
$5,000,000 in excess thereof. Such request shall be made
in a written notice given to the Agent and the Lenders by
the Borrower not less than twenty (20) Business Days prior
to the proposed effective date of such increase, which
notice (a "COMMITMENT INCREASE NOTICE") shall specify the
amount of the proposed increase in the Aggregate Revolving
Loan Commitment and the proposed effective date of such
increase. In the event of such a Commitment Increase
Notice, each of the Lenders shall be given the opportunity
to participate in the requested increase ratably in
proportions that their respective Revolving Loan
Commitments bear to the Aggregate Revolving Loan
Commitment. No Lender shall have any obligation to
increase its Revolving Loan Commitment pursuant to a
Commitment Increase Notice. On or prior to the date that
is fifteen (15) Business Days after receipt of the
Commitment Increase Notice, each Lender shall submit to
the Agent a notice indicating the maximum amount by which
it is willing to increase its Revolving Loan Commitment in
connection with such Commitment Increase Notice (any such
notice to the Agent being herein a "LENDER INCREASE
NOTICE"). Any Lender which does not submit a Lender
Increase Notice to the Agent prior to the expiration of
such fifteen (15) Business Day period shall be deemed to
have denied any increase in its Revolving Loan Commitment.
In the event that the increases of Revolving Loan
Commitments set forth in the Lender Increase Notices
exceed the amount requested by the Borrower in the
Commitment Increase Notice, the Agent and the Arranger
shall have the right, in consultation with the Borrower,
to allocate the amount of increases necessary to meet the
Borrower's Commitment Increase Notice. In the event that
the Lender Increase Notices are less than the amount
requested by the Borrower, the Agent shall so advise the
Borrower not later than ten (10) Business Days prior to
the proposed effective date, and not later than three (3)
Business Days prior to the proposed effective date the
Borrower may notify the Agent of any financial institution
that shall have agreed to become a "Lender" party hereto
(a "PROPOSED NEW
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LENDER") in connection with the Commitment Increase
Notice. Any Proposed New Lender shall be consented to by
the Agent (which consent shall not be unreasonably
withheld). If the Borrower shall not have arranged any
Proposed New Lender(s) to commit to the shortfall from the
Lender Increase Notices, then the Borrower shall be deemed
to have reduced the amount of its Commitment Increase
Notice to the aggregate amount set forth in the Lender
Increase Notices. Based upon the Lender Increase Notices,
any allocations made in connection therewith and any
notice regarding any Proposed New Lender, if applicable,
the Agent shall notify the Borrower and the Lenders on or
before the Business Day immediately prior to the proposed
effective date of the amount of each Lender's and Proposed
New Lenders' Revolving Loan Commitment (the "EFFECTIVE
COMMITMENT AMOUNT") and the amount of the Aggregate
Revolving Loan Commitment, which amount shall be effective
on the following Business Day. Any increase in the
Aggregate Revolving Loan Commitment shall be subject to
the following conditions precedent: (A) the Borrower shall
have obtained the consent thereto of each Subsidiary party
to the Subsidiary Guaranty (each, a "Guarantor") and its
reaffirmation of the Credit Document(s) executed by it,
which consent and reaffirmation shall be in writing and in
form and substance reasonably satisfactory to the Agent,
(B) as of the date of the Commitment Increase Notice and
as of the proposed effective date of the increase in the
Aggregate Revolving Loan Commitment, all representations
and warranties shall be true and correct in all material
respects as though made on such date and no event shall
have occurred and then be continuing which constitutes a
Default or Unmatured Default, (C) the Borrower, the Agent
and each Proposed New Lender or Lender that shall have
agreed to provide a "Revolving Loan Commitment" in support
of such increase in the Aggregate Revolving Loan
Commitment shall have executed and delivered a "Commitment
and Acceptance" substantially in the form of Exhibit J
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hereto, (D) counsel for the Borrower and for the
Guarantors shall have provided to the Agent supplemental
opinions in form and substance reasonably satisfactory to
the Agent and (E) the Borrower and the Proposed New Lender
shall otherwise have executed and delivered such other
instruments and documents as may be required under Article
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IV or that the Agent shall have reasonably requested in
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connection with such increase. If any fee shall be charged
by the Lenders in connection with any such increase, such
fee shall be in accordance with then prevailing market
conditions, which market conditions shall have been
reasonably documented by the Agent to the Borrower. Upon
satisfaction of the conditions precedent to any increase
in the Aggregate Revolving Loan Commitment, the Agent
shall promptly advise the Borrower and each Lender of the
effective date of such increase. Upon the effective date
of any increase in the Aggregate Revolving Loan Commitment
that is supported by a Proposed New Lender, such Proposed
New Lender shall be a party to this Agreement as a Lender
and shall have the rights and obligations of a Lender
hereunder. Nothing contained herein shall constitute, or
otherwise be deemed to be, a commitment on the part of any
Lender to increase its Revolving Loan Commitment at any
time.
