NINTH AMENDMENT TO CREDIT
AND GUARANTY AGREEMENT
THIS NINTH AMENDMENT, dated as of January 26, 2001 (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 Banc of
America Securities, L.L.C. (formerly known as 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 waive
certain requirements of the Existing Credit Agreement, and the Lenders have
agreed to amend the Existing Credit Agreement and to grant such waivers and
consents 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 TO THE EXISTING CREDIT AGREEMENT
Effective upon (and subject to) the occurrence of the Ninth Amendment
Effective Date, certain terms and provisions of the Existing Credit Agreement
are hereby amended, and the waivers and consent described below are hereby
granted, all in accordance with this Amendment.
SUBPART II.1. Amendments to Article I. Article I of the Existing
Credit Agreement is hereby amended in accordance with Subparts 2.1.1 and 2.1.2.
SUBPART II.1.1. Section 1.1 of the Existing Credit Agreement is hereby
amended by adding the following definitions in their appropriate alphabetical
sequence:
"Additional Amount" means the amount of Net Disposition Proceeds
received by the Borrower and its Subsidiaries from the Xxxxx Disposition minus
the aggregate amount of such Net Disposition Proceeds applied as required by
clauses (a), (b) and (c) of Subpart 3.1.1 of Amendment No. 9.
"Amendment No. 9" means the Ninth Amendment, dated as of January 26,
2001, to this Agreement among the Borrower, the Parent and the Lenders parties
thereto.
"Xxxxx Assets" means, collectively, the Assets (as defined in the Xxxxx
Purchase Agreement).
"Xxxxx Disposition" means the sale of the Xxxxx Assets in accordance
with the terms of the Xxxxx Purchase Agreement.
"Xxxxx Purchase Agreement" means the Asset Purchase Agreement, dated as
of November 15, 2000, among the Borrower (as the seller), TFX Acquisition
Incorporated, a Delaware corporation and Teleflex Incorporated, a Delaware
corporation, and other documents (including any escrow agreements) delivered to
the Administrative Agent at least one Business Day (or such shorter period
agreed to by the Administrative Agent) prior to the consummation of the Xxxxx
Disposition, as amended, supplemented, amended and restated or otherwise
modified following the Ninth Amendment Effective Date in accordance with Section
7.2.12.
"Ninth Amendment Effective Date" is defined in Subpart 4.1 of Amendment
No. 9.
"Restricted Payment" means the declaration or payment of any dividend
(other than dividends payable solely in capital securities of the Borrower which
does not result in a Default) on, or the making of any payment or distribution
on account of, or setting apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any class of capital securities of the Borrower or any warrants or options to
purchase any such capital securities, whether now or hereafter outstanding, or
the making of any other distribution in respect thereof, either directly or
indirectly, whether in cash or property, obligations of the Borrower or
otherwise.
SUBPART II.1.2. Section 1.1 of the Existing Credit Agreement is hereby
further amended as follows:
(a) the grid contained in the definition of "Applicable
Commitment Fee Margin" is hereby amended in its entirety as follows,
and the following proviso is hereby added immediately following such
grid:
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Applicable Commitment Fee
Leverage Ratio Margin
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Less than 1.5:1 0.250%
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Greater than or equal to 1.5:1 0.375%;
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provided, that the Applicable Commitment Fee Margin shall at
all times prior to the Ninth Amendment Effective Date be the
rate set forth in (and determined in accordance with the terms
of) this Agreement as in effect prior to such date.
(b) the definition of "Applicable Margin" is hereby amended
in its entirety to read as follows:
"Applicable Margin" means (i) at all times prior to the Ninth
Amendment Effective Date the rate set forth in (and determined
in accordance with the terms of) this Agreement as in effect
prior to such date and (ii) on and subsequent to the Ninth
Amendment Effective Date, an amount at all times during the
applicable periods set forth below determined as follows:
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Applicable Margin for Applicable Margin for LIBO
Leverage Ratio Base Rate Loans Rate Loans
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Less than 1.5:1 0.00% 1.25%
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Greater than or equal to 1.5:1 and less 0.25% 1.50%
than 2:1
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Greater than or equal to 2:1 0.50% 1.75%
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The Leverage Ratio used to compute the Applicable Margin
shall, subject to the terms of the next sentence, be the
Leverage Ratio set forth in the Compliance Certificate most
recently delivered by the Borrower to the Administrative Agent
pursuant to clause (b) of Section 7.1.1, and changes in the
Applicable Margin resulting from a change in the Leverage
Ratio shall become effective upon delivery by the Borrower to
the Administrative Agent of a new Compliance Certificate
pursuant to clause (b) of Section 7.1.1 and notice therein of
such change. Notwithstanding the foregoing, the Applicable
Margin for the period from the Ninth Amendment Effective Date
through (and including) the date on which the Borrower
delivers its Compliance Certificate in respect of the Fiscal
Quarter ending March 31, 2001 shall be 1.75% for LIBO Rate
Loans and 0.50% for Base Rate Loans. If the Borrower shall
fail to deliver a Compliance Certificate within 45 days after
the end of any Fiscal Quarter (or within 90 days, in the case
of the last Fiscal Quarter of the Fiscal Year), the Applicable
Margin from and including the 46th (or 91st, as the case may
be) day after the end of such Fiscal Quarter to but not
including the date the Borrower delivers to the Administrative
Agent a Compliance Certificate shall equal 1.75% for LIBO Rate
Loans and 0.50% for Base Rate Loans.
