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EXHIBIT 10.1(d)
FOURTH AMENDMENT DATED
AS OF NOVEMBER 1, 1995
TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT DATED AS OF JANUARY 29, 1993
THIS FOURTH AMENDMENT, dated as of November 1, 1995, is entered into by
and among IDEX CORPORATION, a Delaware corporation (the "Borrower"), the
banking institutions (the "Banks") signatory to the hereinafter defined Credit
Agreement and BANK OF AMERICA ILLINOIS (f/k/a CONTINENTAL BANK N.A.)("Bank of
America"), individually and as agent for the Banks (in such capacity, the
"Agent").
RECITALS:
A. The Borrower, the Banks and the Agent have entered into that certain
Second Amended and Restated Credit Agreement dated as of January 29, 1993, as
amended by that certain First Amendment dated as of May 23, 1994 to Second
Amended and Restated Credit Agreement, that certain Second Amendment dated as
of October 24, 1994 to Second Amended and Restated Credit Agreement, and that
certain Third Amendment dated as of February 28, 1995 to Second Amended and
Restated Credit Agreement (as amended, supplemented, restated or otherwise
modified and in effect from time to time, the "Credit Agreement").
B. Pursuant to that certain Asset Purchase Agreement (the "Asset Purchase
Agreement") dated as of April 26, 1995 among Micropump Corporation, a
California corporation ("Seller"), the Borrower and Xxxxx Xxxx, the Borrower
purchased all right, title and interest of Seller in and to all of the assets
of Seller, subject to the terms and conditions therein.
C. Pursuant to that certain Assignment and Assumption Agreement dated as
of April 28, 1995 between the Borrower and MC Acquisition Corp., a Delaware
corporation ("Acquisition Corp."), the Borrower granted, bargained, sold,
conveyed, transferred, assigned, set over and delivered to Acquisition Corp.
all of the Borrower's rights, title and interest in and to, the Asset Purchase
Agreement (subject to the limitations set forth therein).
D. Acquisition Corp. subsequently changed its name to "Micropump, Inc,"
("Micropump").
E. Pursuant to Section 7.2.10(d) of the Credit Agreement by and among the
Borrower, the Banks and the Agent, the Borrower is required to deliver to the
Agent (i) guarantees executed by Micropump in favor of the Agent for the
benefit of the Banks, (ii) stock certificates evidencing all issued and
outstanding shares of stock of Micropump along with stock powers therefor
executed in blank and (iii) an intercompany note, endorsed in blank by the
Borrower, executed by Micropump in favor of the Borrower, evidencing any loan
from the Borrower to Micropump, the proceeds of which were applied to the costs
and expenses of the acquisition of the assets of Seller.
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F. The Borrower, the Banks and the Agent wish to amend or waive certain
provisions of the Credit Agreement.
G. Therefore, in consideration of the premises herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Terms defined in the Credit Agreement and not otherwise
defined herein shall be used herein as defined in the Credit Agreement.
2. AMENDMENTS AND WAIVERS TO THE CREDIT AGREEMENT.
2.1 Section 1.2(b) of the Credit Agreement. Section 1.2(b) of the
Credit Agreement is hereby amended by deleting the reference to "December 31,
1995 - $15,000,000" in its entirety.
2.2 Section 10.1 of the Credit Agreement.
(a) The definition of "Acquired Subsidiaries" is hereby amended
to include Micropump and all references in the Credit Agreement to
Acquired Subsidiaries shall include a reference to Micropump; provided,
however, in Section 6.4 of the Credit Agreement, "Acquired Subsidiaries" shall
not include Micropump when making representations with respect to the financial
statements described in clauses (a)(i) and (a)(ii) and in subsection (b) of
such Section 6.4.
(b) The definition of "Guaranty Agreement" shall include the
Guaranty Agreement made by Micropump in favor of the Agent dated as of November
1, 1995 (which agreements shall each be substantially in the form of the
Guaranty Agreement attached as Exhibit A hereto) as each such agreement may be
amended, supplemented, restated or otherwise modified from time to time.