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(b) For purposes of this clause (b), (A) the term "BUYING
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LENDER(S)" shall mean (1) each Lender the Effective
Commitment Amount of which is greater than its Revolving
Loan Commitment prior to the effective date of any
increase in the Aggregate Revolving Loan Commitment, and
(2) each Proposed New Lender that is allocated an
Effective Commitment Amount in connection with any
Commitment Increase Notice and (B) the term "SELLING
LENDER(S)" shall mean each Lender whose Revolving Loan
Commitment is not being increased from that in effect
prior to such increase in the Aggregate Revolving Loan
Commitment. Effective on the effective date of any
increase in the Aggregate Revolving Loan Commitment
pursuant to clause (a) above, each Selling Lender hereby
sells, grants, assigns and conveys to each Buying Lender,
without recourse, warranty, or representation of any kind,
except as specifically provided herein, an undivided
percentage in such Selling Lender's right, title and
interest in and to its Outstanding Credit Exposure in the
respective Dollar Amounts and percentages necessary so
that, from and after such sale, each such Selling Lender's
Outstanding Credit Exposure shall equal such Selling
Lender's Percentage (calculated based upon the Effective
Commitment Amounts) of the Aggregate Outstanding Credit
Exposure. Effective on the effective date of the increase
in the Aggregate Revolving Loan Commitment pursuant to
clause (a) above, each Buying Lender hereby purchases and
accepts such grant, assignment and conveyance from the
Selling Lenders. Each Buying Lender hereby agrees that its
respective purchase price for the portion of the
Outstanding Credit Exposure purchased hereby shall equal
the respective Dollar Amount necessary so that, from and
after such payments, each Buying Lender's Outstanding
Credit Exposure shall equal such Buying Lender's
Percentage (calculated based upon the Effective Commitment
Amounts) of the Aggregate Outstanding Credit Exposure.
Such amount shall be payable on the effective date of the
increase in the Aggregate Revolving Loan Commitment by
wire transfer of immediately available funds to the Agent.
Each Selling Lender hereby represents and warrants to each
Buying Lender that such Selling Lender owns the
Outstanding Credit Exposure being sold and assigned hereby
for its own account and has not sold, transferred or
encumbered any or all of its interest in such Loans,
except for participations which will be extinguished upon
payment to Selling Lender of an amount equal to the
portion of the Outstanding Credit Exposure being sold by
such Selling Lender. Each Buying Lender hereby
acknowledges and agrees that, except for each Selling
Lender's representations and warranties contained in the
foregoing sentence, each such Buying Lender has entered
into its Commitment and Acceptance with respect to such
increase on the basis of its own independent investigation
and has not relied upon, and will not rely upon, any
explicit or implicit written or oral representation,
warranty or other statement of the Lenders or the Agent
concerning the authorization, execution, legality,
validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or the other Credit
Documents. The Borrower hereby agrees to compensate each
Selling Lender for all losses, expenses and liabilities
incurred by each Lender in connection with the sale and
assignment of any Eurocurrency Loan hereunder on the terms
and in the manner as set forth in Section 3.4."
