AMENDMENT NO. 2
AND CONSENT
to
CREDIT AGREEMENT
Dated as of December 21, 1992
THIS AMENDMENT NO. 2 AND CONSENT ("Amendment") is entered into
as of April 24, 1995 by and among Giddings & Lewis, Inc., a Wisconsin
corporation, Giddings & Lewis, Ltd., a corporation formed under the laws
of the United Kingdom, Giddings & Lewis GmbH, a corporation formed under
the laws of the Republic of Germany, and the institutions identified on
the signature pages hereof as Agent and Lenders which are signatories
hereto. Capitalized terms used herein but not defined herein shall have
the meanings provided in the Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the U.S. Borrower, Multicurrency Borrowers, and the
Lenders are parties to that certain Credit Agreement dated as of December
21, 1992, as heretofore amended (together with the Exhibits and Schedules
thereto, the "Credit Agreement"), pursuant to which the Lenders have
agreed to provide certain financial accommodations to the U.S. Borrower
and Multicurrency Borrowers;
WHEREAS, the U.S. Borrower intends to make one or more
Investments in a newly formed wholly-owned Subsidiary, Bike Corp., a
Wisconsin corporation, ("Bike") for the purpose of enabling Bike to
acquire all of the issued and outstanding Capital Stock of Fadal
Engineering Company, Inc., a California corporation ("Fadal") as more
particularly described in that certain Stock Purchase Agreement dated as
of April 24, 1995 to which the Borrower and Bike are parties (the
"Purchase Agreement") for a cash purchase price of $150,000,000, subject
to post-closing adjustment as more particularly described in the Purchase
Agreement;
WHEREAS, the U.S. Borrower further intends to cause the merger
of Fadal with and into Bike, with Bike being the surviving corporation and
changing its name to Fadal Engineering, Inc. ("Merger"), upon consummation
of the acquisition under the Purchase Agreement;
WHEREAS, in view of the foregoing, the U.S. Borrower has
requested certain consents be provided in accordance with the terms of the
Credit Agreement and certain amendments to the Credit Agreement are
required to accommodate the transactions contemplated by the Purchase
Agreement and in connection with the formation of Bike and the Merger;
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 parties hereto hereby agree as follows:
1. Amendment to Credit Agreement. Effective as of the date
first written above upon satisfaction of the conditions precedent set
forth in Section 3 below, the Credit Agreement is hereby amended as
follows:
1.1 Section 1.01 is amended to (i) delete the definitions of
"Funded Debt to Capitalization Ratio" and "Restricted Subsidiaries" in
their entirety and substitute the following therefor:
"Funded Debt to Capitalization Ratio" means, as of any date of
determination, the ratio of (i) the sum of (A) the Borrower's
consolidated long-term Funded Debt for borrowed money, including the
current portion of such long-term Funded Debt, plus (B) to the extent
not otherwise included in clause (A) above, the aggregate outstanding
principal balance of Advances, Multicurrency Advances, and B Advances
plus (C) the aggregate face amount of all letters of credit issued
for the account of the U.S. Borrower or any of its Subsidiaries plus
(D) the aggregate outstanding principal balance of "Advances" and "B
Advances" under the 1995 Credit Agreement to (ii) the sum of (X) the
amounts determined pursuant to clauses (i) (A), (i)(B), and (i)(D) of
this definition, plus (Y) the U.S. Borrower's consolidated
stockholders equity.
"Restricted Subsidiaries" means the Multicurrency Borrowers, Cross &
Trecker Corporation, a Michigan corporation, Bike Corp., a Wisconsin
corporation, Fadal Engineering Company, Inc., a California
corporation, and from and after the Merger becoming effective, Fadal
Engineering, Inc., as the surviving entity in the Merger; each of
which is a "Restricted Subsidiary".
(ii) add the following provision at the end of the definition of "Debt":
"Debt" of the U.S. Borrower and its Subsidiaries shall not include
the face amount of letters of credit issued for the account of the
U.S. Borrower or any of its Subsidiaries.
(iii) delete the definition of "Senior Debt" in its entirety, and
(iv) add the following definitions:
"Merger" means the merger of Fadal Engineering Company, Inc., a
California corporation, with and into Bike Corp., a Wisconsin
corporation and wholly-owned Subsidiary of the U.S. Borrower, with
Bike Corp. being the surviving entity and changing its corporate name
to Fadal Engineering, Inc.
"1995 Credit Agreement" means that certain Credit Agreement dated as
of April 24, 1995, by and among Giddings & Lewis, Inc., the financial
institutions from time to time a party thereto as "Lenders" and
"Issuing Banks", and Citibank, N.A., as agent, as the same may be
amended, restated, supplemented, and extended from time to time.
1.2 Section 6.01(h) is amended to insert the phrase "any
Restricted Subsidiary" after the phrase "either Multicurrency Borrower,"
in each place it appears in such subsection and to insert the phrase
"either Multicurrency Borrower, any Restricted Subsidiary" after the term
"U.S. Borrower" when first appearing in the phrase "or the U.S. Borrower
or any of the Significant Subsidiaries of the U.S. Borrower" which appears
in the final clause of such subsection.
2. Consents. The Lenders signatory hereto and comprising at
least the Majority Lenders hereby consent to:
2.1 the U.S. Borrower's Investments in Bike to enable Bike to
acquire all of the issued and outstanding Capital Stock of Fadal pursuant
to the terms of the Purchase Agreement, and
2.2 following the consummation of the acquisition described in
Section 2.1, the merger of Fadal with and into Bike, with Bike being the
surviving corporation.
3. Conditions to Effectiveness. The amendments and consents
set forth in in Sections 1 and 2 hereof shall become effective as of the
date first written above provided that (i) Agent shall have received, on
or before April 21, 1995, executed counterparts of this Amendment signed
on behalf of the U.S. Borrower, the Multicurrency Borrowers, and Lenders
constituting at least the Majority Lenders and (ii) the acquisition
contemplated by the Purchase Agreement is consummated on or before April
28, 1995.
4. Representations, Warranties and Covenants.
4.1 The U.S. Borrower hereby represents and warrants that this
Amendment and the Credit Agreement, as amended hereby, constitute the
legal, valid and binding obligations of the U.S. Borrower and
Multicurrency Borrowers and are enforceable against the U.S. Borrower and
Multicurrency Borrowers in accordance with their terms.
4.2 The U.S. Borrower hereby represents and warrants that,
before and after giving effect to this Amendment (including, without
limitation, the consents set forth in Section 2 above), the consummation
of the acquisition described in the Purchase Agreement, and the making of
loans and other extensions of credit contemplated by the 1995 Credit
Agreement, no Event of Default has occurred and is continuing.
4.3 The U.S. Borrower hereby reaffirms all agreements,
covenants, representations and warranties made in the Credit Agreement, to
the extent the same are not amended hereby, and made in the other Loan
Documents to which it is a party; and agrees that all such agreements,
covenants, representations and warranties shall be deemed to have been
remade as of the effective date of this Amendment.
5. Reference to and Effect on the Credit Agreement.
5.1 Upon the effectiveness of this Amendment, 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 hereby.
5.2 Except as specifically amended above, the Credit Agreement
shall remain in full force and effect, and is hereby ratified and
confirmed.
5.3 The execution, delivery, and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of the Agent or Lenders, nor
constitute a waiver of any provision of any of the Loan Documents.
6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
7. Headings. Section headings in this Amendment are included
herein 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 the parties hereto on any number of separate counterparts, each of
which shall be deemed an original and all of which, taken together, shall
be deemed to constitute one and the same instrument. Delivery of an
executed counterpart of this Amendment by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
IN WITNESS WHEREOF, this Amendment has been duly executed as of
the day and year first above written.
GIDDINGS & LEWIS, INC.
By/s/ Douglas E. Barnett
Name: Douglas E. Barnett
Title: Treasurer
GIDDINGS & LEWIS GmbH
By/s/ Douglas E. Barnett
Name: Douglas E. Barnett
Title: Treasurer
GIDDINGS & LEWIS, LTD.
By/s/ Douglas E. Barnett
Name: Douglas E. Barnett
Title: Treasurer
CITIBANK, N.A., as Agent and Lender
By/s/ Gerald Gallucci
Name: Gerald Gallucci
Title: Vice President
FIRSTAR BANK MILWAUKEE, N.A.
By/s/ Robert A. Flosbach
Name: Robert A. Flosbach
Title: Vice President
THE BANK OF NOVA SCOTIA
By/s/ A. S. Norsworthy
Name: A. S. Norsworthy
Title: Assistant Agent
NORWEST BANK WISCONSIN, NATIONAL
ASSOCIATION
By/s/ Daniel G. Fragrer
Name: Daniel G. Fragrer
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT GRAND
CAYMAN BRANCH
By/s/ Paul Karlin
Name: Paul Karlin
Title: A.C.
By/s/ Joachim G. Fochs
Name: Joachim G. Fochs
Title: Executive Vice President
FIRST BANK NATIONAL ASSOCIATION
By/s/ Terese A. Radford
Name: Terese A. Radford
Title: Commercial Banking Officer
THE NORTHERN TRUST COMPANY
By/s/ Julie J. Wigdale
Name: Julie J. Wigdale
Title: Vice President