(c) Clause (b) of the definition of "Fixed Charged Coverage
Ratio" is hereby amended by replacing the period at the end of clause
(b)(ii) with the word "plus", and adding a new clause (iii) to read in
its entirety as follows:
(iii) without duplication, all Restricted Payments paid in
cash or declared by the Parent or the Borrower pursuant to
clause (c) of Section 7.2.15, in each case during such Rolling
Period.
(d) The definition of "Permitted Amount" is hereby amended by
deleting the amount "$105,000,000" each time it appears, and inserting
"$155,000,000" in its place.
(e) Clause (b) of the definition of "Permitted Disposition"
is hereby amended in its entirety to read as follows:
(b) the aggregate fair market value of all such dispositions
shall not exceed $5,000,000 in any Fiscal Year (excluding (i)
the sale by the Borrower of the Instrumentation Segment
pursuant to the terms of Section 7.1.10, (ii) the sale by the
Borrower of Roltra Xxxxx for net cash proceeds of not less
than $15,000,000 (after the repayment of its existing
Indebtedness), (iii) permitted Real Estate Dispositions and
(iv) the Xxxxx Disposition);
SUBPART II.2. Amendment to Article III. Article III of this Existing
Credit Agreement is hereby amended in accordance with Subpart 2.2.1.
SUBPART II.2.1. The amortization amounts for the period from February
28, 2001 through August 29, 2002 set forth in clause (b) of Section 3.1.2 of the
Existing Credit Agreement are hereby amended to read as follows:
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February 28, 2001 $1,111,111.11
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May 29, 2001 $1,111,111.11
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August 29, 2001 $1,111,111.11
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November 29, 2001 $1,666,666.67
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February 28, 2002 $1,666,666.67
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May 29, 2002 $1,666,666.67
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August 29, 2002 $1,666,666.66, or the then
outstanding principal amount of all
Term Loans, if different.
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SUBPART II.3. Amendment to Article IV. Clause (iv)(B) of Section 4.10
of the Existing Credit Agreement is hereby amended by
deleting the amount "$105,000,000" and inserting "$155,000,000" in its place.
SUBPART II.4. Amendments to Article VII. Article VII of the Existing
Credit Agreement is hereby amended in accordance with
Subpart 2.4.1 through Subpart 2.4.15.
SUBPART II.4.1. Clause (m) of Section 7.2.2 of the Existing Credit
Agreement is hereby amended in its entirety to read as
follows:
(m) [RESERVED]; and
SUBPART II.4.2. Clauses (i) and (j) of Section 7.2.3 of the Existing
Credit Agreement are hereby amended in their entirety to
read as follows:
(i) [RESERVED];
(j) [RESERVED]; and
SUBPART II.4.3. The Leverage Ratio contained in clause (c) of Section
7.2.4 of the Existing Credit Agreement for each Fiscal Quarter ending on and
after March 31, 2001 is hereby amended to read as follows:
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March 31, 2001 and each 2.25:1.00
Fiscal Quarter thereafter
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SUBPART II.4.4. The minimum EBITDA contained in clause (e) of Section
7.2.4 of the Existing Credit Agreement for each Fiscal Quarter ending on and
after March 31, 2001 is hereby amended to read as follows:
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March 31, 2001 and each Fiscal $32,000,000
Quarter thereafter
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SUBPART II.4.5. Each of clauses (a) and (c) of Section 7.2.5 of the
Existing Credit Agreement is hereby amended by deleting "(i)" (but not the text
thereof), and deleting entirely clause (a)(ii) and clause (c)(ii), respectively.
SUBPART II.4.6. Clause (g) of Section 7.2.5 of the Existing Credit
Agreement is hereby amended by deleting "(other than by
Receivables Co.)" in such clause.
SUBPART II.4.7. The proviso contained in Section 7.2.6 of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
provided, however, that, notwithstanding clauses (a)(i),
(a)(ii) and (a)(iii) of this Section 7.2.6, the Borrower may
(a) subject to the subordination provisions applicable
thereto, make payments of interest accrued on the Senior
Subordinated Notes when due, provided that no Default has
occurred and is continuing, (b) purchase or redeem Senior
Subordinated Notes (including with Net Disposition Proceeds of
the Xxxxx Disposition constituting the Additional Amount)
through open market purchases or redemptions so long as the
average purchase price of such Senior Subordinated Notes
purchased or redeemed remains in compliance with clause (iv)
of Section 4.10, (c) make a Restricted Payment in an amount
not to exceed $1,300,000 in any Fiscal Quarter, and (d) make
an additional Restricted Payment in the amount of $6,800,000
(the "Additional Restricted Payment") at the time of the
delivery of the Compliance Certificate for the last Fiscal
Quarter of each Fiscal Year; provided, that (x) in all cases
such Restricted Payments will only be permitted if both before
and after giving effect to the declaration and making of the
Restricted Payment, no Default shall have occurred or be
continuing or result from such Restricted Payment and (y)
prior to making the Additional Restricted Payment, the
Administrative Agent shall have received a pro forma
Compliance Certificate in respect of the Fiscal Year most
recently ended representing as to the terms of clause (d) and
evidencing compliance with Section 7.2.4.
SUBPART II.4.8. Section 7.2.7 of the Existing Credit Agreement is
hereby amended by (i) deleting the phrase "(other than
Receivables Co.)" and (ii) replacing the number "$12,500,000" with "$7,000,000".
SUBPART II.4.9. Section 7.2.10 of the Existing Credit Agreement is
hereby amended by (i) deleting the phrase "(other than
Receivables Co.)" each time it appears in such Section and (ii) adding the
following sentence to the end of such Section:
Notwithstanding anything in this Section to the contrary, the
Borrower and Xxxxxx Pumps Inc. may purchase all
or substantially all of the assets of Receivables Co. for fair
market value (as reasonably determined by an
Authorized Officer of the Borrower).
SUBPART II.4.10. Section 7.2.11 of the Existing Credit Agreement is
hereby amended by (i) inserting the word "or" prior to clause (c)(iv), (ii)
deleting clause (c)(v) and the word "or" which appears immediately prior to and
at the end of clause (c)(v), (iii) deleting the word "or" at the end of clause
(c); (iv) replacing the period at the end of clause (d) with "; or" and (iv)
adding a new clause (e), to read in its entirety as follows:
(e) the Xxxxx Disposition in accordance with the terms of the
Xxxxx Purchase Agreement.
SUBPART II.4.11. Section 7.2.12 of the Existing Credit Agreement is
hereby amended in its entirety to read as follows:
SECTION 7.2.12. Modification of Certain Agreements. Neither
the Borrower nor the Parent will, nor will they permit any of
their respective Subsidiaries to, consent to any amendment,
supplement or other modification of any of the terms or
provisions contained in, or applicable to, any Organic
Document, the Borrower Preferred Stock, the Parent
Subscription Agreement, the Borrower Subscription Agreement,
the Subordinated Notes, or the Xxxxx Purchase Agreement, other
than any such amendment, supplement or other modification
which is immaterial and which could not adversely affect the
Administrative Agent or any Lender (it being understood and
agreed that, in any event, any modification to the
subordination provisions of, and any of the defined terms
therein, including the definition of "Specified Senior
Indebtedness" of the Subordinated Notes shall be deemed to be
material).
SUBPART II.4.12. Section 7.2.13 of the Existing Credit Agreement is
hereby amended by adding the following sentence to the end
of such Section:
Notwithstanding anything in this Section to the contrary, the
Borrower and Xxxxxx Pumps Inc. may purchase all
or substantially all of the assets of Receivables Co. for
fair market value (as reasonably determined by an
Authorized Officer of the Borrower).
SUBPART II.4.13. The second parenthetical contained in Section 7.2.14
of the Existing Credit Agreement is hereby amended in its
entirety to read as follows:
(excluding this Agreement, any other Loan Document, the
Subordinated Note Indenture or any loan or financing document
related to refinanced Non-U.S. Subsidiary Indebtedness
existing on the Effective Date provided that such refinanced
Indebtedness is not guaranteed by the Borrower)
SUBPART II.4.14. Section 7.2.15 of the Existing Credit Agreement is
hereby amended (i) by deleting clause (a)(v) and
re-lettering clause (a)(vi) as new clause (a)(v).
