1
EXHIBIT 4.5(c)
THIRD AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT (this "Amendment") is entered into as of February
___, 1998, among IDEX Corporation, a Delaware corporation (the "Company"), the
several financial institutions from time to time party to the Credit Agreement
(as defined herein) (collectively, the "Banks"; individually, a "Bank"), and
Bank of America National Trust and Savings Association, as successor by merger
to Bank of America Illinois, as agent for the Banks (the "Agent").
BACKGROUND
WHEREAS, the Company, the Banks and the Agent have entered into that
certain Third Amended and Restated Credit Agreement dated as of July 17, 1996
(as the same may be further amended or modified from time to time, the "Credit
Agreement") and the Loan Documents referred to in the Credit Agreement;
WHEREAS, the Company, the Banks and the Agent have determined that the
Credit Agreement should be amended in certain respects and to make certain
other changes agreed to by the parties.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to such terms in the Credit Agreement.
2. Certain Amendments to Credit Agreement. The Credit Agreement is hereby
amended, effective on the date this Amendment becomes effective in accordance
with Section 4 hereof, as follows:
2.1 The definition of "Intercompany Note" set forth in Section 1.01 of the
Credit Agreement is hereby amended by deleting it in its entirety.
2.2 The definition of "Loan Documents" set forth in Section 1.01 of the
Credit Agreement is hereby amended by deleting it in its entirety and inserting
the following in lieu thereof:
"Loan Documents" means this Agreement, any Notes, the Fee Letters, the L/C
Related Documents and all other documents delivered to the Agent or any
Bank or Designated Bidder in connection herewith or therewith.
2.3 The definition of "Pledge Agreement" set forth in Section 1.01 of the
Credit Agreement is hereby amended by deleting it in its entirety.
2
2.4 The definition of "Pledged Notes" set forth in Section 1.01 of the
Credit Agreement is hereby amended by deleting it in its entirety.
2.5 The definition of "Subordinated Debt" set forth in Section 1.01 of the
Credit Agreement is hereby amended by deleting it in its entirety and inserting
the following in lieu thereof:
"Subordinated Debt" shall mean all unsecured Indebtedness of the
Company for money borrowed which is subordinated in form and
substance to the Obligations, and which has terms of payment,
covenants and remedies, all satisfactory to the Majority Banks as
evidenced by their written approval thereof.
2.6 The definition of "Subsidiary Guaranty Agreement" set forth in Section
1.01 of the Credit Agreement is hereby amended by deleting it in its entirety.
2.7 The definition of "Subsidiary Guarantor" set forth in Section 1.01 of
the Credit Agreement is hereby amended by deleting it in its entirety.
2.8 Section 5.01(a) of the Credit Agreement is hereby amended by deleting
it in its entirety and inserting the following in lieu thereof:
"(a) Loan Documents. This Agreement and the Notes executed by
each party thereto shall have been delivered to Agent;"
2.9 Section 6.17 of the Credit Agreement is hereby amended by deleting it
in its entirety and inserting the following in lieu thereof:
"6.17 [Intentionally Omitted]"
2.10 Section 6.18 of the Credit Agreement is hereby amended by deleting it
in its entirety and inserting the following in lieu thereof:
"6.18 [Intentionally Omitted]"
2.11 Section 7.13 of the Credit Agreement is hereby amended by deleting it
in its entirety and inserting the following in lieu thereof:
"7.13 [Intentionally Omitted]"
2.12 Section 8.02(f) of the Credit Agreement is hereby amended by deleting
the last paragraph of said section.
