SEVENTH AMENDMENT TO CREDIT
AND GUARANTY AGREEMENT
THIS SEVENTH AMENDMENT, dated as of August 3, 1999 (this "Amendment") to
the Existing Credit Agreement referred to below, is among IMO INDUSTRIES INC., a
Delaware corporation (the "Borrower"), COLFAX CORPORATION (formerly known as II
Acquisition Corp.), a Delaware corporation (the "Parent") and the Lenders (as
defined below) parties hereto.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Parent, certain financial institutions from
time to time parties thereto (collectively, the "Lenders"), The Bank of Nova
Scotia, as the Administrative Agent and the Documentation Agent and NationsBanc
Capital Markets, Inc., as the Syndication Agent have entered into the Credit and
Guaranty Agreement, dated as of August 29, 1997 (as amended, supplemented,
amended and restated or otherwise modified prior to the date hereof, the
"Existing Credit Agreement" and, as amended by, and together with, this
Amendment, the "Credit Agreement"); and
WHEREAS, the Borrower and the Parent have requested that the Existing
Credit Agreement be amended in certain respects and that the Lenders grant a
waiver of certain provisions of the Existing Credit Agreement and the Lenders
have agreed to amend the Existing Credit Agreement and to grant such waiver
(subject to the terms and conditions of this Amendment);
NOW, THEREFORE, in consideration of the premises and the other provisions
herein contained, the parties hereto hereby agree as follows.
PART I
DEFINITIONS
SUBPART I.1. Use of Defined Terms. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment, including its preamble
and recitals, have the meanings set forth in the Existing Credit Agreement.
PART II
AMENDMENTS AND WAIVERS TO
THE EXISTING CREDIT AGREEMENT
Effective upon (and subject to) the occurrence of the Seventh Amendment
Effective Date (as defined in Subpart 3.1), certain terms and provisions of the
Existing Credit Agreement are hereby amended, and the waiver described below is
hereby granted, all in accordance with this Part. Except as so amended, modified
or waived by this Amendment, the Existing Credit Agreement and the Loan
Documents shall continue in full force and effect in accordance with their
terms.
SUBPART II.1. Amendment to Article I. Article I of the Existing Credit
Agreement is hereby amended in accordance with Subparts 2.1.1 through 2.1.2.
SUBPART II.1.1. Section 1.1 of the Existing Credit Agreement is hereby
amended by adding the following new definition in its appropriate alphabetical
sequence:
"Xxxxx Controls Disposition" means the disposition of the Borrower's
facility located at 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxx.
SUBPART II.1.2. Section 1.1 of the Existing Credit Agreement is hereby
further amended by amending the definition of "Permitted Amount" by deleting the
figure "$85,000,000" each time it appears therein and, in each case, inserting
the figure "$105,000,000" in its place.
SUBPART II.2. Amendment to Article IV. Clause (iv)(B) of Section 4.10 of
the Existing Credit Agreement is hereby amended by deleting the figure
"$85,000,000" in such clause and inserting the figure "$105,000,000" in its
place.
SUBPART II.3. Amendment to Article VII. Clause (b)(ii) of Section 7.2.6 of
the Existing Credit Agreement is hereby amended by deleting the figure
"$85,000,000" in such clause and inserting the figure "$105,000,000" in its
place.
SUBPART II.4. Waiver Regarding Section 3.1.2 of the Existing Credit
Agreement ("Mandatory Repayments and Prepayments"). Notwithstanding anything to
the contrary contained in the Existing Credit Agreement (including the
definition of the term "Net Disposition Proceeds" or Section 3.1.2 thereto), the
Lenders hereby waive any mandatory prepayment event which would otherwise arise
in connection with the receipt by the Borrower of Net Disposition Proceeds in
connection with the Xxxxx Controls Disposition.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART III.1. This Amendment shall become effective on the date (the
"Seventh Amendment Effective Date") when all of the following conditions have
been satisfied to the satisfaction of the Administrative Agent.
SUBPART III.1.1. Execution of Counterparts. The Administrative Agent
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shall have received copies of this Amendment, duly executed and delivered by the
Borrower, the Parent and the Lenders.
SUBPART III.1.2. Affirmation and Consent. The Administrative Agent
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shall have received an affirmation and consent in form and substance
satisfactory to it, duly executed and delivered by each Subsidiary Guarantor.
