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EXHIBIT 4.18
AMENDMENT NO. 5 AND WAIVER
AMENDMENT NO. 5 AND WAIVER (this "Amendment and Waiver") dated as of
October 20, 2000 to the TRANSFER AND ADMINISTRATION AGREEMENT, dated as of June
18, 1999 (as amended by Amendment No. 1 dated September 15, 1999, Amendment No.
2 dated as of December 15, 1999, Amendment No. 3 dated as of June 16, 2000 and
Amendment No. 4 and Waiver dated as of August 30, 2000, the "Agreement"), 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 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 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. Limited Waiver. (a) Subject to the satisfaction of the conditions to
effectiveness set forth in Section 5 hereof, the Company and the Agent hereby
agree to waive during the period from and including September 30, 2000 to but
not including November 14, 2000 (i) the compliance by the Parent with Section
5.3 of the Agreement and (ii) the Termination Event under Section 7.1(c)(i) of
the Agreement, but only with respect to the failure of the Parent to comply with
Section 5.3 of the Agreement.
(b) The waiver granted herein shall be limited as provided in Section 2(a)
hereof, and (i) shall not constitute a waiver of compliance by the Parent with
any section of the Agreement except Section 5.3, or a waiver of any Termination
Event under the Agreement except the Termination Event under Section 7.1(c)(i)
of the Agreement (with respect to the failure of the Parent to comply with
Section 5.3 of the Agreement), and (ii) shall not constitute a waiver of
compliance by the Parent with Section 5.3 of the Agreement, or a waiver of the
Termination Event under Section 7.1(c)(i) of the Agreement (with respect to
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the failure of the Parent to comply with Section 5.3 of the Agreement) at any
time after 12:01 A.M. (New York City time) on November 14, 2000.
3. Amendment to the Agreement. Section 1.1 of the Agreement is hereby
amended by amending the definition of "Eurodollar Rate" to read in its entirety
as follows:
"Eurodollar Rate" means, with respect to any Eurodollar Tranche
Period, a rate which is 3.50% in excess of a rate per annum equal to
the sum (rounded upwards, if necessary, to the next higher 1/100 of
1%) of the rate obtained by dividing (i) the applicable LIBOR Rate by
(ii) a percentage equal to 100% minus the reserve percentage used for
determining the maximum reserve requirement as specified in Regulation
D (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) that is applicable to the
Agent during such Eurodollar Tranche Period in respect of eurocurrency
or eurodollar funding, lending or liabilities (or, if more than one
percentage shall be so applicable, the daily average of such
percentage for those days in such Eurodollar Tranche Period during
which any such percentage shall be applicable).
4. Representations and Warranties. To induce the Company and the Bank
Investors to enter this Amendment and Waiver, each of the Transferor and the
Parent hereby represents and warrants (each as to itself) that:
(a) it has the power, authority and legal right to make and deliver
this Amendment and Waiver and to perform its obligations under the Agreement, as
amended by this Amendment and Waiver, 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 Waiver and the
performance of the Agreement, as amended by this Amendment and Waiver, 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 and Waiver, 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 Waiver and after giving effect hereto.
(d) no Termination Event or Potential Termination Event has occurred
and is continuing under the Agreement after giving effect to this Amendment and
Waiver.
5. Effectiveness. This Amendment and Waiver shall become effective as of
the date hereof, upon the receipt by the Agent of:
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(a) an executed counterpart of this Amendment and Waiver from each
party hereto;
(b) an executed counterpart of the Fee Letter dated October 20, 2000
among the Transferor, the Parent, the Company and the Agent (the "Fee Letter"),
from each party thereto; and
(c) the payment of all fees due pursuant to the Fee Letter.
6. Reference to and Effect on the Transaction Documents. 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 and
Waiver shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Company, 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 and Waiver 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 AND WAIVER 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 and Waiver 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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Andrew L. Stidd
President
KCH FUNDING, L.L.C.,
as Transferor
By: /s/ ELMER C. HULL, JR.
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Elmer C. Hull, Jr.
Treasurer
UNOVA, INC.,
as Parent and as Servicer
By: /s/ ELMER C. HULL, JR.
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Elmer C. Hull, Jr.
Vice President and Treasurer
BANK OF AMERICA, N.A., as Agent
and a Bank Investor
By: /s/ JOHN. K. SVOLOS
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John. K. Svolos
Vice President
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