2.3 Exhibit A to the Credit Agreement. Exhibit A to the Credit
Agreement is hereby amended by deleting it in its entirety and inserting in
lieu thereof a new Exhibit A, which is attached hereto as Annex I.
2.4 Exhibit I to the Credit Agreement. Item 3 of Exhibit I to the
Credit Agreement is hereby amended by adding the following at the end of the
chart:
Micropump, Inc. Delaware 100%
3. WARRANTIES. To induce the Agent and the Banks to enter into this Fourth
Amendment, the Borrower warrants that:
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3.1. Authorization. The Borrower is duly authorized to execute and
deliver this Fourth Amendment and to pledge the Micropump Shares and the
Micropump Intercompany Note (as each is hereinafter defined) and is and will
continue to be duly authorized to borrow monies under the Credit Agreement, as
amended hereby, and to perform its obligations under the Credit Agreement, as
amended hereby.
3.2. No Conflicts. The execution and delivery of this Fourth Amendment
and the performance by the Borrower of its obligations under the Credit
Agreement, as amended hereby, do not and will not conflict with any provision
of law or of the charter or by-laws of the Borrower or any Subsidiary or of any
agreement binding upon the Borrower or any Subsidiary.
3.3. Validity and Binding Effect. The Credit Agreement, as amended
hereby, is a legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable remedies.
4. CONDITIONS PRECEDENT TO AMENDMENTS. The amendments contemplated by
Section 2 hereof are subject to the satisfaction of each of the following
conditions precedent:
4.1. Documentation. The Borrower shall have delivered to the Agent
all of the following, each duly executed and dated the date hereof, in form
and substance satisfactory to the Agent:
(a) Borrower Resolutions. Copies for each Bank duly certified
by the secretary or an assistant secretary of the Borrower, of (i)
resolutions of the Borrower's Board of Directors authorizing (A) the
execution and delivery of this Fourth Amendment and related documents,
(B) the pledge of the Micropump Shares and the Micropump Intercompany
Note and (C) the borrowings under the Credit Agreement, as amended
hereby, (ii) all documents evidencing other necessary corporate action,
and (iii) all approvals or consents, if any, with respect to this Fourth
Amendment.
(b) Incumbency Certificate. Certificates for each Bank of the
secretary or an assistant secretary of the Borrower certifying the names
of the Borrower's officers authorized to sign this Fourth Amendment and
all other documents or certificates to be delivered hereunder, together
with the true signatures of such officers.
(c) Opinion. An opinion of Xxxxxx & Xxxxxxx, special counsel
to the Borrower, addressed to the Agent and the Banks, reasonably
acceptable to the Agent and in substantially the form of Exhibit B hereto.
(d) Certificate. A certificate of an Authorized Officer of the
Borrower as to the matters set out in Sections 4.2 and 4.3 hereof.
(e) Other. Such other documents as the Agent may reasonably
request.
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4.2. No Default. As of the date hereof, no Default shall have
occurred and be continuing.
4.3. Warranties. As of the date hereof, the warranties in Article VI
of the Credit Agreement and in Section 3 of this Fourth Amendment shall be true
and correct as though made on such date, except for such changes as are
specifically permitted under the Credit Agreement.
4.4 Micropump Intercompany Note. The Borrower agrees that Micropump
will issue a subsidiary note, such note to be substantially in the form of
Exhibit C hereto (the "Micropump Intercompany Note") evidencing the loan made
by the Borrower to Micropump to consummate the purchase of all of the assets of
Seller pursuant to the Asset Purchase Agreement (subject to the limitations set
forth therein).
4.5 Pledge of Shares and Intercompany Note. Concurrently with the
delivery of this Fourth Amendment, the Borrower will pledge to the Agent (i)
all of the outstanding shares of Micropump (the "Micropump Shares") held by the
Borrower and (ii) the Micropump Intercompany Note. The Micropump Shares shall
be "Pledged Subsidiary Shares" under the Senior Pledge Agreement, the Micropump
Intercompany Note shall be a "Pledged Subsidiary Note" under the Senior Pledge
Agreement, and the Micropump Shares and the Micropump Intercompany Note shall
each be "Pledged Property" under the Senior Pledge Agreement.