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1.7. A NEW EXHIBIT J IS HEREBY ADDED TO THE CREDIT
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AGREEMENT AND SUCH EXHIBIT SHALL READ AS SET FORTH ON ANNEX I HERETO.
2. CONSENT. Effective as of the date hereof and subject to the
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satisfaction of the conditions precedent set forth in Section 3 below, the
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Lenders party hereto hereby (i) consent to the UK Acquisition and the
assumption by the Borrower of the UK Target's indebtedness and liabilities
in the amounts outstanding on the effective date (the "UK Acquisition
Effective Date") of the UK Acquisition, (ii) consent to the possible
transfer, from the Borrower to one or more Wholly-Owned Subsidiaries, of the
UK Target and related assets and entities acquired pursuant to, and within
six (6) months of consummating, the UK Acquisition (the "UK Acquisition
Transfer") so long as the Borrower and its Subsidiaries comply on a timely
basis with Sections 6.15 and 6.24 of the Credit Agreement and (iii) waive
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the Borrower's non-compliance with any provisions of Sections 6.15(xi) and
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6.19 of the Credit Agreement which would otherwise limit or restrict the UK
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Acquisition or the UK Acquisition Transfer. This specific consent and waiver
is limited to the express circumstances described herein and shall not be
construed to constitute (i) a consent to, or waiver of, any other event,
circumstance or condition or of any other right or remedy available to the
Agent or any Lender pursuant to the Credit Agreement or hereunder or (ii) a
consent to any departure by the Borrower or any Subsidiary from any other
term or requirement under the Credit Agreement or hereunder.
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
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effective and be deemed effective if, and only if, the Agent shall have
received, on or before the UK Acquisition Commitment Effective Date, each of
the following:
(a) duly executed signature pages to this Amendment from
the Borrower and the Required Lenders; provided that the
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effectiveness of the amendment to Section 2.7 of the Credit
Agreement as set forth in Section 1.4 hereof shall require the
consent of each of the Lenders;
(b) an amendment fee, for the benefit of each Lender
executing and delivering its signature page hereto by such time as
is required by the Administrative Agent, in an amount equal to
0.05% on the sum of such Lender's Revolving Loan Commitment and
outstanding Term Loans as of the date hereof;
(c) a reaffirmation from each of the Borrower's
Subsidiaries which are parties to the Subsidiary Guaranty, such
reaffirmation being attached hereto and made a part hereof; and
(d) such other documents, instruments and agreements as
the Agent may reasonably request.
4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
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hereby represents and warrant as follows:
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(a) This Amendment, and the Credit Agreement as previously
executed and as amended hereby, constitute legal, valid and binding
obligations of the Borrower and are enforceable against the
Borrower in accordance with their terms.
(b) Upon the effectiveness of this Amendment, the Borrower
hereby reaffirms all covenants, representations and warranties made
in the Credit Agreement and other Credit Documents, to the extent
the same are not amended hereby, and agrees that all such
covenants, representations and warranties shall be deemed to have
been remade as of the effective date of this Amendment, provided
that such representations and warranties shall be deemed to have
been updated to reflect the information which has been provided by
the Borrower to the Agent prior to the date of this Amendment
pursuant to Section 6.1 of the Credit Agreement.
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(c) No Default or Unmatured Default has occurred and is
continuing under the Credit Agreement.
5. REFERENCE TO THE EFFECT ON THE CREDIT AGREEMENT.
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(a) Upon the effectiveness of this Amendment, on and after
the date hereof, each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof," "herein" or words of like import
shall mean and be a reference to the Credit Agreement, as amended
previously and as amended hereby.
(b) Except as previously amended and as specifically
amended and waived above, the Credit Agreement and all other
documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect, and are
hereby ratified and confirmed.
(c) Except to the limited extent set forth in Section 2
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above, the execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the
Agent or any of the Lenders, nor constitute a waiver of any
provision of the Credit Agreement or any other documents,
instruments and agreements executed and/or delivered in connection
therewith.
