SECOND AMENDMENT TO CREDIT
AND GUARANTY AGREEMENT
SECOND AMENDMENT TO CREDIT AND GUARANTY AGREEMENT, dated as of December 2,
1997 (this "Second Amendment"), among IMO INDUSTRIES INC., a Delaware
corporation (the "Borrower"), II ACQUISITION CORP., a Delaware corporation (the
"Parent") as a guarantor, VHC INC., as a guarantor, XXXXXX PUMPS INC., as a
guarantor (VHC Inc. and Xxxxxx Pumps Inc., collectively, the "Guarantors"), the
various financial institutions parties hereto (collectively, the "Lenders") and
THE BANK OF NOVA SCOTIA ("Scotiabank"), as administrative agent (in such
capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Parent, the Lenders, the Administrative Agent
and NATIONSBANC CAPITAL MARKETS, INC. ("NationsBanc"), as syndication agent for
the Lenders have heretofore entered into a certain Credit and Guaranty
Agreement, dated as of August 29, 1997 (as heretofor amended, supplemented or
otherwise modified, the "Existing Credit Agreement" and, as amended by, and
together with, this Second Amendment, the "Credit Agreement"); and
WHEREAS, the Borrower, the Parent and the Lenders desire to amend the
Existing Credit Agreement to modify certain provisions thereto;
NOW, THEREFORE, in consideration of the premises and the other provisions
herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION I.1. Use of Defined Terms. Unless otherwise defined herein or the
context otherwise requires, terms used in this Second Amendment, including its
preamble and recitals, have the respective meanings provided therefor in the
Credit Agreement.
ARTICLE II
AMENDMENT TO CERTAIN PROVISIONS OF
THE CREDIT AGREEMENT
Subject to receipt by the Administrative Agent of counterparts of this
Second Amendment duly executed by the Borrower, the Parent, the Guarantors and
the Required Lenders, certain terms and provisions of the Existing Credit
Agreement are hereby modified and amended in accordance with this Article II.
Except as so amended, the Existing Credit Agreement shall continue in full force
and effect in accordance with its terms.
SECTION II.1. Amendment to Section 4.10(iv) ("Use of Proceeds"). The
phrase "open market purchases in an amount up to $25,000,000" contained in
Section 4.10(iv) ("Use of Proceeds") of the Existing Credit Agreement is hereby
amended and replaced by the phrase "open market purchases in an amount up to
$40,000,000".
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to enter into
this Second Amendment, the Borrower, the Parent and the Guarantors jointly and
severally represent and warrant unto the Administrative Agent, each Issuer and
each Lender as set forth in this Article III.
SECTION III.1. Compliance with Warranties. The representations and
warranties set forth herein, in Article VI of the Credit Agreement and in each
other Loan Document delivered in connection herewith or therewith 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).
SECTION III.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower, the Parent and the Guarantors of this
Second Amendment are within the Borrower's, the Parent's and the Guarantors'
corporate powers, have been duly authorized by all necessary corporate action,
and do not (i) contravene either the Borrower's, the Parent's or the Guarantors'
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, the Parent or the Guarantors, or (iii) result
in, or require the creation or imposition of, any Lien (except as contemplated
in or created by the Loan Documents).
SECTION III.3. Validity, etc. This Second Amendment has been duly executed
and delivered by the Borrower, the Parent and the Guarantors and constitutes the
legal, valid and binding obligation of the Borrower, the Parent and the
Guarantors 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.
SECTION III.4. Compliance With Existing Credit Agreement. As of the
execution and delivery of this Second Amendment and as of the date hereof, each
of the Borrower, the Parent, the Guarantors and each other Obligor, if any, is
in compliance with all the terms and conditions of the Existing Credit Agreement
and the other Loan Documents to be observed or performed by it, and no Default
has occurred and is continuing.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION IV.1. Ratification of and Limited Amendment to the Credit
Agreement. This Second Amendment shall be deemed to be an amendment to the
Existing Credit Agreement, and the Existing Credit Agreement, as amended hereby,
is hereby ratified, approved and confirmed in each and every respect. Except as
specifically amended or modified herein, the Existing Credit Agreement 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 of or amendment of any right, power or privilege of the Administrative
Agent and the Lenders nor shall the entering into of this Second Amendment
preclude the Lenders from refusing to enter into any further or future
amendments. This Second Amendment shall be deemed to be a "Loan Document" for
all purposes of the Credit Agreement.
SECTION IV.2. Consent and Acknowledgment of Guarantors. By their
signatures below, each of the Parent, VHC Inc. and Xxxxxx Pumps Inc., in their
capacity as a guarantor and as a grantor of collateral security under a Loan
Document, hereby acknowledges, consents and agrees to this Second Amendment and
hereby ratifies and confirms its obligations as a guarantor under each Loan
Document executed and delivered by it in all respects.
SECTION IV.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 Second Amendment.
SECTION IV.4. Expenses. The Borrower agrees to pay all out-of-pocket
expenses incurred by the Administrative Agent in connection with the
preparation, negotiation, execution and delivery of this Second Amendment.
SECTION IV.5. Headings; Counterparts. The various headings of this Second
Amendment are inserted for convenience only and shall not affect the meaning or
interpretation of this Second Amendment or any provisions hereof. This Second
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.
SECTION IV.6. Governing Law; Entire Agreement. THIS SECOND AMENDMENT SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK. This Second 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. This Second Amendment
and the provisions contained herein may be modified only by an instrument in
writing executed by the Borrower, the Administrative Agent and the Required
Lenders.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
IMO INDUSTRIES INC.
as Borrower
By: Xxxx X. xxxxx
Title: Vice President
II ACQUISITION CORP.
as a Guarantor
By: Xxxx X. Xxxxx
Title: Vice President
VHC INC.
as a Guarantor
By: Xxxx X. Xxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
as Administrative Agent
By: Xxxxx X. Xxxxxxx
Title: Senior Relationship Manager
LENDERS:
THE BANK OF NOVA SCOTIA
By: Xxxxx X. Xxxxxxx
Title:Senior Relationship Manager
NATIONSBANK, N.A.
By: Xxxxxxxxxxxx X. Swamidasan
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: Xxx X. Xxxxxxx
Title: Vice President
FLEET CAPITAL CORPORATION
By: Xxxxxx X. Xxxxxxxx
Title:Senior Vice President
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE
By: Xxxxx X'Xxxxx
Title:Vice President
By: Xxxx Xxxxxxx
Title:First Vice President
CRESTAR BANK
By: Xxxxxxxxxxx X. Xxxxxx
Title:Vice President
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: Xxxxxxxx Xxxxxxx
Title:Vice President
By: Xxxxxxx Xxxxx
Title:Assistant Treasurer
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: Xxxxx Xxxxxxxx
Title:Senior Vice President
USTRUST
By: Xxxxxx X. Xxxxxx
Title:Vice President
