Exhibit 10.1
CONFORMED COPY
FIRST AMENDMENT
FIRST AMENDMENT, dated as of December 10, 2004, (this
"Amendment"), to the Seventh Amended and Restated Credit Agreement, dated
as of October 6, 1998, as amended and restated as of February 12, 2004 (as
so amended and restated, the "Credit Agreement"), among SPX Corporation, a
Delaware corporation (the "Parent Borrower"), the Foreign Subsidiary
Borrowers party thereto (together with the Parent Borrower, the
"Borrowers"), the several banks and other financial institutions or
entities parties thereto (the "Lenders"), The Bank of Nova Scotia, as
syndication agent, Bank of America, N.A., Bank One, NA and Wachovia Bank
N.A., as documentation agents, and JPMorgan Chase Bank, N.A. (formerly
known as JPMorgan Chase Bank), as administrative agent for the Lenders (in
such capacity, the "Administrative Agent").
W I T N E S S E T H
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make, and have made, certain loans and other extensions of credit
to the Borrowers; and
WHEREAS, the Parent Borrower has requested, and, upon this
Amendment becoming effective, the Lenders have agreed, that certain
provisions of the Credit Agreement be amended in the manner provided for in
this Amendment.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit
Agreement.
SECTION 2. Amendments to Section 1.1 of the Credit Agreement. (a)
The definition of "Applicable Rate" set forth in Section 1.1 of the Credit
Agreement is hereby amended by (i) inserting immediately below the grid
entitled "Applicable Rates for Revolving Loans, Swingline Loans and Tranche
A Term Loans; Commitment Fee Rate" the following proviso applicable to such
grid:
; provided that if the Facilities are rated Ba3 or lower by
Xxxxx'x or BB+ or lower by S&P, each of the Applicable Rates for
Eurocurrency Loans and ABR Loans set forth in the preceding grid
shall be increased by 0.25% (it being understood and agreed that
such ratings shall not affect the foregoing Commitment Fee
Rates).
and (ii) deleting therefrom the grid appearing immediately below the
caption "Applicable Rates for Tranche B-1 Term Loans" and substituting in
lieu thereof the following grid:
---------------------------------- ------------------------------------- -----------------------------
Applicable Rate Applicable Rate
Consolidated Leverage Ratio for Eurocurrency Loans that are for ABR Loans that are
Tranche B-1 Term Loans Tranche B-1 Term Loans
---------------------------------- ------------------------------------- -----------------------------
Greater than or equal to 2.25% 1.25%
3.00 to 1.0
OR
Ratings are Ba3 or lower
by Xxxxx'x
OR
Ratings are BB+ or lower
by S&P
---------------------------------- ------------------------------------- -----------------------------
Greater than or equal to 2.00% 1.00%
2.00 to 1.0 and less than
3.00 to 1.0
---------------------------------- ------------------------------------- -----------------------------
Less than 2.00 to 1.0 2.00%(3) 1.00%(3)
OR
Ratings are Ba1 or better
by Xxxxx'x and BBB-
or better by S&P(3)
---------------------------------- ------------------------------------- -----------------------------
Less than 2.00 to 1.0 1.75%(4) 0.75%(4)
OR
Ratings are Ba1 or better
by Xxxxx'x and BBB- or
better by S&P(4)
---------------------------------- ------------------------------------- -----------------------------
(b) The definition of "Consolidated Total Debt" set forth in
Section 1.1 of the Credit Agreement is hereby amended by inserting the
following proviso immediately before the word "plus" therein:
, provided that, for purposes of Section 6.8(e), "Consolidated
Total Debt" shall be calculated without netting such cash and
cash equivalents,
(c) Section 1.1 of the Credit Agreement is hereby amended by
inserting, in proper alphabetical order, the following new defined terms
and related definitions:
"First Amendment": the First Amendment, dated as of December 10,
2004, to this Agreement.
"First Amendment Effective Date": the date on which the
conditions precedent set forth in Section 10 of the First
Amendment shall be satisfied, which date is December 22, 2004.
SECTION 3. Amendment to Section 2.11(b) of the Credit Agreement.
Section 2.11(b) of the Credit Agreement is hereby amended in its entirety
to read as follows:
(b) If on any date any Net Proceeds are received by or on behalf
of the Parent Borrower or any Subsidiary in respect of any Prepayment
Event, the Parent Borrower shall, within ten Business Days after such
Net Proceeds are received, prepay Term Loan Borrowings in an amount
equal to the aggregate amount of such Net Proceeds; provided that:
(i) in the case of any event described in clause (a) or (b)
of the definition of the term Prepayment Event, if the Parent
Borrower shall deliver to the Administrative Agent a certificate
of a Financial Officer to the effect that the Parent Borrower and
the Subsidiaries intend to apply the Net Proceeds from such event
("Reinvestment Net Proceeds"), within 360 days after receipt of
such Net Proceeds, to make Permitted Acquisitions or Investments
permitted by Section 6.5 or acquire real property, equipment or
other assets to be used in the business of the Parent Borrower
and the Subsidiaries, and certifying that no Default or Event of
Default has occurred and is continuing, then no prepayment shall
be required pursuant to this paragraph (b) in respect of such
event except to the extent of any Net Proceeds therefrom that
have not been so applied by the end of such 360-day period, at
which time a prepayment shall be required in an amount equal to
the Net Proceeds that have not been so applied; provided, that,
notwithstanding the foregoing, in the case of any event described
in clause (A) or (B) below, the Parent Borrower shall, within ten
Business Days after receipt of the Net Proceeds (or portion
thereof specified in such clauses) in respect of such event,
prepay Term Loan Borrowings in an amount equal to such Net
Proceeds (or specified portion thereof), and such Net Proceeds
may not be treated as Reinvestment Net Proceeds:
(A) if, on any date during any fiscal year of the
Parent Borrower, the aggregate gross proceeds (inclusive of
amounts of the type described in the first parenthetical of
Section 6.6(d) but exclusive of the $1,000,000,000 of Net
Proceeds referred to in the proviso below) from Dispositions
pursuant to Section 6.6(d) received during such fiscal year
exceed 10% of Total Consolidated Assets, then, from and
after such date, any Net Proceeds from each subsequent
Prepayment Event occurring during such fiscal year resulting
from Dispositions pursuant to Section 6.6(d) (and a ratable
amount of Net Proceeds from any such Prepayment Event from
Dispositions pursuant to Section 6.6(d) that first causes
the aforementioned 10% threshold to be exceeded, which
ratable amount shall be determined by reference to a
fraction, the numerator of which shall be the portion of the
gross proceeds from such Prepayment Event representing the
excess above such 10% threshold and the denominator of which
shall be the aggregate gross proceeds from such Prepayment
Event) shall be applied by the Parent Borrower to prepay
Term Loan Borrowings, provided that no prepayment shall be
required pursuant to this clause (A) in respect of any
portion of the up to $1,000,000,000 of the Net Proceeds that
have been excluded from the prepayment and reinvestment
requirements of this paragraph (b) by the Parent Borrower as
provided in clause (ii) below; and
(B) if, on any date, any Net Proceeds are received by
or on behalf of the Parent Borrower or any Subsidiary in
respect of any Disposition described in Section 6.6(f), the
Parent Borrower shall apply the first $150,000,000 of Net
Proceeds from all such Dispositions, in the aggregate, to
prepay Term Loan Borrowings to the extent required by clause
(iii) below.
(ii) the Parent Borrower may, at its option from time to
time after the First Amendment Effective Date upon one or more
written notices to the Administrative Agent, exclude up to an
aggregate of $1,000,000,000 of Net Proceeds from Dispositions
described in Section 6.6(d), from the prepayment requirements of
this paragraph (b) and from the reinvestment provision in the
foregoing clause (i); and
(iii) (A) the Parent Borrower shall (except as provided in
the next succeeding sentence), within ten Business Days after
receipt of any Net Proceeds by or on behalf of the Parent
Borrower or any Subsidiary in respect of any Disposition
described in Section 6.6(f), prepay Term Loan Borrowings in an
amount equal to the first $150,000,000 of such Net Proceeds (and
such amount may not be reinvested pursuant to the reinvestment
provision in the foregoing clause (i)), and (B) in the case of
any Net Proceeds from Dispositions described in Section 6.6(f),
after the first $150,000,000 of such Net Proceeds have been
applied to prepay Term Loan Borrowings in accordance with the
foregoing clause (iii) (A) of this paragraph (b) (or credit for
such application shall have been given as provided in the next
succeeding sentence), no prepayment or reinvestment shall be
required pursuant to this paragraph (b) in respect of such
Dispositions described in Section 6.6(f). Notwithstanding the
foregoing, in the event that, during the period commencing on the
First Amendment Effective Date and ending on the date of
consummation of any Disposition described by Section 6.6(f), the
Parent Borrower makes any optional prepayments of Term Loan
Borrowings and, from time to time by one or more written notices
to the Administrative Agent, directs that any such optional
prepayment be allocated to Term Loan Borrowings in accordance
with the first sentence of Section 2.12(b) and the second
sentence of Section 2.12(c) (as amended by the First Amendment)
as if such prepayment were a mandatory prepayment, then the
amount of such optional prepayment shall be credited against the
mandatory prepayment in respect of such Disposition that would
otherwise be required by this paragraph (b), it being agreed that
once so credited, such optional prepayment amount may not be
credited against any other mandatory prepayment required by this
paragraph (b) and not more than $150,000,000 in the aggregate of
optional prepayments may be credited against mandatory
prepayments otherwise required by this paragraph (b).
SECTION 4. Amendment to Section 2.12(c) of the Credit Agreement.
Section 2.12(c) of the Credit Agreement is hereby amended by deleting the
"." at the end of the second sentence thereof and inserting in lieu thereof
the following proviso:
; provided that, in the case of any mandatory prepayment in respect of
a Disposition described in Section 6.6(f) that is allocated to the
Tranche A Term Loan Borrowings or the Tranche B-1 Term Loan
Borrowings, such prepayment may, at the option of the Parent Borrower
upon written notice to the Administrative Agent, be applied to the
remaining installments thereof in direct order of maturity.
SECTION 5. Amendment to Section 5.11(a) of the Credit Agreement.
Section 5.11(a) of the Credit Agreement is hereby amended by deleting the
term "Foreign Subsidiary" in each place it appears therein and substituting
in lieu thereof the following: "Foreign Subsidiary (or a Subsidiary
thereof)".
SECTION 6. Amendments to Section 6.5 of the Credit Agreement.
Section 6.5 of the Credit Agreement is hereby amended by (a) deleting from
paragraph (b) thereof the term "Amendment/Restatement Effective Date" and
substituting in lieu thereof the following: "First Amendment Effective
Date" and (b) deleting from paragraph (c) thereof the phrase "Investments
by Loan Parties" and substituting in lieu thereof the following:
"Investments made by Loan Parties after the First Amendment Effective
Date".
SECTION 7. Amendments to Section 6.6 of the Credit Agreement.
Section 6.6 of the Credit Agreement is hereby amended by (a) deleting the
word "and" at the end of paragraph (d) thereof, (b) deleting the "." at the
end of paragraph (e) thereof and substituting "; and" in lieu thereof and
(c) inserting the following new paragraph (f) immediately after paragraph
(e) thereof:
(f) Dispositions of (i) the BOMAG group companies engaged in the
business of the design, manufacture and sale of heavy and light
equipment for soil, asphalt and refuse compaction; the sale of
compaction measurement and documentation systems; the related spare
parts and service business; and the design, manufacture and sale of
machinery for the recycling and stabilization of road beds under
repair, pursuant to the International Share Sale Agreement, dated
October 28, 2004, as the same may be amended, supplemented, waived or
otherwise modified from time to time (except to the extent that any
such amendments, supplements, waivers or modifications have the effect
of adding to the assets that are subject thereto), between BOMAG
Holding GmbH, BOMAG U.L.M. GmbH, Radiodetection Limited, as sellers,
and FAYAT SA, as purchaser, and the Parent Borrower, as a guarantor of
the sellers; and (ii) the business of providing fire detection,
suppression, notification, communication, signaling and other related
building life-safety systems, components and services to
non-residential facilities; electronic access control and
identification card systems; carbon dioxide sensors; and nurse call
and educational sound systems, pursuant to the Purchase and Sale
Agreement, dated as of November 15, 2004, as the same may be amended,
supplemented, waived or otherwise modified from time to time (except
to the extent that any such amendments, supplements, waivers or
modifications have the effect of adding to the assets that are subject
thereto), by and among the Parent Borrower, Xxxxxxx Systems
Technology, Inc., General Electric Company, and others; provided that
all Dispositions permitted by this paragraph (f) shall be made for
fair value and for at least 75% cash consideration.