6. GOVERNING LAW. This Amendment shall be governed by and construed
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in accordance with the internal laws (as opposed to the conflict of law
provisions) of the State of Illinois.
7. HEADINGS. Section headings in this Amendment are included herein
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for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. COUNTERPARTS. This Amendment may be executed by one or more of
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the parties to the Amendment on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and
the same instrument. A facsimile signature page hereto sent to the Agent or
the Agent's counsel shall be effective as a counterpart signature, and each
party so executing such a facsimile counterpart shall be deemed to agree to
deliver originals to the Agent thereof.
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[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment and Consent No. 1 has
been duly executed as of the day and year first above written.
XXXXXXX DENVER, INC.
as Borrower
By:_______________________________________
Name:
Title:
BANK ONE, NA, individually as a Lender, as LC
Issuer, Swing Line Lender and as Agent
By:_______________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
individually as a Lender and as the
Syndication Agent
By:_______________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
(formerly known as First Union National
Bank), as a Lender
By:_______________________________________
Name:
Title:
Signature Page to Amendment and Consent No. 1
November 2003
Xxxxxxx Denver, Inc.
NORDEA BANK FINLAND PLC,
as a Lender
By:_______________________________________
Name:
Title:
By:_______________________________________
Name:
Title:
THE BANK OF NEW YORK,
as a Lender
By:_______________________________________
Name:
Title:
NATIONAL CITY BANK OF MICHIGAN/ILLINOIS,
as a Lender
By:_______________________________________
Name:
Title:
THE BANK OF NOVIA SCOTIA, as a Lender
By:_______________________________________
Name:
Title:
MERCANTILE TRUST AND SAVINGS BANK,
as a Lender
By:_______________________________________
Name:
Title:
Signature Page to Amendment and Consent No. 1
November 2003
Xxxxxxx Denver, Inc.
REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a
copy of Amendment and Consent No. 1 to the Amended and Restated Credit
Agreement dated as of March 6, 2002, by and among Xxxxxxx Denver, Inc., the
Lenders and the Agent (the "Credit Agreement"), which Amendment and Consent
No. 1 is dated as of November 6, 2003 (the "Amendment"). Capitalized terms
used in this Reaffirmation and not defined herein shall have the meanings
given to them in the Credit Agreement. Without in any way establishing a
course of dealing by the Agent or any Lender, the undersigned reaffirms the
terms and conditions of the Amended and Restated Subsidiary Guaranty dated
as of March 6, 2002 executed by it and acknowledges and agrees that such
Amended and Restated Subsidiary Guaranty and each and every other Credit
Document executed by the undersigned in connection with the Credit Agreement
remain in full force and effect and are hereby ratified, reaffirmed and
confirmed. All references to the Credit Agreement contained in the
above-referenced documents shall be references to the Credit Agreement as so
amended by the Amendment and as the same may from time to time hereafter be
amended, modified or restated.
XXXXXXX DENVER INTERNATIONAL, INC.
By:
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Its:
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XXXXXXX DENVER HOLDINGS INC.
By:
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Its:
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XXXXXX CORPORATION
By:
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Its:
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TCM INVESTMENTS, INC.
By:
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Its:
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Signature Page to Amendment and Consent No. 1
November 2003
Xxxxxxx Denver, Inc.
XXXXX-XXXXXX EQUIPMENT CO., INC.
By:
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Its:
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XXXXXXX DENVER WATER JETTING SYSTEMS, INC.
By:
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Its:
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AIR RELIEF, INC.
By:
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Its:
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XXXXXXX AIR FILTRATION LICENSO INC.
By:
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Its:
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BELLISS & XXXXXX (USA) INC.
By:
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Its:
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Signature Page to Amendment and Consent No. 1
November 2003
Xxxxxxx Denver, Inc.
