FIRST AMENDMENT
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FIRST AMENDMENT (this "Amendment"), dated as of June 29, 1999,
among OMNIQUIP INTERNATIONAL, INC., a Delaware corporation (the "Borrower"), the
lenders party to the Credit Agreement referred to below on the date hereof (the
"Banks"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as Syndication Agent and
Co-Arranger (the "Syndication Agent") and FIRST UNION NATIONAL BANK, as
Administrative Agent and Co-Arranger (the "Administrative Agent"). All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided such terms in the Credit Agreement referred to
below.
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, the Borrower, the Banks, Syndication Agent and the
Administrative Agent are parties to a Credit Agreement, dated as of November 17,
1997, and amended and restated as of February 26, 1999 ("Credit Agreement");
WHEREAS, the Borrower and certain lending institutions intend
to enter into a credit agreement pursuant to which the Borrower may borrow up to
$30,000,000 (the "New Money Credit Agreement"); and
WHEREAS, the parties hereto wish to modify the Credit
Agreement as herein provided to permit the New Money Credit Agreement and to
effect the other changes set forth herein;
NOW, THEREFORE, it is agreed:
1. Notwithstanding anything to the contrary contained in
Section 4.01 of the Credit Agreement, any voluntary repayments of outstanding
Loans to be made by the Borrower pursuant to such Section shall instead be
applied (i) first, to repay all outstanding loans under the New Money Credit
Agreement (with a corresponding reduction to the commitments thereunder), (ii)
second, to the extent all outstanding loans under the New Money Credit Agreement
have been repaid, to reduce any remaining commitments thereunder and (iii)
third, to the extent that all loans under the New Money Credit Agreement have
been repaid and all commitments thereunder have been terminated (or reduced to
zero), to repay outstanding Loans as otherwise provided under such Section of
the Credit Agreement.
2. Notwithstanding anything to the contrary contained in
Sections 3.03(d), 4.02(c), (d), (e) and (f) of the Credit Agreement, any
mandatory repayment of outstanding Term Loans (or mandatory reductions to the
Total Revolving Loan Commitment) otherwise required pursuant to such Sections
shall instead be applied (i) first, to repay all outstanding loans under the New
Money Credit Agreement (with a corresponding reduction to the commitments
thereunder), (ii) second, to the extent all outstanding loans under the New
Money Credit Agreement have been repaid, to reduce any remaining commitments
thereunder and (iii) third, to the extent that all loans under the New Money
Credit Agreement have been repaid and all commitments thereunder have
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been terminated (or reduced to zero), to repay outstanding Term Loans and/or
reduce the Total Revolving Loan Commitment as otherwise provided in such
Sections of the Credit Agreement.
3. Section 4.02(c) of the Credit Agreement is hereby amended
by (i) inserting the text "(i)" immediately prior to the text "Indebtedness"
appearing within the first parenthetical contained in such clause and (ii)
inserting the following text after the text "Restatement Effective Date"
appearing at the end of the first parenthetical contained in such clause:
"and (ii) Indebtedness of Snorkel Elevating Work Platforms
Limited and/or Snorkel Elevating Work Platforms Pty Limited under the
Snorkel Revolver".
4. Section 7.11 of the Credit Agreement is hereby amended by
(i) deleting the text "constitute first priority perfected security interests"
contained in the first sentence of clause (b) thereof and inserting the text
"constitute perfected security interests" in lieu thereof and (ii) inserting the
text "(other than any holder of Indebtedness under the New Money Credit
Agreement)" at the end of the first sentence of clause (b) thereof.
5. Section 7.11 of the Credit Agreement is hereby further
amended by inserting the text "(other than any holder of Indebtedness under the
New Money Credit Agreement)" immediately before the second parenthetical
contained in the first sentence of clause (c) thereof.
