Exhibit 4.7
EXECUTION COPY
AMENDMENT NO. 2 TO THE
CREDIT AGREEMENT
Dated as of June 17, 2002
AMENDMENT NO. 2 TO THE CREDIT AGREEMENT among DRESSER, INC., a
Delaware corporation (the "U.S. Borrower") and D.I. LUXEMBOURG S.A.R.L., a
corporation organized and existing under the laws of Luxembourg (the "Euro
Borrower", and, collectively with the U.S. Borrower, the "Borrowers"), DEG
ACQUISITIONS, LLC, a limited liability company organized and existing under the
laws of Delaware ("DEG Acquisitions"), the Subsidiary Guarantors party to the
Credit Agreement referred to below (the "Subsidiary Guarantors"), the banks,
financial institutions and other institutional lenders party to the Credit
Agreement referred to below (collectively, the "Lenders") XXXXXX XXXXXXX & CO.
INCORPORATED, as collateral agent (the "Collateral Agent"), XXXXXX XXXXXXX
SENIOR FUNDING, INC., as administrative agent (the "Administrative Agent") for
the Lenders and CREDIT SUISSE FIRST BOSTON ("CSFB"), as syndication agent (the
"Syndication Agent", and together with the Collateral Agent and the
Administrative Agent, the "Agents").
PRELIMINARY STATEMENTS:
(1) The Borrowers, DEG Acquisitions, the Subsidiary Guarantors, the
Lenders and the Agents have entered into a Credit Agreement dated as of April
10, 2001, as amended by Amendment No. 1 thereto dated as of March 13, 2002 (such
Credit Agreement, as amended, supplemented or otherwise modified through the
date hereof, the "Credit Agreement"). Capitalized terms not otherwise defined in
this Amendment have the same meanings as specified in the Credit Agreement.
(2) The Borrowers and the Required Lenders have agreed to amend the
Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 4, hereby amended as follows:
(a) The definitions of "Change of Control" and "Parent" in
Section 1.01 thereof are amended in full to read as follows:
"Change of Control" means the occurrence of any of the following: (a)
the Permitted Investors and their Related Parties cease to own,
directly or indirectly, more than 50% of the Voting Interests of the
U.S. Borrower, or (b) the first date during any consecutive two-year
period on which a majority of the members of the board of directors of
DEG Acquisitions are not Continuing Directors, or (c) prior to an IPO,
the Parent shall cease to own, at least 90% of the Voting Interests,
other than Excluded Voting Interests, in each of the Borrowers
(provided that the
Parent shall in no event cease to own more than 50% of the Voting
Interests in the U.S. Borrower on a fully diluted basis (such
percentage to be calculated taking into account the Excluded Voting
Interests)), or (d) after an IPO, the Parent shall cease to own more
than 50% of the Voting Interests in the U.S. Borrower.
"Parent" means (a) prior to the effectiveness (in accordance with its
terms) of Amendment No. 2 to this Agreement, dated as of June 17,
2002, the entity defined as "Parent" in the recital of parties to this
Agreement; and (b) upon and after the effectiveness (in accordance
with its terms) of Amendment No. 2 to this Agreement, dated as of June
17, 2002, Delaware Intermediate HoldCo; provided, however, that DEG
Acquisitions shall in any case remain a guarantor of all Obligations
of the Loan Parties existing under or arising in respect of the Loan
Documents.
(b) Section 1.01 thereof is further amended by inserting therein the
following definitions in appropriate alphabetical order:
"DEG Acquisitions" means DEG Acquisitions, LLC, a limited liability
company organized and existing under the laws of Delaware.
"Delaware Intermediate HoldCo" means Dresser Holdings, Inc., a
Delaware corporation.
"Parent Companies" means, collectively, (i) Delaware Intermediate
HoldCo., (ii) Dresser Holdings, Ltd., a corporation organized and
existing under the laws of Bermuda, and (iii) Dresser, Ltd., a
corporation organized and existing under the laws of Bermuda.
(c) The definition of "Net Cash Proceeds" appearing in Section 1.01
thereof is amended by inserting therein after the phrase "the sale or
issuance of any Equity Interests to any Person other than", the words "by
any Parent Company to another Parent Company or DEG Acquistions".
(d) Section 2.06(b)(ii) thereof is amended by inserting therein after
the introductory phrase "The Applicable Borrower shall, on the date of
receipt of the Net Cash Proceeds by the Parent or any of its Subsidiaries",
the parenthetical "(or by DEG Acquisitions or any of its Subsidiaries in
the case of clause (C) below)".
(e) Section 2.06(b)(ii)(C) thereof is amended in full to read as
follows:
(C) the issuance and sale by DEG Acquisitions or any of its
Subsidiaries of any Equity Interests (including, without limitation,
receipt of any capital contribution but excluding (i) any issuance of
Equity Interests of the Parent Companies or DEG Acquisitions solely
for the purpose of repaying the Senior Subordinated Notes or any other
Debt permitted by Section 5.02(b), (ii) any issuance of Equity
Interests by a Parent Company to another Parent Company or DEG
Acquisitions, by the U.S. Borrower to the Parent or by any Subsidiary
of the U.S. Borrower to the U.S. Borrower or another Subsidiary of the
U.S. Borrower, (iii) 50% of any
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Net Cash Proceeds from any issuance of Equity Interests of DEG
Acquisitions or any of its Subsidiaries pursuant to a bona fide
underwritten initial public offering if the Total Debt/EBITDA Ratio at
such time is equal to or greater than 2.00:1.00 (calculated after
giving effect to the application of the proceeds of such issuance),
(iv) 100% of any Net Cash Proceeds from any issuance of Equity
Interests of DEG Acquisitions or any of its Subsidiaries pursuant to a
bona fide underwritten initial public offering if the Total
Debt/EBITDA Ratio at such time is less than 2.00:1.00 (calculated
after giving effect to the application of the proceeds of such
issuance), and (v) any issuance of Equity Interests of DEG
Acquisitions or any of its Subsidiaries solely to finance a Permitted
Acquisition or the Pending Acquisition)
SECTION 2. Consent to the merger of U.S. Borrower into Dresser
Mergerco, Inc. Notwithstanding anything provided to the contrary in Sections
5.02(d) or 5.02(g) of the Credit Agreement, the Lenders hereby consent,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 4, to the merger of the U.S. Borrower
into Dresser Mergerco, Inc., a Delaware corporation (the "Merger"); provided
that, after giving effect to the Merger, (i) the U.S. Borrower shall be the
surviving corporation, and (ii) the U.S. Borrower shall be a wholly-owned
Subsidiary of Delaware Intermediate HoldCo.
SECTION 3. Release of Collateral consisting of Equity Interests in the
U.S. Borrower. Effective as of the date hereof and subject to the satisfaction
of the conditions precedent set forth in Section 4, the Collateral Agent shall,
at DEG Acquisitions' expense, execute and deliver to DEG Acquisitions such
documents as DEG Acquisitions shall reasonably request to evidence the release
of the lien and security interest granted by DEG Acquisitions to the Collateral
Agent, for the benefit of the Lenders, in the Equity Interests of the U.S.
Borrower owned by DEG Acquisitions.
SECTION 4. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written when, and only when, (A) the
Administrative Agent shall be satisfied with the corporate and legal structure
and capitalization of each of (i) Dresser, Ltd., a corporation organized and
existing under the laws of Bermuda, (ii) Dresser Holdings, Ltd., a corporation
organized and existing under the laws of Bermuda, (iii) Delaware Intermediate
HoldCo and (iv) Dresser Mergerco, Inc., including in each case the terms and
conditions of the charter, bylaws and other constituent documents and of each
agreement or instrument relating to such structure and capitalization, and (B)
the Administrative Agent shall have received each of the following:
(i) counterparts of this Amendment executed by the Borrowers and the
Required Lenders or, as to any of the Lenders, advice satisfactory to the
Administrative Agent that such Lender has executed this Amendment;
(ii) the consent attached hereto duly executed by each Guarantor and
each Grantor;
(iii) a Guaranty Supplement in the form of Exhibit H to the Credit
Agreement duly executed by DEG Acquisitions;
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(iv) an assumption agreement in form and substance satisfactory to
the Administrative Agent duly executed by Delaware Intermediate HoldCo with
respect to the assumption by Delaware Intermediate HoldCo of all of the
Obligations of DEG Acquisitions arising under the Loan Documents
(including, without limitation, as Guarantor or Grantor thereunder),
together with evidence that all action the Administrative Agent may deem
necessary or desirable in order to perfect and protect the first priority
lien and security interest created under the Collateral Documents in the
assets of Delaware Intermediate HoldCo have been taken;
(v) a merger agreement in form and substance satisfactory to the
Administrative Agent with respect to the Merger, duly executed by each of
the parties thereto; and
(vi) a favorable opinion of Xxxxxx & Xxxxxxx, United States counsel
for the Loan Parties, in form and substance satisfactory to the
Administrative Agent.
This Amendment is subject to the provisions of Section 9.01 of the
Credit Agreement.
SECTION 5. Representations and Warranties of the Borrower. Each
Borrower represents and warrants as follows:
(a) On the date hereof, after giving effect to this Amendment,
(i) no event has occurred and is continuing, or would result from the
effectiveness of this Amendment, that constitutes a Default and (ii) all
representations and warranties set forth in the Loan Documents shall be
true and correct in all material respects.
(b) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or
any other third party is required for the due execution, delivery or
performance by the Borrowers of this Amendment and by the Guarantors and
the Grantors of the consent attached hereto or other transactions
contemplated hereby.
(c) This Amendment has been duly executed and delivered by the
Borrowers. The consent attached hereto has been duly executed and delivered
by each of the Guarantors and the Grantors. This Amendment and each of the
other Loan Documents, as amended hereby, to which each Borrower, each
Guarantor and each Grantor is a party are legal, valid and binding
obligations of such Borrower, such Guarantor and such Grantor, as
applicable, enforceable against such Borrower, such Guarantor and such
Grantor, as applicable, in accordance with their respective terms.
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SECTION 6. Reference to and Effect on the Credit Agreement and the
Notes. (a) On and after the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the Notes and
each of the other Loan Documents to "the Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment, are and shall continue to
be in full force and effect and are hereby in all respects ratified and
confirmed. Without limiting the generality of the foregoing, the Collateral
Documents and all of the Collateral described therein do and shall continue to
secure the payment of all Obligations of the Loan Parties under the Loan
Documents, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 7. Costs, Expenses. Each Borrower agrees to pay on demand all
costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery and administration, modification and amendment
of this Amendment and the other instruments and documents to be delivered
hereunder (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent) in accordance with the terms of Section
9.04 of the Credit Agreement.
SECTION 8. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 9. Governing Law. This Amendment 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 hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
DRESSER, INC., as U.S. Borrower
By
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Name:
Title:
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D.I. LUXEMBOURG S.A.R.L.,
as Euro Borrower
By
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Name:
Title:
DEG ACQUISITIONS, LLC
By First Reserve Corporation, its
Manager
By
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Name:
Title:
By
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Name:
Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Administrative Agent
By
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Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED,
as Collateral Agent
By
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Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent
By
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Name:
Title:
By
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Name:
Title:
UBS WARBURG LLC,
as Co-Documentation Agent
By
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Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agent
By
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Name:
Title:
REVOLVING CREDIT LENDERS, TRANCHE A EURO
TERM LENDERS AND TRANCHE A U.S. TERM LENDERS
----------------------------------------
[Print Name of Financial Institution]
By
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Name:
Title:
TRANCHE B TERM LENDERS
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[Print Name of Financial Institution]
By
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Name:
Title:
ISSUING BANKS
XXXXX FARGO BANK, N.A.
By
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Name:
Title:
CREDIT SUISSE FIRST BOSTON
By
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Name:
Title:
By
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Name:
Title:
SWING LINE BANK
XXXXX FARGO BANK TEXAS, N.A.
By
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Name:
Title:
CONSENT
Dated as of June 17, 2002
Each of the undersigned as a Loan Party under the Credit Agreement
referred to in the foregoing Amendment and as Grantor under the Security
Agreement dated as of April 10, 2001 (as amended, supplemented or otherwise
modified from time to time, the "Security Agreement") in favor of the Collateral
Agent, for its benefit and the benefit of the Lenders party to the Credit
Agreement referred to in the foregoing Amendment, hereby consents to such
Amendment and hereby confirms and agrees that (a) notwithstanding the
effectiveness of such Amendment, each Loan Document is, and shall continue to
be, in full force and effect and is hereby ratified and confirmed in all
respects, except that, on and after the effectiveness of such Amendment, each
reference in each Loan Document to the "Credit Agreement", "thereunder",
"thereof" or words of like import shall mean and be a reference to the Credit
Agreement, as amended by such Amendment, and (b) the Collateral Documents to
which such Grantor is a party and all of the Collateral described therein do,
and shall continue to, secure the payment of all of the Secured Obligations (in
each case, as defined therein).
DRESSER INTERNATIONAL, INC.
By
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Name:
Title:
DRESSER RE, INC.
By
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Name:
Title:
DRESSER RUSSIA, INC.
By
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Name:
Title:
LVF HOLDING CORPORATION
By
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Name:
Title:
MODERN ACQUISITIONS, INC.
By
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Name:
Title:
