THIRD AMENDMENT, CONSENT AND WAIVER TO CREDIT AGREEMENT
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THIRD AMENDMENT, CONSENT AND WAIVER TO CREDIT AGREEMENT (this "Third
Amendment"), dated as of January 26, 2001, among SCOTSMAN HOLDINGS, INC., a
Delaware corporation ("Holdings"), XXXXXXXX SCOTSMAN, INC., a Maryland
corporation (the "Borrower"), the Lenders from time to time party to the Credit
Agreement referred to below, BANKERS TRUST COMPANY, as Issuing Bank, BT
COMMERCIAL CORPORATION, acting as Administrative Agent and Co-Syndication Agent,
BANK OF AMERICA BUSINESS CREDIT (f/k/a NationsBank, N.A.), acting as Co-
Syndication Agent, and XXXXXXX SACHS CREDIT PARTNERS L.P., acting as
Documentation Agent. All capitalized terms used herein and not otherwise
defined shall have the respective meanings provided such terms in the Credit
Agreement.
W I T N E S S E T H :
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WHEREAS, Holdings, the Borrower, the Lenders, the Issuing Bank, the
Administrative Agent, the Co-Syndication Agents and the Documentation Agent are
parties to a Credit Agreement, dated as of May 22, 1997 and amended and restated
as of September 1, 1998, and as further amended, modified and supplemented by a
Consent to Credit Agreement dated as of December 4, 1998 (the "First Consent"),
a First Amendment to Credit Agreement dated as of July 7, 1999 (the "First
Amendment") and a Second Amendment to Credit Agreement dated as of September 15,
1999 (the "Second Amendment") (with the Credit Agreement, as amended and
restated as described above, and as further amended, modified and supplemented
by the First Consent, the First Amendment and the Second Amendment being herein
called the "Existing Credit Agreement" and, as same may be further amended,
modified and supplemented from time to time, including pursuant to this Third
Amendment, being herein called the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Existing Credit
Agreement as herein provided;
NOW, THEREFORE, it is agreed:
I. Amendments and Modifications to Existing Credit Agreement Permitting
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Additional Revolving Credit Commitments Thereunder.
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1. The Issuing Bank and the Lenders agree that, at any time and from
time to time from and after the Third Amendment Effective Date (as defined
below) and on or prior to March 26, 2001, the Borrower shall have the right
(subject to its obtaining the respective Additional Revolving Credit Commitments
described below) to increase the Revolving Credit Commitments (each such
increased Revolving Credit Commitment an "Additional Revolving Credit
Commitment" and collectively, the "Additional Revolving Credit Commitments")
under the Credit Agreement by an aggregate amount not to exceed $60,000,000,
which Additional Revolving Credit Commitments shall be in addition to the
Revolving Credit Commitments as in effect immediately prior to the respective
Additional Revolving Credit Commitment Effective Date (as defined below), by
notice (each an "Additional Revolving Credit Commitment Notice")
to the Administrative Agent before the date of effectiveness of the respective
Additional Revolving Credit Commitment (each such date, an "Additional Revolving
Credit Commitment Effective Date"), and, subject to the applicable terms and
conditions set forth in the Credit Agreement, the new or existing Lender or
Lenders furnishing the respective Additional Revolving Credit Commitments shall
make Revolving Loans pursuant to such Additional Revolving Credit Commitments
from time to time on and after the respective Additional Revolving Credit
Commitment Effective Date and to and excluding the Revolving Credit Expiration
Date, provided that:
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(i) on or prior to the respective Additional Revolving Credit
Commitment Effective Date, each of the Borrower, the Administrative Agent,
the Issuing Bank and each Lender (which may be an existing Lender or a new
Lender) furnishing an Additional Revolving Credit Commitment on such date
(each such Lender, an "Additional Revolving Credit Lender") shall have
executed and (except for the Administrative Agent) delivered to the
Administrative Agent an Additional Revolving Credit Commitment Agreement in
the form of Annex I hereto (each, an "Additional Revolving Credit
Commitment Agreement"), appropriately completed to the reasonable
satisfaction of the Administrative Agent (and with such modifications as
may be approved by the Administrative Agent) (with the effectiveness of the
Additional Revolving Credit Commitment of such Additional Revolving Credit
Lender to occur only upon (A) the delivery of such Additional Revolving
Credit Commitment Agreement to the Administrative Agent, (B) the
recordation by the Payments Administrator of the Revolving Credit
Commitment of such Additional Revolving Credit Lender in the Register (the
Payments Administrator hereby agreeing to effect such recordation no later
than 5 Business Days after its receipt of a written notification of the
Additional Revolving Credit Commitment of such Additional Revolving Credit
Lender) and (C) the satisfaction of the other conditions set forth in this
Section 1 of Part I to the reasonable satisfaction of the Administrative
Agent);
(ii) on or prior to each Additional Revolving Credit Commitment
Effective Date, the Borrower shall have, in coordination with the
Administrative Agent, either (x) repaid in full all Revolving Loans
outstanding on the respective Additional Revolving Credit Commitment
Effective Date (although new Revolving Loans may be incurred under the
Credit Agreement on the respective Additional Revolving Credit Commitment
Effective Date in accordance with the provisions of the Credit Agreement,
so that the Lenders participate in each Borrowing of outstanding Revolving
Loans pro rata on the basis of their respective Revolving Credit
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Commitments (as in effect on the respective Additional Revolving Credit
Commitment Effective Date and after giving effect thereto) as provided in
the Credit Agreement), it being understood and agreed that the Borrower
shall pay all breakage or similar costs of the type described in Section
4.5(b) of the Credit Agreement incurred by the Lenders in connection with
any repayment or reborrowing of Revolving Loan or (y) repaid outstanding
Revolving Loans (together with any amounts owing pursuant to Section 4.5(b)
of the Credit Agreement with respect thereto) outstanding under the Credit
Agreement and/or incurred additional Revolving Loans pursuant to the
respective Additional Revolving Credit Commitments so that, after giving
effect to such repayments and borrowings, on each respective Additional
Revolving Credit Commitment Effective Date the Lenders shall participate in
each Borrowing of
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outstanding Revolving Loans pro rata on the basis of their respective
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Revolving Credit Commitments (as in effect on each respective Additional
Revolving Credit Commitment Effective Date and after giving effect
thereto), it being understood and agreed that, in the case of this clause
(y), the Interest Periods applicable to any then outstanding Borrowings
which are not repaid in full shall continue in effect until the end thereof
and that the Revolving Loans made pursuant to the respective Additional
Revolving Credit Commitments shall be added to, and form part of, the
various outstanding Borrowings of Revolving Loans which remain in effect
and, until the end of each such respective Interest Period, shall bear
interest at a rate equal to the then applicable Adjusted Eurodollar Rate
for the respective Borrowing to which such Revolving Loans are added plus
the relevant Applicable Margin and, thereafter, shall bear interest as
otherwise provided in Section 4.1 or 4.2 (as the case may be) of the Credit
Agreement;
(iii) on or prior to the Additional Revolving Credit Commitment
Effective Date in respect of the initial provision of Additional Revolving
Credit Commitments pursuant to this Section 1 (such date, the "Initial
Additional Revolving Credit Commitment Effective Date"), the Borrower shall
have delivered or caused to be delivered to the Administrative Agent an
opinion, in form and substance reasonably satisfactory to the
Administrative Agent, from counsel to the Borrower reasonably satisfactory
to the Administrative Agent and dated such date, covering such matters
similar to those set forth in the opinions of counsel delivered to the
Administrative Agent on the Restatement Effective Date pursuant to Section
5.1(c) of the Credit Agreement and such other matters as the Administrative
Agent may reasonably request;
(iv) on or prior to the Initial Additional Revolving Credit
Commitment Effective Date, the Borrower shall have delivered to the