5. GENERAL.
5.1. Expenses. The Borrower agrees to pay the Agent, upon demand,
for all reasonable expenses, including reasonable attorneys' and legal
assistants' fees incurred by the Agent in connection with the preparation,
negotiation and execution of this Fourth Amendment and any document required to
be furnished therewith and the pledge and delivery of the Micropump Shares and
the Micropump Intercompany Note.
5.2. Governing Law. This Fourth Amendment shall be deemed to be a
contract made under and governed by the internal laws of the State of Illinois.
For purposes of any action or proceeding involving this Fourth Amendment, the
Borrower hereby expressly submits to the jurisdiction of all federal and state
courts located in the State of Illinois and consents that it may be served with
any process or paper by registered mail or by personal service within or
without the State of Illinois, provided a reasonable time for appearance is
allowed.
5.3. Successors. This Fourth Amendment shall be binding upon the
Borrower, the Agent and the Banks and their respective successors and assigns,
and shall inure to the benefit of the Borrower, the Agent and the Banks and
their successors and assigns.
5.4. Documents Remain in Effect. Except as amended and modified by
this Fourth Amendment, the Credit Agreement and the other Instruments executed
pursuant to the Credit Agreement remain in full force and effect and the
Borrower hereby ratifies, adopts and confirms its representations, warranties,
agreements and covenants contained in, and obligations and liabilities under,
the Credit Agreement and the other Instruments executed pursuant to the Credit
Agreement.
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5.5. References to the Credit Agreement. Upon the effectiveness of
this Fourth Amendment, each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof," or words of like import, and each reference
to the Credit Agreement in any and all instruments or documents provided for in
the Credit Agreement or delivered or to be delivered thereunder or in connection
therewith, shall, except where the context otherwise requires, be deemed a
reference to the Credit Agreement, as amended hereby.
5.6. Effective Date. This Fourth Amendment shall become effective as
of the date first written above upon the execution and delivery of counterparts
of this Fourth Amendment by each of the Banks, the Guarantors and the Borrower.
5.7. Counterparts. This Fourth Amendment may be executed in any
number of counterparts, and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute one and the
same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment
to be executed and delivered at Chicago, Illinois by their respective officers
thereunto duly authorized as of the date first written above.
IDEX CORPORATION,
a Delaware corporation
By: Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President - Finance
PERCENTAGE OF
TOTAL COMMITMENT
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22.5% BANK OF AMERICA ILLINOIS
(f/k/a CONTINENTAL BANK N.A.),
as a Bank and as Agent
By: Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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10.0% BANK OF SCOTLAND
By: Xxxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxxx
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Title: Vice President
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20.0% NATIONAL CITY BANK
By: Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title:Vice President
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20.0% PNC BANK, NATIONAL ASSOCIATION
(f/k/a Pittsburgh National Bank)
By: Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Commercial Banking Officer
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12.5% UNION BANK
By: Xxx Xxxxxxx-Xxxx
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Name: Xxx Xxxxxxx - Xxxx
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Title: Vice President and District Manager
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15.0% UNITED STATES NATIONAL BANK OF OREGON
By: Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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ANNEX I
TO THE FOURTH AMENDMENT
EXHIBIT A
Principal Amount of
Subsidiary Intercompany Note
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Band-It-IDEX, Inc. $18,411,086
Vibratech, Inc. $11,506,929
Lubriquip, Inc. $27,599,999
Strippit, Inc. $15,342,572
Viking Pump, Inc. $38,356,430
Xxxxxx Xxxx, Inc. $30,685,144
Xxxxxx, Inc. $11,000,000
Pulsafeeder, Inc. $56,000,000
Xxxx Products, Inc. $70,000,000
Micropump, Inc. $22,000,000
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