SUBPART II.4.15. Section 7.2.20 of the Existing Credit Agreement is
hereby amended by deleting the phrase "(other than
Receivables Co.)".
SUBPART II.5. Amendment to Article VIII. Article VIII of the Existing
Credit Agreement is hereby amended by deleting Section 8.1.11.
SUBPART II.6. Amendment to Article XI. Article XI of the Existing
Credit Agreement is hereby amended in accordance with Subpart 2.6.1.
SUBPART II.6.1. Clause (b) of Section 11.1 of the Existing Credit
Agreement is hereby amended by deleting "(including the sale or transfer of
Receivables and Related Rights in accordance with the Permitted Receivables
Transaction)".
SUBPART II.7. Conforming Amendments to Exhibit F. Attachments 1
and 3 of Exhibit F (Form of Compliance Certificate) to the Credit Agreement are
hereby amended in their entirety to read as set forth in Annex 1 hereto.
PART III
CONSENTS, ETC.
SUBPART III.0.1. Application of Proceeds. Notwithstanding anything
contained in the Existing Credit Agreement to the contrary (including Section
3.1.2 thereof), the Lenders hereby consent to the application of the Net
Disposition Proceeds from the Xxxxx Disposition as follows:
(a) an amount equal to $17,300,000 to a mandatory prepayment
of the outstanding principal amount of all Term Loans;
(b) an amount equal to the Receivables Facility Outstandings
to the repayment of all such Receivables Facility
Outstandings;
(c) any remaining Net Disposition Proceeds of the Xxxxx
Disposition (after the application required by clauses (a) and (b)), to
the outstanding principal amount of the Revolving Loans (but not a
reduction to the Revolving Loan Commitment Amount), until the
outstanding principal amount of all Revolving Loans is zero; and
(d) without limiting the terms of the Credit Agreement, the
Additional Amount may be used (at the Borrower's discretion) for the
purchase or redemption of Senior Subordinated Notes and/or for making
Cash Equivalent Investments.
SUBPART III.0.2. Direction Regarding Partial Release of Liens. Each of
the Lenders hereby authorizes and directs the Administrative Agent to release
and terminate, at the Borrower's expense and without representation or warranty
of any kind by any Lender or any Agent, all Liens on and security interests in
all assets constituting the Xxxxx Assets previously granted by the Obligors
under any Loan Document in favor of the Administrative Agent and the Lenders to
the extent (and only to the extent) such Xxxxx Assets are sold, or purported to
be sold, pursuant to the Xxxxx Purchase Agreement, and also to return to the
Borrower for cancellation the intercompany notes payable to the Borrower, in
each case dated August 29, 1997 and in each case in the original principal
amount of $40,000,000, made by IMO Industries (UK) Limited, Xxxxx Controls AB
and IMO Industries GmbH (collectively referred to as the "Cancelled Notes"). The
Administrative Agent will, at the Borrower's expense and without representation
or warranty (and the Lenders hereby authorize and direct the Administrative
Agent to) deliver to the Borrower (i) the Cancelled Notes, (ii) executed copies
of Uniform Commercial Code (Form U.C.C.3) amendment statements or similar
instruments, and any termination documents required to release the
Administrative Agent's and the Lenders' Lien on intellectual property
constituting Xxxxx Assets, with respect to each of the filings previously made
pursuant to a Security Agreement and (iii) the certificates (or other evidence
of ownership) representing any capital stock that is pledged to secure the
Obligations of a Subsidiary which constitutes a Xxxxx Asset in each case
necessary to give effect to the release of the Liens on the Cancelled Notes and
on the Xxxxx Assets.
SUBPART III.0.3. Dissolution of Receivables Co., etc. Each of the
Lenders hereby (i) waive for a period of 35 days following the Ninth Amendment
Effective Date the requirements that the Borrower pledge the capital stock of
Receivables Co., and that Receivables Co. deliver Loan Documents and any other
agreements, documents and instruments, in accordance with Sections 7.1.8 and
7.1.16 of the Existing Credit Agreement and (ii) waive all provisions contained
in the Existing Credit Agreement (including under Section 7.2.10 of the Existing
Credit Agreement) which prohibit the dissolution of Receivables Co. The Borrower
agrees that it will not, nor will it permit any of its Subsidiaries to, (i) make
any Investments in Receivables Co. or (ii) lease, transfer, or otherwise convey
any assets (real, personal, tangible, intangible or otherwise) to Receivables
Co., in each case from and subsequent to the Ninth Amendment Effective Date (but
excluding the asset purchases permitted under Sections 7.2.10 and 7.2.13 of the
Credit Agreement).