Administrative Agent a certificate executed by each Credit Party party
hereto certifying that all necessary authorizations and resolutions have
been obtained to permit the Borrower to obtain the maximum amount (i.e.,
$60,000,000) of Additional Revolving Credit Commitments permitted under
this Third Amendment and to incur up to $60,000,000 of Revolving Loans
pursuant to such Additional Revolving Credit Commitments, with copies of
such authorizations and/or resolutions attached to such certificate;
(v) on, or within two Business Days after, each Additional
Revolving Credit Commitment Effective Date, the Borrower shall (and hereby
covenants to) pay to the Administrative Agent for the account of each
Additional Revolving Credit Lender that provides an Additional Revolving
Credit Commitment on such Additional Revolving Credit Commitment Effective
Date a non-refundable cash fee in an amount equal to 1/2 of 1% of the
Additional Revolving Credit Commitment of each such Additional Revolving
Credit Lender on such Additional Revolving Credit Commitment Effective
Date;
(vi) the consent of the Administrative Agent (which consent shall
not be unreasonably withheld or delayed) shall be required with respect to
each Lender which furnishes Additional Revolving Credit Commitments, and
the assumption of such Additional Revolving Credit Commitments shall
otherwise be made in compliance with the relevant requirements set forth in
Section 11.6(b)(A) of the Credit Agreement with respect to assignments
(including, without limitation, (x) the requirement that the
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respective Person assuming any Additional Revolving Credit Commitments be
an Eligible Transferee and (y) compliance with the minimum amounts provided
in Section 11.6(b)(A) of the Credit Agreement (or such lesser minimum
amount as the Administrative Agent may agree to), but excluding the
requirement that the Administrative Agent receive the fees provided in said
Section 11.6(b)(A)), provided that the consent of the Administrative Agent
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shall not be so required if the respective Lender which furnishes
Additional Revolving Credit Commitments shall be (A) an existing Lender
under the Credit Agreement, (B) the parent company and/or any affiliate of
an existing Lender under the Credit Agreement which is at least 50% owned
by such existing Lender under the Credit Agreement or its parent company or
(C) any fund that invests in bank loans and is managed or advised by the
same investment advisor of an existing Lender under the Credit Agreement or
by an Affiliate of such investment advisor;
(vii) on the respective Additional Revolving Credit Commitment
Effective Date, no Default and no Event of Default is then in existence or
would result from the increase to the Revolving Credit Commitments to occur
on such date; and
(viii) as promptly as practicable and in no event later than 60 days
following the Third Amendment Effective Date, the Collateral Agent shall
have received:
(a) fully executed counterparts of amendments (the "Mortgage
Amendments"), in form and substance satisfactory to the
Agents, to each of the Mortgages, together with evidence
that counterparts of each of the Mortgage Amendments have
been delivered to the title company insuring the Lien of
the Mortgages for recording in all places to the extent
necessary or desirable, in the judgment of the Collateral
Agent, to effectively maintain a valid and enforceable
first priority mortgage lien (subject only to Permitted
Encumbrances relating thereto) on the Mortgaged Properties
in favor of the Collateral Agent (or such other trustee as
may be required or desired under local law) for the
benefit of the Secured Creditors; and
(b) endorsements reasonably satisfactory to the Collateral
Agent to each Mortgage Policy assuring the Collateral
Agent that each Mortgage is a valid and enforceable first
priority mortgage lien on the respective Mortgaged
Property, free and clear of all defects and encumbrances
except Permitted Encumbrances.
Notwithstanding anything to the contrary contained above or elsewhere in this
Third Amendment, it is acknowledged and agreed that no Lender shall be required
to provide any Additional Revolving Credit Commitments, except to the extent
agreed in writing by such Lender with the Borrower (with each Lender being
entitled in its sole discretion not to furnish any Additional Revolving Credit
Commitments).
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It is understood and agreed that, on each Additional Revolving Credit Commitment
Effective Date (and after giving effect thereto), the Revolving Credit
Commitment of each Lender shall equal (x) in the case of each Lender which did
not provide an Additional Revolving Credit Commitment on such Additional
Revolving Credit Commitment Effective Date, an amount equal to its Revolving
Credit Commitment as in effect immediately prior to the effectiveness of the
respective Additional Revolving Credit Commitment Agreement executed on such
date, (y) in the case of a Lender which had a Revolving Credit Commitment prior
to such Additional Revolving Commitment Effective Date and which provided an
Additional Revolving Credit Commitment on such Additional Revolving Commitment
Effective Date, an amount equal to the sum of its Revolving Credit Commitment as
in effect immediately prior to the effectiveness of the respective Additional
Revolving Credit Commitment Agreement executed on such date plus the amount of
its Additional Revolving Credit Commitment provided on such date and (z) in the
case of any Lender which did not have a Revolving Credit Commitment prior to
such Additional Revolving Credit Commitment Effective Date, the amount of its
Additional Revolving Credit Commitment provided on such date. Based on the
information contained in the respective Additional Revolving Credit Commitment
Agreement and consistent with the requirements set forth above, on each
Additional Revolving Credit Commitment Effective Date, Schedule I to the Credit
Agreement shall be deemed modified to reflect the Revolving Credit Commitments
(after giving effect to the Additional Revolving Credit Commitments) on a basis
consistent with provisions of the immediately preceding sentence.
In connection with the foregoing, and upon each Additional Revolving Credit
Commitment Effective Date:
(i) each Additional Revolving Credit Lender will, to the extent not
already a Lender, become a "Lender" for all purposes of this Credit
Agreement and the other Credit Documents with the Loans and a Revolving
Credit Commitment as so recorded by the Payments Administrator in the
Register;
(ii) to the extent requested by any Additional Revolving Credit
Lender (and, in the case of any such Additional Revolving Credit Lender
that is an existing Lender, upon surrender by such Additional Revolving
Credit Lender to the Borrower of any Revolving Notes then held by such
Additional Revolving Credit Lender (or, if lost, upon the delivery by such
Additional Revolving Credit Lender to the Borrower of a standard lost note
indemnity)), a new Revolving Note will be issued, at the Borrower's
expense, to such Additional Revolving Credit Lender, which Revolving Note
shall be in conformity with the requirements of the Credit Agreement and
reflect the Revolving Credit Commitment of such Additional Revolving Credit
Lender (after giving effect to the provision of any Additional Revolving
Loan Commitments by such Additional Revolving Credit Lender on such
Additional Revolving Credit Commitment Effective Date);
(iii) with respect to all outstanding Letters of Credit and all
unreimbursed drawings with respect to any Letters of Credit, there shall be
an automatic adjustment to the participations by the Lenders in such
Letters of Credit and unreimbursed drawings with respect to any Letters of
Credit to reflect the new Revolving Credit Proportionate Shares of the
Revolving Credit Lenders;
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(iv) the respective Additional Revolving Credit Lender shall be
bound by (and entitled to the benefits of) the Lender Intercreditor
Agreement in accordance with the terms thereof, unless and to the extent
that the Lender Intercreditor Agreement has been terminated in accordance
with the terms thereof; and
(v) the Borrower agrees to indemnify the Payments Administrator
from and against any and all losses, claims, damages and liabilities of
whatsoever nature which may be imposed on, asserted against or incurred by
the Payments Administrator in performing its duties under this Third
Amendment (and under the Credit Agreement) other than those resulting from
the Payments Administrator's willful misconduct or gross negligence.
II. Other Amendments and Modifications to Credit Agreement.
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1. Section 1.1 of the Credit Agreement is hereby amended by deleting
the definition "Permitted Sale-Leaseback Transactions" in its entirety and
inserting in lieu thereof the following new definition of "Permitted Sale-
Leaseback Transactions":
Permitted Sale-Leaseback Transactions shall mean the sale and
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leaseback by the Borrower of Rental Equipment so long as (1) such
transaction or transactions are consummated prior to May 21, 2002, (2) the
structure, terms and conditions and documentation of any such transaction
are in form and substance satisfactory to the Administrative Agent and the
Required Lenders, (3) with respect to all units of Rental Equipment sold in
any such transaction, the Borrower receives cash in an amount equal to not
less than the net book value of such units, (4) no unit of Rental Equipment
sold pursuant to any such transaction was acquired by the Borrower or any
of its Subsidiaries after May 21, 1997 and (5) the Borrower receives no
more than $75,000,000 in cash proceeds in connection with all such
transactions.