SUBPART III.1.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto shall be satisfactory in form and substance to the
Administrative Agent and its counsel. The Administrative Agent and its counsel
shall have received all information and such counterpart originals or such
certified or other copies of such materials, as the Administrative Agent or its
counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendment shall be satisfactory to the
Administrative Agent and its counsel.
PART IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Issuers to enter into this
Amendment, the Borrower and the Parent represent and warrant to the
Administrative Agent, each Issuer and each Lender as set forth in this Part.
SUBPART IV.1. Compliance with Warranties. After giving effect to the terms
of this Amendment, (a) the representations and warranties set forth herein, in
Article VI of the Credit Agreement and in each other Loan Document are true and
correct in all material respects with the same effect as if made on and as of
the date hereof (unless stated to relate solely to an earlier date, in which
case they were true and correct as of such earlier date) and (b) the Borrower
shall be in full compliance with Section 4.03 of the Subordinated Note
Indenture.
SUBPART IV.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower and the Parent of this Amendment and
other documents delivered pursuant hereto are within the Borrower's and the
Parent's corporate powers, have been duly authorized by all necessary corporate
action, and do not (i) contravene either the Borrower's or the Parent's Organic
Documents, (ii) contravene or result in a default under any contractual
restriction, law or governmental regulation or court decree or order binding on
or affecting either the Borrower or the Parent, or (iii) result in, or require
the creation or imposition of, any Lien (except as contemplated in or created by
the Loan Documents).
SUBPART IV.3. Validity, etc. This Amendment has been duly executed and
delivered by the Borrower and the Parent and constitutes the legal, valid and
binding obligation of the Borrower and the Parent enforceable in accordance with
its terms, subject as to enforcement to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and to
general principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity.
SUBPART IV.4. Compliance With Existing Credit Agreement. As of the
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Seventh Amendment Effective Date, both before and after giving effect to the
terms of this Amendment, no Default has occurred and is continuing.
PART V
MISCELLANEOUS PROVISIONS
SUBPART V.1. Ratification of and Limited Amendment to the Credit
Agreement. The Existing Credit Agreement, as amended hereby, is hereby ratified,
approved and confirmed in each and every respect by the parties hereto. Except
as specifically amended or modified herein, the Existing Credit Agreement and
the other Loan Documents shall continue in full force and effect in accordance
with the provisions thereof and except as expressly set forth herein the
provisions hereof shall not operate as a waiver or amendment of any right, power
or privilege of the Administrative Agent and the Lenders nor shall the entering
into of this Amendment preclude the Lenders from refusing to enter into any
further or future amendments.
SECTION V.2. Consent and Acknowledgment of Guarantor, etc. By its
signature below, the Parent in its capacity as a guarantor and as grantor of
collateral security under certain Loan Documents, hereby acknowledges, consents
and agrees to this Amendment and hereby ratifies and confirms its obligations
under its guaranty and each Loan Document executed and delivered by it in all
respects.
SUBPART V.3. Credit Agreement, References, etc. All references to the
Credit Agreement in any other document, instrument, agreement or writing shall
hereafter be deemed to refer to the Existing Credit Agreement as amended hereby.
As used in the Credit Agreement, the terms "Agreement", "herein", "hereinafter",
"hereunder", "hereto" and words of similar import shall mean, from and after the
date hereof, the Existing Credit Agreement as amended by this Amendment.
SUBPART V.4. Expenses. The Borrower agrees to pay all out-of-pocket
expenses incurred by the Administrative Agent (including fees and expenses of
counsel to the Administrative Agent) in connection with the preparation,
negotiation, execution and delivery of this Amendment.
SUBPART V.5. Headings; Counterparts. The various headings of this
Amendment are inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment or any provisions hereof. This Amendment may be
signed in any number of separate counterparts, each of which shall be an
original, and all of which taken together shall constitute one instrument.
SUBPART V.6. Governing Law; Entire Agreement. THIS AMENDMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK. This Amendment constitutes the entire understanding among the parties
hereto with respect to the subject matter hereof and supersedes any prior
agreements, written or oral, with respect thereto.
SUBPART V.7. Loan Document Pursuant to Credit Agreement. This Amendment is
a Loan. Document executed pursuant to the Credit Agreement and shall be
construed, administered and applied in accordance with all of the terms and
provisions of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