2.13 Section 8.04(e) of the Credit Agreement is hereby amended by deleting
it in its entirety and inserting the following in lieu thereof:
3
"(e) additional Investments in any Domestic Subsidiary (other
than an Investment constituting an Acquisition which shall be
governed by Section 8.04 (g) or (h) below; provided that any such
additional equity Investments in Domestic Subsidiaries after the
Closing Date shall not exceed, in the aggregate $10,000,000
outstanding;"
2.14 Section 8.04(n), subclause (4), of the Credit Agreement is hereby
amended by deleting it in its entirety and inserting the following in lieu
thereof:
"(4) [Intentionally Omitted]; and"
2.15 Section 8.05(e) of the Credit Agreement is hereby amended by deleting
it in its entirety and inserting the following in lieu thereof:
"(e) Intercompany Indebtedness to the extent permitted by
Section 8.04; provided, however, that in the event of any subsequent
issuance or transfer of any capital stock which results in the
holder of such Indebtedness ceasing to be a Subsidiary of the
Company or any subsequent transfer of such Indebtedness (other than
to the Company or any of its Subsidiaries) such Indebtedness shall
be required to be permitted under another clause of this Section
8.05; provided, further, however, that (x) in the case of
Intercompany Indebtedness consisting of a loan or advance to
Borrower, each such loan or advance shall be subordinated to the
indefeasible payment in full of all of Borrower's obligations
pursuant to this Agreement and the other Loan Documents;"
2.16 Section 8.05(f) of the Credit Agreement is hereby amended by deleting
it in its entirety and inserting the following in lieu thereof:
"(f) Subordinated Debt of the Company in an aggregate amount
not to exceed $150,000,000 (it being understood that with respect to
such Subordinated Debt, the approval of the Majority Banks required
by the definition of Subordinated Debt will not be unreasonably
withheld); and"
2.17 Section 8.07(e) of the Credit Agreement is hereby amended by deleting
it in its entirety and inserting the following in lieu thereof:
"(e) [Intentionally Omitted];"
2.18 Section 8.08(d) of the Credit Agreement is hereby amended by deleting
it in its entirety and inserting the following in lieu thereof:
"(d) the Company may prepay, redeem or defease all of the
principal amount of the Subordinated Notes;"
4
2.19 Section 8.12 of the Credit Agreement is hereby amended by deleting
"(a)" and by deleting paragraph (b) thereof in its entirety.
2.20 Section 8.14 of the Credit Agreement is hereby amended by deleting in
its entirety the parenthetical beginning with the words "excepting this" in the
third line down and inserting the following in lieu thereof:
"(excepting this Agreement and any Instrument executed pursuant
hereto and any agreement governing indebtedness permitted to be
incurred under Section 8.05(i) or any other agreement evidencing
Subordinated Debt)"
2.21 Section 9.01(k) of the Credit Agreement is hereby amended by deleting
it in its entirety and inserting the following in lieu thereof:
"(k) [Intentionally Omitted]; or"
2.22 Section 9.01(l) of the Credit Agreement is hereby amended by deleting
it in its entirety and inserting the following in lieu thereof:
"(l) Invalidity of Subordination Provisions. The subordination
provisions of any agreement or instrument governing any Subordinated
Debt is for any reason revoked or invalidated, or otherwise cease to
be in full force and effect, any Person contests in any manner the
validity or enforceability thereof or denies that it has any further
liability or obligation thereunder, or the Indebtedness hereunder is
for any reason subordinated or does not have the priority
contemplated by this Agreement or such subordination provisions."
2.23 The opening paragraph of Section 11.01 of the Credit Agreement is
hereby amended by deleting the following phrase found in the fifth line down in
its entirety:
"or any Subsidiary Guarantor, as applicable,"
2.24 Section 11.01(e) of the Credit Agreement is hereby amended by
deleting it in its entirety and inserting the following in lieu thereof:
"(e) [Intentionally Omitted]; or"
2.25 Section 11.20 of the Credit Agreement is hereby amended by deleting
it in its entirety and inserting the following in lieu thereof:
"11.20 [Intentionally Omitted]."
2.26 Exhibits 1.01A and 1.01B are hereby amended by deleting them in their
entirety.
5
2.27 Each of the Banks hereby authorizes and directs the Agent to release
all security for the Obligations and to terminate the Pledge Agreement and the
Subsidiary Guaranty Agreement as of the effective date of this Amendment.
3. Conditions to Effectiveness of this Amendment. This Amendment shall
become effective upon the satisfaction of the receipt by the Agent of duly
executed counterparts of this Amendment from the Company and the Banks, the
payment by the Company to the Agent for the ratable benefit of all the Banks of
an amendment fee equal to .07% of the Commitment of each Bank, and the receipt
by the Agent of such other documents, certificates, instruments or opinions as
may reasonably be requested by it.
4. Certain Representations and Warranties by the Company. In order to
induce the Banks and the Agent to enter into this Amendment, the Company
represents and warrants to the Banks and the Agent that:
4.1 Authority. The Company has the right, power and capacity and has been
duly authorized and empowered by all requisite corporate and shareholder action
to enter into, execute, deliver and perform this Amendment and the Credit
Agreement as amended hereby.
4.2 Validity. This Amendment and the Credit Agreement as amended hereby
have each been duly and validly executed and delivered by the Company and
constitutes its legal, valid and binding obligations, enforceable against the
Company in accordance with its respective terms, except as enforcement thereof
may be subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law or otherwise).