2. Section 8.9 of the Credit Agreement is hereby amended by deleting
the last entry set forth in the table appearing therein and inserting in lieu
thereof the following new entry:
"Thereafter 1.90".
III. Acknowledgment with respect to Various Credit Documents.
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1. For avoidance of doubt, each Credit Party hereby acknowledges and
confirms its due authorization, execution and delivery of all Credit Documents
(each Credit Document as amended, modified or supplemented through and including
the date hereof), including all instruments, financing statements, agreements,
certificates and documents executed and delivered in connection therewith, and
hereby ratifies all actions heretofore taken in connection therewith.
2. Each Credit Party, by its execution and delivery of a copy of
this Third Amendment, hereby consents to the extensions of credit pursuant to
the Credit Agreement
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(including, without limitation, as amended by this Third Amendment). Each Credit
Party further acknowledges and agrees to the provisions of this Third Amendment
and hereby agrees for the benefit of the Lenders that all extensions of credit
(including as contemplated by this Third Amendment) pursuant to the Credit
Agreement (including, without limitation, as amended by this Third Amendment,
and as same may be further amended, modified or supplemented from time to time)
shall be fully entitled to all benefits of, and shall be fully guaranteed and
secured pursuant to and in accordance with the terms of, each of the Credit
Documents, as applicable.
3. Each party hereto hereby ratifies and confirms the provisions of
each of the First Consent, the First Amendment and the Second Amendment.
IV. Miscellaneous.
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1. In order to induce the Lenders to enter into this Third
Amendment, Holdings and the Borrower hereby represent and warrant that (i) all
of the representations, warranties and agreements contained in Article 6 of the
Credit Agreement and in the other Credit Documents are true and correct in all
material respects on and as of the Third Amendment Effective Date (unless such
representations and warranties relate to a specific earlier date, in which case
such representations and warranties shall be true and correct as of such earlier
date) and (ii) there exists no Default or Event of Default on the Third
Amendment Effective Date, in each case both before and after giving effect to
this Third Amendment.
2. This Third Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
3. This Third 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 Administrative Agent.
4. THIS THIRD AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
5. This Third Amendment shall become effective on the date (the
"Third Amendment Effective Date") when Holdings, the Borrower, each Subsidiary
Guarantor, the Required Lenders and the Requisite Lenders shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including, without limitation, by usage of facsimile transmission)
the same to the Administrative Agent at its Notice Office. This Third Amendment
and the agreements contained herein shall be binding on the successors and
assigns of the parties hereto.
6. From and after the Third 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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* * *
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IN WITNESS WHEREOF, the parties hereto have caused a counterpart of
this Third Amendment to be duly executed and delivered as of the date first
above written.
SCOTSMAN HOLDINGS, INC.
By_____________________________
Name:
Title:
XXXXXXXX SCOTSMAN, INC.
By_____________________________
Name:
Title:
BANKERS TRUST COMPANY,
as Issuing Bank
By_____________________________
Name:
Title:
BT COMMERCIAL CORPORATION,
Individually and as Administrative
Agent and Co-Syndication Agent
By_____________________________
Name:
Title:
BANK OF AMERICA BUSINESS CREDIT (f/k/a
NationsBank, N.A.)
Individually and as Co-Syndication Agent
By________________________________________
Name:
Title:
XXXXXXX SACHS CREDIT PARTNERS L.P.,
Individually and as Documentation Agent
By_______________________________________
Name:
Title:
CIT BUSINESS CREDIT (f/k/a The CIT
Group/Business Credit, Inc.)
By________________________________
Name:
Title:
CONGRESS FINANCIAL CORPORATION
By____________________________
Name:
Title:
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company,
its Investment Manager
By______________________________
Name:
Title:
KZH CRESCENT LLC
By:______________________________
Name:
Title:
DIME COMMERCIAL CORP.
By___________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By: ___________________________
Name:
Title:
FLEET CAPITAL CORPORATION
By_____________________________
Name:
Title:
IBJ WHITEHALL BANK & TRUST COMPANY
(f/k/a IBJ Xxxxxxxx Business Credit Corporation)
By______________________________________________
Name:
Title:
LASALLE NATIONAL BANK
By__________________________
Name:
Title:
MERCANTILE SAFE DEPOSIT AND TRUST COMPANY
By_______________________________________
Name:
Title:
NATIONAL BANK OF CANADA,
A CANADIAN CHARTERED BANK
By____________________________
Name:
Title:
NATIONAL CITY COMMERICAL FINANCE,
INC.
By______________________________
Name:
Title:
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar,
L.P. its General Partner
By: Oak Hill Securities MGP,
Inc., its General Partner
By______________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By______________________________
Name:
Title:
SUMMIT BUSINESS CAPITAL CORP. (f/k/a
Summit Commercial/Gibraltar Corp.)
By___________________________________
Name:
Title:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By______________________________________
Name:
Title:
UNION BANK OF CALIFORNIA
By___________________
Name:
Title:
SIEMENS BUSINESS CREDIT CORP.
By___________________
Name:
Title:
THE FUJI BANK, LIMITED
By:_________________________
Name:
Title:
TCW LEVERAGED INCOME TRUST II, L.P.
By:_________________________
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:_________________________
Name:
Title:
SENECA CBO II, L.P.
By:_________________________
Name:
Title:
PEOPLES BANK
By:_________________________
Name:
Title:
XXXXXX CBO 1999-I LTD.
By:_________________________
Name:
Title:
XXXXXX FINANCIAL INC.
By:_________________________
Name:
Title:
FINOVA CAPITAL CORPORATION
By:_________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:_________________________
Name:
Title:
MOUNTAIN CAPITAL CLO I, LTD.
By:_________________________
Name:
Title:
XXXXX FARGO BANK, NA
By:_______________________________
Name:
Title:
FIRST DOMINION FUNDING II
By:_______________________________
Name:
Title:
Acknowledged and Agreed:
WILLSCOT EQUIPMENT, LLC
By: Xxxxxxxx Scotsman, Inc., as a Member
SPACE MASTER INTERNATIONAL, INC.
EVERGREEN MOBILE COMPANY
By_______________________________
Name:
Title:
On behalf of each of the above
Subsidiary Guarantors
ANNEX 1
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FORM OF
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ADDITIONAL REVOLVING CREDIT COMMITMENT AGREEMENT
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[Name(s) of Lender(s)]
[Date]
Xxxxxxxx Scotsman, Inc., as Borrower
under the Credit Agreement referred
to below
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxx
BT Commercial Corporation, as Administrative
Agent for the Lenders party to the Credit
Agreement referred to below
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Bankers Trust Company, as Issuing
Lender under the Credit Agreement
referred to below
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
re: Revolving Credit Commitment
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Ladies and Gentlemen:
Reference is hereby made to the Credit Agreement, dated as of May
22, 1997 and amended and restated as of September 1, 1998 (as amended, modified
or supplemented from time to time, including on the date hereof, the "Credit
Agreement"), among Scotsman Holdings, Inc. (as Holdings), Xxxxxxxx Scotsman,
Inc. (as Borrower), the financial institutions from time to time party thereto
(as Lenders), Bankers Trust Company (as Issuing Bank), BT Commercial Corporation
(as Administrative Agent and Co-Syndication Agent), Bank of America Business
Credit (f/k/a NationsBank, N.A.) (as Co-Syndication Agent), and Xxxxxxx Sachs
Credit Partners L.P. (as Documentation Agent). Unless otherwise defined herein,
capitalized terms used herein shall have the respective meanings set forth in
the Credit Agreement.
Annex I
Page 2
Each financial institution (each, an "Additional Revolving Credit
Lender") party to this letter agreement (this "Agreement") hereby severally
agrees to provide under the Credit Agreement the Revolving Credit Commitment
(each, an "Additional Revolving Credit Commitment") set forth opposite its name
on Annex I attached hereto. Each Additional Revolving Credit Commitment provided
pursuant to this Agreement shall be subject to the terms and conditions set
forth in the Credit Agreement.
