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EXHIBIT 10.1(e)
FIFTH AMENDMENT DATED
AS OF DECEMBER 22, 1995
TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT DATED AS OF JANUARY 29, 1993
THIS FIFTH AMENDMENT, dated as of December 22, 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, that certain
Second Amendment dated as of October 24, 1994, that certain Third Amendment
dated as of February 28, 1995, and that certain Fourth Amendment dated as of
November 1, 1995 (as amended, supplemented, restated or otherwise modified and
in effect from time to time, the "Credit Agreement").
B. Dunja Verwaltungsgesellschaft mbH, a German corporation ("Dunja"), is a
wholly-owned subsidiary of Xxxx Products, Inc., a Pennsylvania corporation
("Xxxx").
X. Xxxx is a wholly-owned subsidiary of Borrower.
D. On September 29, 1995, Dunja acquired all the outstanding capital stock
of Lukas Hydraulik GmbH, a German corporation.
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 a guarantee executed by Dunja, a German corporation, in favor of the
Agent for the benefit of the Banks.
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.
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2. AMENDMENTS AND WAIVERS TO THE CREDIT AGREEMENT.
2.1 Section 10.1 of the Credit Agreement.
(a) The definition of "Acquired Subsidiaries" is hereby amended to include
Dunja and all references in the Credit Agreement to Acquired Subsidiaries shall
include a reference to Dunja; provided, however, in Section 6.4 of the Credit
Agreement, "Acquired Subsidiaries" shall not include Dunja 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 Dunja in favor of the Agent dated as of December 22, 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.
2.2 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:
Dunja Verwaltugsgesellschaft mbH Germany 100%
3. WARRANTIES. To induce the Agent and the Banks to enter into this Fifth
Amendment, the Borrower warrants that:
3.1. Authorization. The Borrower is duly authorized to execute and
deliver this Fifth Amendment 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 Fifth 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.
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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 Fifth Amendment and related documents and
(B) 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 Fifth 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 Fifth Amendment and
all other documents or certificates to be delivered hereunder, together
with the true signatures of such officers.
(c) Opinion. An opinion of (i) Xxxxxx & Xxxxxxx, special counsel to
the Borrower, and (ii) Doser Amereller Xxxxx, special counsel to Dunja,
each addressed to the Agent and the Banks, reasonably acceptable to the
Agent and in substantially the form of Exhibit B and B-1 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.
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.
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 Fifth Amendment and any document required to be furnished
therewith.
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5.2. Governing Law. This Fifth 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 Fifth 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 Fifth 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
Fifth 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.
5.5. References to the Credit Agreement. Upon the effectiveness of this
Fifth 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 Fifth Amendment shall become effective as of
the date first written above upon the execution and delivery of counterparts of
this Fifth Amendment by each of the Banks, the Guarantors and the Borrower.
5.7. Counterparts. This Fifth 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 Fifth 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
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Title: Senior Vice President - Finance
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PERCENTAGE OF
TOTAL COMMITMENT
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22.5% BANK OF AMERICA ILLINOIS
(f/k/a CONTINENTAL BANK N.A.),
as a Bank
By: Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Senior Vice President
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BANK OF AMERICA ILLINOIS
(f/k/a CONTINENTAL BANK N.A.),
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 Xxxxxx
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Name: Xxxxxxxxx Xxxxxx
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Title: Vice President and Branch Manager
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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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The undersigned hereby acknowledge and consent to this Fifth Amendment,
and agree that the Guaranty Agreement, as amended, shall remain in full force
and effect and is hereby ratified and confirmed this ____ day of December,
1995.
BAND-IT-IDEX, INC.
VIKING PUMP, INC.
VIBRATECH, INC.
XXXXXX XXXX, INC.
LUBRIQUIP, INC.
XXXXXX, INC.
STRIPPIT, INC.
PULSAFEEDER, INC.
MICROPUMP, INC. (f/k/a MC Acquisition Corp.)
XXXX PRODUCTS, INC.
DUNJA VERWALTUNGSGESELLSCHAFT MBH
By: XXXXX X. XXXXXXXXX
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Name: XXXXX X. XXXXXXXXX
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Title: VICE PRESIDENT & C.F.O.
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