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART IV.1. This Amendment shall become effective on the date (the
"Ninth Amendment Effective Date") when all of the following conditions have been
satisfied to the satisfaction of the Administrative Agent.
SUBPART IV.1.1. Execution of Counterparts. The Administrative Agent
shall have received copies of this Amendment, duly
executed and delivered by the Borrower, the Parent and all of the Lenders.
SUBPART IV.1.2. Affirmation and Consent. The Administrative Agent
shall have received an affirmation and consent in form and
substance satisfactory to it, duly executed and delivered by each Subsidiary
Guarantor.
SUBPART IV.1.3. Amendment Fee. The Administrative Agent shall
received, for the pro rata account of each Lender in accordance
with its Percentage, an amendment fee in an amount equal to $80,000 (provided,
that such amendment fee shall only be payable if this
Amendment becomes effective).
SUBPART IV.1.4. Termination of Permitted Receivables Transaction. The
Administrative Agent shall have received evidence satisfactory to it that all
Receivables Facility Outstandings, and all other amounts owing in connection
with the Permitted Receivables Transaction, have been repaid in full, that the
Permitted Receivables Transaction has been terminated and is no longer binding
on the Borrower or its Subsidiaries, all Liens on Receivables and Related Rights
have been terminated and the Borrower or the applicable Subsidiary has title to
all of its Receivables and its Related Rights.
SUBPART IV.1.5. Amendments to Security Agreements. The Administrative
Agent shall have received an amendment to the Borrower Security Agreement and an
amendment to the Subsidiary Security Agreement, each in form and substance
satisfactory to the Administrative Agent and dated as of the Ninth Amendment
Effective Date, duly executed and delivered by the Borrower and each Subsidiary
a party to the Subsidiary Security Agreement, as the case may be.
SUBPART IV.1.6. Pro Forma Compliance Certificate. The Administrative
Agent shall have received, with counterparts for each Lender, a Compliance
Certificate (which Compliance Certificate shall be prepared by using Attachments
1 and 3 attached hereto as Annex 1) dated the Ninth Amendment Effective Date,
duly executed (and with all schedules thereto duly completed) and delivered by
the chief executive, financial or accounting Authorized Officer of the Borrower,
evidencing no Default.
SUBPART IV.1.7. Xxxxx Disposition. The Xxxxx Disposition shall have
been (or, concurrently with the effectiveness of this Amendment will be),
consummated in accordance with the terms of the Xxxxx Purchase Agreement and the
Administrative Agent shall have received (or, concurrently with the
effectiveness of this Amendment, will receive), the Net Disposition Proceeds
from the Xxxxx Disposition (other than the Net Disposition Proceeds required to
be applied to the Receivable Facility Outstandings); provided, that the
foregoing shall be deemed to have been satisfied even if all or any portion of
the capital securities of the Borrower's Chinese, Japanese, Singaporean and
Spanish direct and indirect Subsidiaries (and/or any of their assets) are
actually transferred or disposed of at some point after the closing of the Xxxxx
Disposition.
SUBPART IV.1.8. 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 V
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 V.1. Compliance with Warranties. Both before and 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 is in full compliance with Article 4 of the Subordinated
Note Indenture.
SUBPART V.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 V.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 V.4. Compliance With Existing Credit Agreement. As of the
Ninth Amendment Effective Date, both before and after giving effect to the
terms of this Amendment, no Default has occurred and is continuing.
PART VI
MISCELLANEOUS PROVISIONS
SUBPART VI.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 VI.2. Consent and Acknowledgment of Guarantors, 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 VI.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 VI.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 VI.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 VI.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 VI.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.
IMO INDUSTRIES INC.
By:_____________________________
Title:
COLFAX CORPORATION
(formerly known as II
Acquisition Corp.)
By:_____________________________
Title:
THE BANK OF NOVA SCOTIA
By:_____________________________
Title:
BANK OF AMERICA, N.A.
By:_____________________________
Title:
BANK ONE, NA
(Main Office Chicago)
By:_____________________________
Title:
FLEET CAPITAL CORPORATION
By:_____________________________
Title:
CREDIT INDUSTRIEL ET COMMERCIAL
By:_____________________________
Title:
By:_____________________________
Title:
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By:_____________________________
Title:
By:_____________________________
Title:
TRANSAMERICA BUSINESS CREDIT CORP
By:_____________________________
Title:
SUN TRUST BANK
By:_____________________________
Title:
CITIZENS BANK
By:_____________________________
Title:
