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EXHIBIT 4.14
AMENDMENT NO. 2 TO THE
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NO. 2 (this "Amendment"), dated as of December 15, 1999 to
the TRANSFER AND ADMINISTRATION AGREEMENT (as amended by Amendment No. 1, dated
September 15, 1999, the "Agreement"), dated as of June 18, 1999, by and among
KCH FUNDING, L.L.C., a Delaware limited liability company, as transferor (in
such capacity, the "Transferor"), UNOVA, INC., a Delaware corporation, as the
parent of the Transferor (in such capacity, the "Parent") and as servicer (in
such capacity, the "Servicer"), ENTERPRISE FUNDING CORPORATION, a Delaware
corporation (the "Company"), BANK OF AMERICA N.A., a national banking
association ("Bank of America"), as Lead Arranger, as agent for the Company and
the Bank Investors (in such capacity, the "Agent"), as Administrative Agent and
as a Bank Investor.
PRELIMINARY STATEMENTS
WHEREAS, the parties hereto have entered into the Agreement whereby
the Transferor may convey, transfer, and assign from time to time undivided
interests in certain accounts receivable, and the Company may, and the Bank
Investors, if requested, shall accept such conveyance, transfer and assignment
of such undivided percentage interests, subject to the terms and conditions of
the Agreement; and
WHEREAS, the parties to the Agreement desire to make a certain
amendments to the Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. Except as otherwise stated herein, capitalized terms
not defined herein shall have the respective meanings assigned to them in the
Agreement.
2. Amendments to the Agreement.
(a) Section 1.1 of the Agreement is hereby amended by amending
the definition of "Originator Subsidiaries" to read in its entirety as follows:
"Originator Subsidiaries" means, collectively, (i) the divisions
listed on Annex 2 hereto of IAS, (ii) Intermec, (iii) MM&E and
(iv) such other divisions of IAS or other entities which are
listed on Annex 2 as such annex may from time to time be amended
by the written agreement of the parties hereto.
(b) Section 1.1 of the Agreement is further amended by adding
the following new definition:
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"MM&E" means M M & E, Inc., a Nevada corporation.
(c) The first sentence of Section 5.3 of the Agreement is hereby
amended to read in its entirety as follows:
"The Leverage Ratio shall at no time exceed 3.95 to 1.0."
(d) Section 7.1 (l) of the Agreement is hereby amended to read
in its entirety as follows:
"(l) the Dilution Ratio averaged for any period of two (2)
consecutive months exceeds 4.5%; or"
(e) Section 7.1 (n) of the Agreement is hereby amended to read
in its entirety as follows:
"(n) the Delinquency Ratio averaged for any period of three (3)
consecutive months exceeds 25%; or"
(f) Annex 2 to the Agreement is hereby amended to read in its
entirety as set forth in Exhibit A hereto.
3. Representations and Warranties. To induce the Company and the
Bank Investors to enter into this Amendment, each of the Transferor and the
Parent hereby represents and warrants (each as to itself) as of the Effective
Date (as hereinafter defined) that:
(a) it has the power, authority and legal right to make and
deliver this Amendment and to perform its obligations under the Agreement, as
amended by this Amendment, without any notice, consent, approval or
authorization not already obtained, and that it has taken all necessary action
to authorize the same.
(b) the making and delivery of this Amendment and the
performance of the Agreement, as amended by this Amendment, do not violate any
provision of law or any regulation, or its charter or by-laws, or result in the
breach of or constitute a default under or require any consent under any
indenture or other agreement or instrument to which it is a party or by which it
or any of its properties may be bound or affected. The Agreement, as amended by
this Amendment, constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, except as the enforceability thereof
may be limited by any applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally.
(c) The representations and warranties made by it contained in
any Transaction Document are true and correct on and as of the date of this
Amendment and after giving effect hereto.
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(d) No Termination Event or Potential Termination Event has
occurred and is continuing under the Agreement as of the date of this Amendment
and after giving effect hereto.
4. Conditions to Closing. On or prior to the date of execution
hereof, the Agent shall have received original copies of this Amendment and each
of the documents set forth in Exhibit B hereto, each in form and substance
satisfactory to the Agent.
5. Effective Date. The effective date of this Amendment (the
"Effective Date") is June 18, 1999; provided, however that Sections 2(c), (d)
and (e) of this Amendment shall be effective as of the date hereof.
6. Reference to and Effect on the Transaction Documents. On and
after the Effective Date (i) each reference in the Agreement to "This
Agreement", "hereunder", "hereof" or words of like import, and each reference in
any other Transaction Document to "the Transfer and Administration Agreement",
"thereunder", "thereof" or words of like import, referring to the Agreement,
shall mean and be a reference to the Agreement as amended hereby.
7. Agreement and all other Transaction Documents in Full Force and
Effect. Except as specifically amended hereby, each Transaction Document and
shall continue to be in full force and effect and is hereby in all respects
ratified and confirmed. 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 Lender, any Bank Investor or the Agent under
any Transaction Document, nor constitute a waiver of any provision of any
Transaction Document.
8. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original and all of which taken together
shall constitute a single instrument with the same effect as if the signatures
thereto and hereto were upon the same instrument.
9. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
ENTERPRISE FUNDING CORPORATION,
as Company
By: /s/ Andrew L. Stidd
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Title: President
KCH FUNDING, L.L.C.,
as Transferor
By: /s/ Elmer C. Hull Jr.
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Title: Treasurer
UNOVA, INC.,
as Parent and as Servicer
By: /s/ Elmer C. Hull Jr.
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Title: VP & Treasurer
BANK OF AMERICA, N.A., as Agent
and a Bank Investor
By: : /s/ Robert R. Wood
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Title: Vice President
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EXHIBIT A
Annex 2
Originator Subsidiaries and Divisions
A. UNOVA Industrial Automation Systems, Inc.
Divisions
Lamb Technicon Machining Systems
Lamb Technicon Body & Assembly Systems
Cincinnati Machine
B. Intermec Technologies Corporation
C. M M & E, Inc.
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EXHIBIT B
CONDITIONS PRECEDENT
TO AMENDMENT NO. 2
1. Amendment No. 1 to the Receivables Purchase Agreement
2. Amended Originator Receivables Purchase Agreement
3. Certificate of Sale
4. Subordinated Note
5. Subservicer Letter Agreement
6. Certificate of the Secretary of MME with the following items attached:
- Articles of Incorporation of MME
- Bylaws of MME
- Resolutions of the Board of Directors of MME
7. Articles of Incorporation of MME, certified by the Secretary of State of
Nevada.
8. Certificate of good standing of MME from the Secretary of State of
Nevada.
9. Certificate of qualification as a foreign corporation of MME in
Michigan.
10. Resolutions of the Transferor.
11. Enforceability and no conflict opinion of counsel to MME.
12. Opinion of in-house counsel to the Seller, the Transferor and MME.
13. UCC-1 Financing Statements by MME in favor of UNOVA, Inc.
14. Search Results for MME covering UCC liens, judgments and tax liens.