6. Section 8.01 of the Credit Agreement is hereby amended by
inserting the following new clause (i) immediately after clause (h) hereof:
"(i) Contemporaneously with the delivery thereof, copies of
all financial or other information with respect to the Borrower or any
of its Subsidiaries not otherwise required to be delivered pursuant to
this Section 8.01 which the Borrower or any of its Subsidiaries has
delivered to the lenders under the New Money Credit Agreement pursuant
to any financial reporting or other information covenants contained in
the New Money Credit Agreement; provided, however, that the deliveries
required under this clause (i) shall be furnished to the Administrative
Agent (and the Administrative Agent shall promptly forward such
deliveries to each Bank).",
and redesignating existing clause (i) thereof as clause (j).
7. Section 8.12 of the Credit Agreement is hereby amended by
inserting the text "(other than any holder of Indebtedness under the New Money
Credit Agreement)" immediately following the text "superior to and prior to the
rights of all third persons" appearing in the second sentence of clause (a)
thereof.
8. Notwithstanding anything to the contrary contained in the
Credit Agreement or any other Credit Document, the Banks hereby agree that each
of the Security Documents may be amended, or amended and restated, in form and
substance reasonably satisfactory to the Administrative Agent and the
Syndication Agent to provide, as security for the Borrower's and the other
Credit Parties' obligations under or in respect of the New Money Credit
Agreement, a first priority lien on the Collateral, which lien shall be superior
to the existing lien in
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favor of the Collateral Agent on behalf of the existing Secured Creditors
pursuant to the Security Documents (as in effect on the date hereof) (it being
understood and agreed that except to create a first priority lien in favor of
the lenders under the New Money Credit Agreement, the Security Documents will be
unchanged and after giving effect to such amendment or amendment and
restatement, the Collateral Agent will hold all Collateral for the benefit of
the lenders under the New Money Credit Agreement (on a first priority basis) and
the existing Secured Creditors (on a second priority basis). In addition, the
Banks hereby agree that the Collateral Agent may enter into any such other
documentation necessary or appropriate to effect the foregoing. Notwithstanding
anything to the contrary contained in this Amendment, the Credit Agreement or
any other Credit Document, the Banks hereby agree that (i) no additional
extensions of credit to the Borrower secured by any liens on the Collateral
superior to the existing liens in favor of the Collateral Agent on behalf of the
existing Secured Creditors pursuant to the Security Documents shall be permitted
without the consent of each Bank (other than a Defaulting Bank) and (ii) the
maturity date of the New Money Credit Agreement shall not be extended without
the consent of those Non-Defaulting Lenders constituting the Required Banks
under, and as defined in the Credit Agreement, if the percentage "50%" contained
therein was changed to "66-2/3%".
9. Section 9.01 of the Credit Agreement is hereby amended by
(i) deleting the text "and" appearing at the end of clause (xiii) thereof, (ii)
deleting the period appearing at the end of clause (xiv) thereof and inserting
the text "; and" in lieu thereof and (iii) inserting the following new clause
(xv) immediately following existing clause (xiv) thereof:
"(xv) Liens placed upon inventory and/or receivables of
Snorkel Elevating Work Platforms Limited and Snorkel Elevating Work
Platforms Pty Limited securing Indebtedness incurred by either such
Person pursuant to the Snorkel Revolver, provided such Lien does not
encumber any other asset of the Borrower or such Subsidiary."
10. Section 9.01 of the Credit Agreement is hereby further
amended by deleting the text "clauses (vi), (vii) and (xiii)" appearing in the
last paragraph thereof and inserting the text "clauses (vi), (vii), (xiii) and
(xv)" in lieu thereof.
11. Section 9.03 of the Credit Agreement is hereby amended by
inserting the following text at the end of clause (iii) thereof:
"provided, that the aggregate amount of Dividends paid by the
Borrower pursuant to this clause (iii) shall not exceed $250,000 in any
fiscal quarter of the Borrower, provided further that the immediately
preceding proviso shall cease to be of any force or effect after the
repayment of all loans outstanding pursuant to, and the termination of
all commitments under, the New Money Credit Agreement."