Each Additional Revolving Credit Lender and the Borrower acknowledge
and agree that (i) the Additional Revolving Credit Commitments provided pursuant
to this Agreement shall constitute Revolving Credit Commitments (in the amounts
specified in Annex I attached hereto) under, and as defined in, the Credit
Agreement and (ii) the maturity date and interest rate applicable to the
Revolving Loans to be made pursuant to the Additional Revolving Credit
Commitments provided hereby shall be identical to those applicable to the
Revolving Loans under the Credit Agreement. Each Additional Revolving Credit
Lender and the Borrower further agree that, with respect to the Additional
Revolving Credit Commitments provided by it pursuant to this Agreement, such
Lender shall receive a non-refundable cash fee in an amount equal to 1/2 of 1%
of the Additional Revolving Credit Commitment of each such Additional Revolving
Credit Lender, which fee shall be due and payable to such Additional Revolving
Credit Lender on (or within two Business Days following) the date on which the
Additional Revolving Credit Commitments to be provided pursuant to this
Agreement is made.
Each Additional Revolving Credit Lender party to this Agreement, to
the extent that it is not already a Lender under the Credit Agreement, (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 Agreement and to
become a Lender under the Credit Agreement, (ii) agrees that it will,
independently and without reliance upon the Administrative 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
Administrative Agent (including the Administrative Agent in its capacity as
Payments Administrator and 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 Administrative Agent, Payments
Administrator or the Collateral Agent, as the case may be, by the terms thereof,
together with such powers as are reasonably incidental thereto, (iv) agrees that
it will be a "Lender" for all purposes of the Credit Agreement and the other
Credit Documents and 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 and agrees that it will be bound by the terms of the
Intercreditor Agreement and the Lender Intercreditor Agreement and (vi) in the
case of each such Additional Revolving Credit Lender which is organized under
the laws of a jurisdiction outside the United States and is not already a
Lender, attaches the forms prescribed by the Internal Revenue Service of the
United States, as described in Section 2.9 of the Credit Agreement, certifying
as to such Additional Revolving Credit Lender's status for purposes of
determining exemption from United States withholding taxes with respect to all
payments to be made to such Additional Revolving Credit Lender under the Credit
Agreement or such other
Annex I
Page 3
documents as are necessary to indicate that all such payments are subject to
such rates at a rate reduced by an applicable tax treaty.
This Agreement shall become effective as of the date when (i) the
Borrower, each Additional Revolving Credit Lender, the Issuing Bank and the
Administrative Agent 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 and (ii)
each condition set forth in Section 1 of the Third Amendment to the Credit
Agreement, dated as of January __, 2001, shall have been satisfied to the
reasonable satisfaction of the Administrative Agent.
You may accept this Agreement by signing the enclosed copies in the
space provided below, and returning one copy of same to us before the close of
business on __________ __, 2001. If you do not so accept this Agreement by such
time, our Additional Revolving Credit Commitments set forth in this Agreement
shall be deemed canceled.
After the execution and delivery to the Administrative Agent of a
fully executed copy of this Agreement (including by way of counterparts and by
usage of facsimile transmission) by the parties hereto, this Agreement may only
be changed, modified or varied by written instrument in accordance with the
applicable requirements for the modification of Credit Documents pursuant to
Sections 11.10 and 11.20 of the Credit Agreement.
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Annex I
Page 4
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
Very truly yours,
[NAME OF LENDER(S)]
By:__________________________
Name:
Title:
Agreed to and Accepted
this ___ day of __________, 2001:
XXXXXXXX SCOTSMAN, INC.,
as Borrower
By:_____________________________
Name:
Title:
BT COMMERCIAL CORPORATION,
as Administrative Agent
By:_____________________________
Name:
Title:
BANKERS TRUST COMPANY,
as Issuing Bank
By:_____________________________
Name:
Title:
Annex I
Page 5
ANNEX I
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1. Agreement Effective Date: _________, ____ (the "Agreement Effective
Date")
2. Revolving Credit Commitment Amounts (as of the Agreement Effective
Date)
Financial Institution Revolving Credit Commitment
--------------------- ---------------------------
$_____________
$_____________
$_____________
$_____________
$_____________
Total: $_____________