SECTION 8. Amendments to Section 6.8 of the Credit Agreement. (a)
Section 6.8(e) of the Credit Agreement is hereby amended in its entirety to
read as follows:
(e) (i) from and after the Sixth Amendment/Restatement Effective
Date and prior to the First Amendment Effective Date, the Parent
Borrower may repurchase its Capital Stock in transactions permitted by
Section 6.8(e) of the Credit Agreement as in effect immediately prior
to the First Amendment Effective Date and (ii) from and after the
First Amendment Effective Date, the Parent Borrower may repurchase its
Capital Stock, provided that if the Consolidated Leverage Ratio, on a
pro forma basis immediately after giving effect to such repurchase
(with the reference period for Consolidated EBITDA being the most
recent period of four consecutive fiscal quarters for which the
relevant financial information is available and with Consolidated
Total Debt being calculated without netting cash and cash equivalents)
is
(A) greater than or equal to 2.50 to 1.00, the aggregate
amount of such repurchases pursuant to this Section 6.8(e) shall
not exceed (x) the sum of (I) $250,000,000 and (II) a positive
amount equal to 50% of cumulative Consolidated Net Income during
the period from October 1, 2004 to the end of the most recent
fiscal quarter for which financial information is available
preceding the date of such repurchase (or, in case such
Consolidated Net Income is a deficit, minus 100% of such deficit)
minus (y) an amount equal to the aggregate amount of dividends in
excess of $75,000,000 paid by the Parent Borrower in any fiscal
year in reliance on Section 6.8(g), and
(B) less than 2.50 to 1.00, the aggregate amount of such
repurchases pursuant to this Section 6.8(e) shall be unlimited.
(b) Section 6.8(g) of the Credit Agreement is hereby amended by
deleting therefrom the words "Section 6.8(e)(ii)(A)(y)" and substituting in
lieu thereof the words "Section 6.8(e)(ii)(A)(x)(II)".
SECTION 9. Amendment to Schedule 6.5 to the Credit Agreement.
Schedule 6.5 to the Credit Agreement is hereby amended in its entirety to
read as set forth on Schedule 6.5 attached hereto.
SECTION 10. Conditions to Effectiveness. This Amendment shall
become effective on the date (the "First Amendment Effective Date") on
which the Administrative Agent shall have received:
(a) an executed counterpart of this Amendment from the Parent
Borrower;
(b) executed Lender Consent Letters (or facsimile transmissions
thereof) from the Required Lenders and the Majority Facility Lenders
in respect of each Facility consenting to the execution of this
Amendment by the Administrative Agent;
(c) an executed Acknowledgment and Consent (or a facsimile
transmission thereof), in the form set forth at the end of this
Amendment from each Loan Party;
(d) for the account of each Lender that executes and delivers a
Lender Consent Letter to counsel to the Administrative Agent on or
prior to 5:00 p.m., New York City time, on December 22, 2004, an
amendment fee from the Parent Borrower in an amount equal to 0.05% of
the sum of each such Lender's Revolving Commitments and Term Loans
then outstanding; and
(e) all fees required to be paid, and all reasonable
out-of-pocket expenses for which invoices have been presented
(including reasonable fees, disbursements and other charges of counsel
to the Agents), on or before the First Amendment Effective Date.
SECTION 11. Representations and Warranties. The representations
and warranties made by the Loan Parties in the Loan Documents are true and
correct in all material respects on and as of the First Amendment Effective
Date, before and after giving effect to the effectiveness of this
Amendment, as if made on and as of the First Amendment Effective Date.
SECTION 12. Payment of Expenses. The Parent Borrower agrees to
pay or reimburse the Administrative Agent for all of its out-of-pocket
costs and reasonable expenses incurred in connection with this Amendment
and any other documents prepared in connection herewith and the
transactions contemplated hereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent.
SECTION 13. Reference to and Effect on the Loan Documents. On and
after the First Amendment Effective Date, 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 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 hereby. 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. Except
as expressly amended herein, all of the provisions of the Credit Agreement
and the other Loan Documents are and shall remain in full force and effect
in accordance with the terms thereof and are hereby in all respects
ratified and confirmed.
SECTION 14. Counterparts. This Amendment may be executed by one
or more of the parties to this Amendment on any number of separate
counterparts, and all of said counterparts taken together shall be deemed
to constitute one and the same instrument. Delivery of an executed
signature page of this Amendment by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof. A set of
the copies of this Amendment signed by all the parties shall be lodged with
the Parent Borrower and the Administrative Agent.
SECTION 15. Governing Law. This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
SPX CORPORATION
By: /s/ Xxxxxxx X' Xxxxx
----------------------------
Name: Xxxxxxx X' Xxxxx
Title: Executive Vice President,
Treasurer and Chief Financial Officer
JPMORGAN CHASE BANK, N.A.
(formerly JPMorgan Chase Bank), as
Administrative Agent
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