12. Section 9.04 of the Credit Agreement is hereby amended by
(i) deleting the text "and" appearing at the end of clause (x) thereof, (ii)
inserting the following new clauses (xi), (xii) and (xiii) immediately following
existing clause (x) thereof:
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"(xi) Indebtedness of the Borrower pursuant to a senior
secured credit facility in an aggregate principal amount not to exceed
$30,000,000 and having a maturity date no later than November 15, 1999;
(xii) Indebtedness of each Subsidiary Guarantor pursuant to a
guaranty by such Subsidiary Guarantor of Indebtedness permitted under
Section 9.04(xi);
(xiii) Indebtedness of Snorkel Elevating Work Platforms
Limited and Snorkel Elevating Work Platforms Pty Limited pursuant to a
revolving credit facility, evidenced by documentation in form and
substance satisfactory to the Co-Arrangers, in an aggregate principal
amount not to exceed $10,000,000 at any time, and";
and redesignating existing clause (xi) thereof as clause (xiv).
13. Section 9.05 of the Credit Agreement is hereby amended by
inserting the following text at the end of clause (ii) thereof:
"provided that during any time when Revolving Loans or
Swingline Loans are outstanding, the aggregate amount of cash and Cash
Equivalents permitted to be held by the Borrower and its Subsidiaries
shall not exceed $5,000,000 for any period of five consecutive Business
Days, provided further that the immediately preceding proviso shall
cease to be of any force or effect after the repayment of all loans
outstanding pursuant to, and the termination of all commitments under,
the New Money Credit Agreement".
14. Section 9.07 of the Credit Agreement is hereby amended by
inserting the following new clauses (f) and (g) immediately following existing
clause (e) thereof:
"(f) Notwithstanding the foregoing, for the period beginning
June 1, 1999 and ending September 30, 1999, the Borrower and its
Subsidiaries shall be permitted to make Capital Expenditures in an
aggregate amount not to exceed $5,000,000 for such period.
(g) Notwithstanding the foregoing, for the Borrower's fiscal
year 2000, the Borrower and its Subsidiaries shall be permitted to make
Capital Expenditures in an aggregate amount not to exceed $15,000,000
for such fiscal year, provided that any amounts not utilized in the 1999
fiscal year may not be carried forward and applied to Capital
Expenditures in the 2000 fiscal year."
15. The table appearing in Section 9.08 of the Credit
Agreement is hereby amended by deleting such table in its entirety and inserting
the following new table in lieu thereof:
Fiscal Quarter Ratio
June 30, 1999 1.75:1.00
September 30, 1999 1.75:1.00
December 31, 1999 1.75:1.00
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March 31, 2000 2.25:1.00
June 30, 2000 3.00:1.00
September 30, 2000 3.50:1.00
Thereafter 4.00:1.00
16. The table appearing in Section 9.09 of the Credit
Agreement is hereby amended by deleting such table in its entirety and inserting
the following new table in lieu thereof:
Fiscal Quarter Ratio
June 30, 1999 3.00:1.00
September 30, 1999 3.00:1.00
December 31, 1999 3.00:1.00
March 31, 2000 3.00:1.00
June 30, 2000 4.00:1.00
September 30, 2000 4.00:1.00
Thereafter 5.00:1.00
17. The table appearing in Section 9.10 of the Credit
Agreement is hereby amended by deleting such table in its entirety and inserting
the following new table in lieu thereof:
Fiscal Quarter Ratio
June 30, 1999 4.25:1.00
September 30, 1999 4.25:1.00
December 31, 1999 4.00:1.00
March 31, 2000 3.75:1.00
June 30, 2000 3.25:1.00
September 30, 2000 2.75:1.00
December 31, 2000 2.50:1.00
March 31, 2001 2.50:1.00
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June 30, 2001 2.25:1.00
September 30, 2001 2.25:1.00
December 31, 2001 2.00:1.00
March 31, 2002 2.00:1.00
June 30, 2002 1.75:1.00
Thereafter 1.75:1.00
18. Section 9.11 of the Credit Agreement is hereby amended by
(i) deleting the text "Subordinated" appearing in the introductory caption
thereof and inserting the text "Certain" in lieu thereof and (ii) inserting the
text ", any Snorkel Revolver Documents" immediately following the text "IDB
Financing Documents" appearing in clause (iii) thereof.