ANNEX I TO AMENDMENT AND CONSENT NO. 1
EXHIBIT J
TO
CREDIT AGREEMENT
FORM OF COMMITMENT AND ACCEPTANCE
DATED [_______]
Reference is made to the Amended and Restated Credit Agreement
dated as of March 6, 2002 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Xxxxxxx Denver,
Inc. (the "Borrower"), the Non-U.S. Subsidiary Borrowers from time to time
party thereto, the financial institutions party thereto (the "Lenders"), and
Bank One, NA, as contractual representative for the Lenders (the "Agent").
Terms defined in the Credit Agreement are used herein with the same meaning.
Pursuant to Section 2.27 of the Credit Agreement, the Borrower has
requested an increase in the Aggregate Revolving Loan Commitment from
$______________ to $_____________. Such increase in the Aggregate Revolving
Loan Commitment is to become effective on the date (the "Effective Date")
which is the later of (i) _________, ____ and (ii) the date on which the
conditions precedent set forth in Section 2.27 in respect of such increase
have been satisfied. In connection with such requested increase in the
Aggregate Revolving Loan Commitment, the Borrower, the Agent and
_________________ (the "Accepting Bank") hereby agree as follows:
1. Effective as of the Effective Date, [the Accepting Bank shall
become a party to the Credit Agreement as a Lender and shall have all of the
rights and obligations of a Lender thereunder and shall thereupon have a
Revolving Loan Commitment under and for purposes of the Credit Agreement in
an amount equal to the] [the Revolving Loan Commitment of the Accepting Bank
under the Credit Agreement shall be increased from $_________ to the] amount
set forth opposite the Accepting Bank's name on the signature page hereof.
[2. The Accepting Bank hereby (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the financial
statements and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Commitment and Acceptance Agreement; (ii) agrees that it will, independently
and without reliance upon the Agent or any other Lender 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) appoints and authorizes the Agent to take such
action as contractual representative on its behalf and to exercise such
powers under the Credit Agreement and the other Credit Documents as are
delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; and (iv) 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 Lender.]
3. The Borrower hereby represents and warrants that as of the date
hereof and as of the Effective Date, (a) all representations and warranties
shall be true and correct in all material respects as though made on such
date and (b) no event shall have occurred and then be continuing which
constitutes a Default or an Unmatured Default.
4. THIS COMMITMENT AND ACCEPTANCE AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (INCLUDING SECTION 735
ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.
5. This Commitment and Acceptance Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Commitment
and Acceptance Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above written.
XXXXXXX DENVER, INC.
By:
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Its:
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BANK ONE, NA
(Main Office, Chicago),
as Agent
By:
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Its:
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REVOLVING LOAN
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COMMITMENT ACCEPTING BANK
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$ [BANK]
By:
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Its:
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REAFFIRMATIONS OF GUARANTORS
Each of the undersigned hereby acknowledges receipt of the
foregoing Commitment and Acceptance. Capitalized terms used in this
Reaffirmation and not defined herein shall have the meanings given to them
in the Credit Agreement referred to in the foregoing Commitment and
Acceptance. Without in any way establishing a course of dealing by the Agent
or any Lender, the undersigned reaffirms the terms and conditions of the
Amended and Restated Subsidiary Guaranty dated as of March 6, 2002 executed
by it and acknowledges and agrees that such Amended and Restated Subsidiary
Guaranty and each and every other Credit Document executed by the
undersigned in connection with the Credit Agreement remain in full force and
effect and are hereby ratified, reaffirmed and confirmed. All references to
the Credit Agreement contained in the above-referenced documents shall be
references to the Credit Agreement as so amended by the Commitment and
Acceptance and as the same may from time to time hereafter be amended,
modified or restated. The failure of any Subsidiary party to such Amended
and Restated Subsidiary Guaranty to sign this Reaffirmation shall not
release, discharge or otherwise affect the obligations of any of the other
such Subsidiaries hereunder or under such Amended and Restated Subsidiary
Guaranty.
[GUARANTORS]
By: ____________________________
Its: ______________________