4.3 No Conflicts. The Company's execution, delivery and performance of
this Amendment and the Credit Agreement as amended hereby does not and will not
violate its Certificates or Articles of Incorporation or Bylaws, any law, rule,
regulation, order, writ, judgment, decree or award applicable to the Company or
any contractual provision to which the Company is party or to which the Company
or any of its Subsidiaries are subject.
4.4 Approvals. No authorization or approval or other action by, and no
notice to or filing or registration with, any Governmental Authority or
regulatory body (other than those which have been obtained and are in force and
effect) is required in connection with the Company's execution, delivery and
performance of this Amendment and the Credit Agreement as amended hereby.
4.5 Incorporated Representations and Warranties. All representations and
warranties contained in the Loan Documents are true and correct in all material
respects with the same effect as though such representations and warranties had
been made on and as of the date hereof and the
6
effective date hereof, except as to any representations or warranties which
expressly relate to an earlier date, in which event, such representations and
warranties are true as of such date.
4.6 No Defaults. No Default or Event of Default exists as of the date
hereof or will exist after giving effect to this Amendment.
5. Miscellaneous. The parties hereto hereby further agree as follows:
5.1 Further Assurances. Each of the parties hereto hereby agrees to do
such further acts and things and to execute, deliver and acknowledge such
additional agreements, powers and instruments as any other party hereto may
reasonably require to carry into effect the purposes of this Amendment and the
Credit Agreement as amended hereby.
5.2 Counterparts. This Amendment may be executed in one or more
counterparts, each of which, when executed and delivered, shall be deemed to be
an original and all of which counterparts, taken together, shall constitute but
one and the same document with the same force and effect as if the signatures
of all of the parties were on a single counterpart, and it shall not be
necessary in making proof of this Amendment to produce more than one such
counterpart.
5.3 Headings. Headings used in this Amendment are for convenience of
reference only and shall not affect the construction of this Amendment.
5.4 Integration. This Amendment and the Loan Documents constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof and thereof.
5.5 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF ILLINOIS, AND FOR ALL PURPOSES SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF SAID STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
5.6 Binding Effect. This Amendment shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns; provided, however, that the Company may not assign or
transfer its rights, interests or obligations hereunder without the prior
written consent of the Agent and all of the Banks. Except as expressly set
forth to the contrary herein, this Amendment shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Amendment and their respective successors and permitted assigns.
5.7 Amendment; Waiver; Reaffirmation of Loan Documents. The parties
hereto agree and acknowledge that nothing contained in this Amendment in any
manner or respect limits or terminates any of the provisions of the Credit
Agreement or the other Loan Documents other than as expressly set forth herein
and further agree and acknowledge that the Credit Agreement and
7
each of the other Loan Documents remain and continue in full force and effect
and are hereby ratified and reaffirmed in all respects. No delay on the part
of any Bank or the Agent in exercising any of their respective rights,
remedies, powers and privileges under the Credit Agreement or any of the other
Loan Documents or partial or single exercise thereof, shall constitute a waiver
thereof. None of the terms and conditions of this Amendment may be changed,
waived, modified or varied in any manner, whatsoever, except in accordance with
Section 11.01 of the Credit Agreement.
5.8 Reference to and Effect on the Credit Agreement and the other Loan
Documents. Upon the effectiveness hereof, each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein," 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 by this Amendment. The Credit Agreement shall
be deemed to be amended wherever and as necessary to reflect the foregoing
amendments.
[SIGNATURE PAGE FOLLOWS]
8
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as
of the date first above written.
IDEX CORPORATION
By:________________________
Title:_____________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, AS AGENT
By:________________________
Title:_____________________
9
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, AS A BANK
By:________________________
Title:_____________________
00
XXXX XX XXXXXXXX
By:________________________
Title:_____________________
11
NATIONAL CITY BANK
By:________________________
Title:_____________________
12
PNC BANK, NATIONAL ASSOCIATION
By:________________________
Title:_____________________
00
XXXXX XXXX XX XXXXXXXXXX, N.A.,
(SUCCESSOR IN INTEREST TO UNION BANK)
By:________________________
Title:_____________________
14
U.S. BANK NATIONAL ASSOCIATION,
(SUCCESSOR IN INTEREST TO UNITED STATES
NATIONAL BANK OF OREGON)
By:________________________
Title:_____________________
15
THE XXXXXX TRUST AND SAVINGS
BANK CO.
By:________________________
Title:_____________________