19. The Banks hereby waive any Default or Event of Default
which may have arisen as a result of the Borrower failing to comply with Section
9.10 of the Credit Agreement for the period from April 1, 1999 to the First
Amendment Effective Date.
20. The definition of "Applicable Base Rate Margin" contained
in Section 11.01 of the Credit Agreement is hereby amended by deleting such
definition in its entirety and replacing such definition with the following new
definition of "Applicable Base Rate Margin":
"Applicable Base Rate Margin" from and after the first day of
any Applicable Pricing Period (the "Start Date") to and including the
last day of such Applicable Pricing Period (the "End Date"), shall mean
the respective percentage per annum set forth in clause (A)-(F) below
if, but only if, as of the last day of the most recent fiscal quarter
of the Borrower ended immediately prior to such Start Date (the "Test
Date") the condition in clause (A)-(F) below is met:
(A) 2.000% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be greater than 3.50:1.0; or
(B) 1.750% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 3.50:1.0 but greater than 3.00:1.0; or
(C) 1.500% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 3.00:1.0 but greater than 2.50:1.0; or
(D) 1.250% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.50:1.0 but greater than 2.00:1.0; or
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(E) 1.000% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.00:1.0 but greater than 1.50:1.0; or
(F) 0.750% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 1.50:1.0.
Notwithstanding anything to the contrary contained above in
this definition, (a) for the period from the First Amendment Effective
Date to the date of delivery of the financial statements pursuant to
Section 8.01(b) in respect of the Borrower's fiscal year ending on
September 30, 1999, the Applicable Base Rate Margin shall be 2.000%,
(b) the Applicable Base Rate Margin shall be 2.000% at all times when
financial statements have not been delivered when required pursuant to
Section 8.01(a) or (b), as the case may be, and (c) on and after the
date on which the Borrower has issued New Subordinated Notes in an
aggregate principal amount of at least $100,000,000, each of the
percentage margins set forth above shall be reduced by 0.125%."
21. The definition of "Applicable Commitment Commission
Percentage" contained in Section 11.01 of the Credit Agreement shall be amended
by deleting such definition in its entirety and replacing such definition with
the following new definition of "Applicable Commitment Commission Percentage":
"Applicable Commitment Commission Percentage" from and after
any Start Date to and including the corresponding End Date, shall mean
the respective percentage per annum set forth in clause (A) or (B)
below if, but only if, as of the Test Date for such Start Date the
condition set forth in clause (A) or (B) below is met:
(A) 0.500% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be greater than 1.50:1.00; or
(B) 0.375% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 1.50:1.00.
Notwithstanding anything to the contrary contained above in
this definition, (a) for the period from the First Amendment Effective
Date to the date of delivery of the financial statements pursuant to
Section 8.01(b) in respect of the Borrower's fiscal year ending on
September 30, 1999, the Applicable Commitment Commission Percentage
shall be 0.500% and (b) the Applicable Commitment Commission Percentage
shall be 0.500% at all times when financial statements have not been
delivered when required pursuant to Section 8.01(a) or (b), as the case
may be.
22. The definition of "Applicable Eurodollar Margin" in
Section 11.01 of the Credit Agreement shall be amended by deleting such
definition in its entirety and replacing such definition with the following new
definition of "Applicable Eurodollar Margin":
"Applicable Eurodollar Margin" from and after any Start Date
to and including the corresponding End Date, shall mean the respective
percentage per annum set forth in
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clause (A)-(F) below if, but only if, as of the Test Date for such
Start Date the condition in clause (A)-(F) below is met:
(A) 3.000% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be greater than 3.50:1.0; or
(B) 2.750% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 3.50:1.0 but greater than 3.00:1.0; or
(C) 2.500% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 3.00:1.0 but greater than 2.50:1.0; or
(D) 2.250% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.50:1.0 but greater than 2.00:1.0; or
(E) 2.000% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.00:1.0 but greater than 1.50:1.0; or
(F) 1.750% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 1.50:1.0.
Notwithstanding anything to the contrary contained above in
this definition, (a) for the period from the First Amendment Effective
Date to the date of delivery of the financial statements pursuant to
Section 8.01(b) in respect of the Borrower's fiscal year ending on
September 30, 1999, the Applicable Base Rate Margin shall be 3.000%,
(b) the Applicable Eurodollar Margin shall be 3.000% at all times when
financial statements have not been delivered when required pursuant to
Section 8.01(a) or (b), as the case may be, and (c) on and after the
date on which the Borrower has issued New Subordinated Notes in an
aggregate principal amount of at least $100,000,000, each of the
percentage margins set forth above shall be reduced by 0.125%.
23. Section 11.01 of the Credit Agreement is hereby further amended by
inserting the following definitions therein in the proper alphabetical order:
"First Amendment Effective Date" shall mean June 29, 1999.
"New Money Credit Agreement" shall mean that certain senior
secured credit facility permitted pursuant to Section 9.04(xi).
"Snorkel Revolver" shall mean that certain revolving credit
facility permitted pursuant to Section 9.04(xiii).
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"Snorkel Revolver Documents" shall mean the credit agreement
evidencing the Snorkel Revolver and all other agreements and documents
entered into in connection with the Snorkel Revolver.
24. 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.
25. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower, the Administrative Agent and the
Syndication Agent.
26. 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.
27. This Amendment shall become effective on the date (the "First
Amendment Effective Date") when (i) the Borrower and the Required Banks shall
have signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered (including by way of facsimile transmission) the same
to the Administrative Agent at the Notice Office, (ii) the Administrative Agent
shall have received from Dickstein, Shapiro, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to
the Credit parties, an opinion addressed to the Administrative Agent, the
Syndication Agent and each of the Banks and dated the First Amendment Effective
Date, in form and substance reasonably satisfactory to the Administrative Agent
and the Syndication Agent, and covering matters incident to the transactions
contemplated hereby as the Administrative Agent and the Syndication Agent may
reasonably request and (iii) the Borrower shall have paid to each Bank that has
executed a counterpart of this Amendment on or prior to 5:00 p.m. (Eastern time)
on June 29, 1999, an amount equal to the product of (x) 0.25% and (y) the sum of
such Bank's (i) outstanding Term Loans and (ii) Revolving Loan Commitment in
each case as in effect on the First Amendment Effective Date.
28. 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.
* * *
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/ ▇. ▇▇▇▇▇ Stiff
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Title: President &
Chief Executive Officer
FIRST UNION NATIONAL BANK,
Individually and as Administrative Agent
and Co-Arranger
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR
FUNDING, INC., Individually and as
Syndication Agent and Co-Arranger
By /s/ T. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
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Title: Vice President
BANK OF SCOTLAND
By
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Title:
CREDIT AGRICOLE INDOSUEZ
By
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Title:
FIRST BANK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
FIRSTAR BANK MILWAUKEE, N.A.
By
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Title:
FLEET CAPITAL CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior Vice President
THE FUJI BANK, LIMITED
By /s/ Takeyuki Kuroki
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Title: Vice President &
Senior Team Leader
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By /s/▇▇▇▇▇▇ ▇. Dluby
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Title: Vice President
M&I ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ BANK
By
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Title:
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By
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Title:
NATIONAL CITY BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
WACHOVIA BANK, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
RZB FINANCE LLC
By /s/ Dieter Beintrexler
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Title: President
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Assistant Vice President
BANK LEUMI USA, CHICAGO BRANCH
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Senior Vice President &
Branch Manager
