Exhibit 4.3
AMENDMENT NO. 1 TO CREDIT
AGREEMENT
AND CONSENTS AND WAIVER
AND AMENDMENT NO. 1 TO
SECURITY AGREEMENT — BORROWERS
This AMENDMENT NO. 1 TO CREDIT
AGREEMENT AND CONSENTS AND WAIVER AND AMENDMENT NO. 1 TO SECURITY
AGREEMENT — BORROWERS , made as of the 29th day of March,
2005 (this “Amendment”), among UNOVA, INC. , a
Delaware corporation, UNOVA INDUSTRIAL AUTOMATION SYSTEMS,
INC ., a Delaware corporation, INTERMEC TECHNOLOGIES
CORPORATION , a Washington corporation, INTERMEC
INTERNATIONAL INC. , a Washington corporation, INTERMEC
TECHNOLOGIES MANUFACTURING, LLC, a Washington limited liability
company, INTERMEC IP CORP ., a Delaware corporation, and
UNOVA IP CORP ., a Delaware corporation, each a Borrower and
collectively as the Borrowers, the financial institutions listed on
the signature pages of the Credit Agreement, as the Lenders,
KEYBANK NATIONAL ASSOCIATION , a national banking
association, as the Administrative Agent for the Lenders, and
KEYBANK NATIONAL ASSOCIATION, a national banking
association, as the LC Issuer,
WITNESSETH:
WHEREAS , the Borrowers have been extended certain
financial accommodations pursuant to the Credit Agreement, dated as
of September 30, 2004 (the “Credit Agreement”),
among the Borrowers, the Administrative Agent, the Lenders, and the
Issuer and the Borrowers have executed the Security Agreement
— Borrowers, dated as of September 30, 2004;
WHEREAS , Borrowers and UNOVA Industries, Inc. are in
the process of disposing, in one or more asset or stock
transactions, the Industrial Automation Systems Segment as
permitted by Section 5.3(a)(I) of the Credit Agreement
;
WHEREAS , in consideration of the disposition of the
Industrial Automation Systems Segment, the Borrowers may receive a
combination non-cash consideration including promissory notes,
preferred stock, joint venture interests or limited partnership
interests as well as cash consideration;
WHEREAS , the Credit Agreement limits the amount of
credit extension by the Borrowers and the amount of investments
held by the Borrowers and such non-cash consideration may
constitute a credit extension or an investment under the Credit
Agreement;
WHEREAS , the parties desire: (i) to allow the Borrowers
to receive non-cash consideration with respect to such Industrial
Automation Systems Segment transactions without violating the terms
of the Credit Agreement or having to utilize the permissive credit
extension and investment baskets set forth in the Credit Agreement
and (ii) to make related adjustments to the Credit Agreement and
other Loan Documents by means of consents, waivers and amendments;
and
WHEREAS , the Banks which are signatories hereto
constitute the “Required Lenders” for the purposes of
Section 13.1 of the Credit Agreement;
NOW THEREFORE
, in consideration of the mutual
promises and agreements contained herein and other good and
valuable consideration, the receipt and adequacy of which are
hereby
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acknowledged, the Borrowers, the Administrative
Agent, the Lenders and the LC Issuer do hereby agree as
follows:
Section 1 .
DEFINED TERMS.
Each defined term used herein and
not otherwise defined herein shall have the meaning ascribed to
such term in the Credit Agreement.
Section 2
CONSENT AND
WAIVER.
(a)
Consents . In accordance with Section 13.1 of the
Credit Agreement, the Required Banks hereby consent to:
(i)
any non-cash consideration received
by the Borrowers in connection with the sale or other disposition
(including any contribution of assets to a Person other than a
natural Person) in one or more transactions of the Industrial
Automation Systems Segment, and any such non-cash consideration
shall: (a) not be included in the calculation of any applicable
numeric limitations or baskets set forth in Section 5.3 of the
Credit Agreement and (b) not be considered to be or be included in
the calculation of Net Proceeds for purposes of any provision of
the Credit Agreement except to the extent that cash proceeds are
subsequently received in respect of non-cash consideration
initially received;
(ii)
the sale or other disposition of
UNOVA Industries, Inc. (other than the non Industrial Automation
Systems Segment holdings or assets thereof, if any) or the sale or
other disposition by UNOVA Industries, Inc. of any equity interest
held of record by it in entities which are part of the Industrial
Automation Systems Segment;
(iii)
(a) the transfer by UNOVA, Inc. of
the shares of UNOVA Canada, Inc. to Intermec Technologies
Corporation, (b) the transfer by Intermec Technologies Corporation
of the shares of UNOVA Canada, Inc to Intermec Technologies Canada
Ltd. and (c) the amalgamation of UNOVA Canada Inc and Intermec
Technologies Canada Ltd., but only to the extent all new shares of
the surviving entity will be issued to Intermec Technologies
Corporation;
(iv)
in the event of sale of
substantially all of the assets of Honsberg Lamb
Sonderwerzeugmaschinen GmbH, the merger of Intermec Technologies
GmbH with Honsberg Lamb Sonderwerzeugmaschinen GmbH and any related
equity transfers necessary to accomplish such merger but only the
extent (a) the surviving entity which receives ownership of such
assets or interests as a result of such transactions is a
Wholly-Owned Subsidiary of UNOVA, Inc. and (b) such Subsidiary is
or becomes a Borrower or Guarantor if such Subsidiary is not an
Excluded Subsidiary or a Foreign Subsidiary, (c) as a result of
such transaction or transactions, no Borrower or Subsidiary
Guarantor will become an Excluded Subsidiary or Foreign Subsidiary,
(d) as a result of such transaction or transactions, no assets of
any Borrower or Subsidiary Guarantor (other than assets originally
owned by Honsberg Lamb Sonderwerzeugmaschinen GmbH) will become the
assets an Excluded Subsidiary or Foreign Subsidiary and (e) in
connection with such transaction or transactions, the Borrowers
shall comply at all times with the provisions of Section 5.13(b) of
the Security Agreement delivered by the Borrowers in connection
with the Credit Agreement;
(v)
the transactions contemplated in
that certain Purchase and Sale Agreement, dated as of March 17,
2005(the “PSA”), between UNOVA, Inc. and Subsidiaries
of UNOVA, Inc. and MAG Industrial Automation Systems LLC.,
including the extension of credit related to the
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severance of certain employees to
the extent identified in the “Lamb U.K. Restructure
Plan” (as defined in such Purchase and Sale
Agreement);
(vi)
the transactions contemplated in
connection with the Limited Partnership Agreement of Cincinnati
Millworks, L.P., a draft (draft date 2\23\05) of which was
furnished to the Administrative Agent (the “Millwork LP
Agreement”), among Trademark Millworks, L.P., UNOVA
Industrial Automation Systems, Inc. and The Kirk & Blum
Manufacturing Company; provided that the substance of the
executed agreement shall not materially differ from the draft
furnished to the Administrative Agent and any change shall be
reasonably acceptable to the Administrative Agent; and
(vii)
after consummation of the
disposition of the assets of any Subsidiary within the Industrial
Automation Systems Segments (an “IAS Entity”), the
merger or consolidation of such Subsidiary, with or into, or the
disposition of the assets of such Subsidiary to, in each case
whether in one or a series of transactions, a Borrower, a
Subsidiary Guarantor, an Excluded Subsidiary or a Foreign
Subsidiary (whether such disposition is by means of lease, sale,
sale-leaseback, license or another type of transfer);
provided that: (a) the Borrowers shall comply at all times
with the provisions of Section 5.13(b) of the Security Agreement
delivered by the Borrowers in connection with the Credit Agreement,
(b) as a result of such transaction or transactions, no Borrower or
Subsidiary Guarantor will become an Excluded Subsidiary or Foreign
Subsidiary, (c) as a result of such transaction or transactions, no
assets of any Borrower or Subsidiary Guarantor (other than assets
originally owned by such IAS Entity) will become the assets an
Excluded Subsidiary or Foreign Subsidiary, (d) such transaction or
transactions will not have an adverse effect (other than in a de
minimis manner) on the Lenders or any Borrower or Subsidiary
Guarantor by reason of, by way of example but not limitation, loss
of perfection or priority of the security interests in Collateral
held by the Administrative Agent or any increase in the liabilities
of any Borrower or Subsidiary Guarantor, (e) any resulting
Subsidiary is or becomes a Borrower or Guarantor if such Subsidiary
is not an Excluded Subsidiary or a Foreign Subsidiary, and (f) at
least thirty (30) days prior to the consummation of any such
transaction or transactions, the Borrowers shall notify the
Administrative Agent in writing of such transaction or transactions
and the structure thereof; provided , further that
any such transaction or transactions that would not otherwise be
permitted by clause (F) and clause (G) of Section 5.3(a) of the
Credit Agreement shall be consummated only if necessary for the
Borrowers’ receipt of tax benefits or beneficial tax
attributes.
(b)
Waiver . In accordance with Section 13.1 of the
Credit Agreement, the Required Banks hereby waive compliance with
the requirements of Section of the 5.01 of that certain Security
Agreement — Borrowers, dated as of September 30, 2004,
between the Borrowers and the Administrative Agent, with respect to
any first tier Foreign Subsidiary of the Industrial Automation
Systems Segment until such time as the Borrowers are required to
pledge the stock thereof pursuant to the terms of Section 5.2(n)
the Credit Agreement.
Section 3 .
AMENDMENTS TO THE CREDIT
AGREEMENT.
3.1
Amendment to Section
1.1. Section 1.1
of the Credit Agreement is hereby amended by deleting the existing
“Industrial Automation Systems Segment” definition in
its entirety and substituting thereof the following
definition:
“ Industrial Automation
Systems Segment ” means: (i) the operations of UNOVA
Industrial Automation Systems, Inc., R&B Machine Tool Company,
UNOVA JSM, Inc., UNOVA IP Corp., Honsberg Lamb
Sonderwerkzeugmaschinen GmbH, Cincinnati Machine U.K.
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Limited, UNOVA U.K. Limited, The
Factory Power Company, Cincinnati Machine Korea Corp., Cincinnati
Machine UK Holdings Limited, Cincinnati Machine Holdings
