1
EXHIBIT 4.(vi)
AMENDMENT NO. 1 AND WAIVER TO CREDIT AGREEMENT
This Amendment and Waiver (this "Amendment") is entered into as of
December 19, 1997 by and among SPX Corporation, a Delaware corporation (the
"Borrower"), The First National Bank of Chicago, individually and as agent
("Agent"), and the other financial institutions signatory hereto.
RECITALS
A. The Borrower, the Agent and the Lenders are party to that
certain credit agreement dated as of May 7, 1997 (the "Credit Agreement").
Unless otherwise specified herein, capitalized terms used in this Amendment
shall have the meanings ascribed to them by the Credit Agreement.
B. The Borrower proposes to create a risk management subsidiary
to better control the costs associated with certain post-retirement benefit
obligations, workmen's compensation claims and keyman life insurance reserves
and, in connection therewith, plans to enter into a series of related
transactions. Such transactions, as set forth on Exhibit A hereto, are
collectively referred to as the "Transaction".
C. The Borrower, the Agent and the undersigned Lenders wish to
amend the Credit Agreement and waive certain provisions thereof on the terms
and conditions set forth below to, among other things, facilitate the
Transaction.
Now, therefore, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
1. Amendment to Credit Agreement. Upon the "Effective
Date" (as defined below), the Credit Agreement shall be amended as follows:
(a) The definition of "Net Available Proceeds" in
Article I of the Credit Agreement is amended by adding the following at the
conclusion thereof after the phrase "Asset Disposition":
"; provided, however, that in no event shall amounts received
from the Borrower or any Wholly-Owned Subsidiary constitute
"Net Available Proceeds.""
(b) The definition of "EBITDA" in Article I of
the Credit Agreement is amended by adding the following at the end of the first
sentence of such definition after the word "securitizations":
"and (v) restructuring charges of up to $125,000,000
recorded in the fourth quarter of 1997 in connection
with the restructuring of the SPX Service Solutions
Group".
2
(c) Section 6.13(b) of the Credit Agreement is
amended in its entirety to read as follows:
"(b) (i) any other sale, transfer or disposition
excluded from the definition of Asset Disposition or
permitted by Section 6.14 and (ii) the sales of real
estate and Class B Shares of SPX Risk Management Co.
described on Exhibit A to Amendment No. 1 to the
Credit Agreement dated as of December 19, 1997 and"
(d) Section 6.14 of the Credit Agreement is
amended in its entirety to read as follows:
"Sales of Accounts. Except with respect to any
Receivables Financings permitted hereunder, the
Borrower will not, nor will it permit any Subsidiary
to, sell or otherwise dispose of any notes receivable
or accounts receivable, with or without recourse;
provided, however, that for so long as Kodiak
Partners II Corp. remains a Wholly-Owned Subsidiary
and a Subsidiary Guarantor, the Borrower may from
time to time sell accounts receivable to Kodiak
Partners II Corp. pursuant to a revolving
receivables purchase agreement which has an advance
rate of not less than 90% and is in an amount not in
excess of $65,000,000 at any time outstanding."
(e) Section 6.15(h) of the Credit Agreement is
amended by deleting the reference to "$25,000,000" in the last line thereof and
substituting therefor "$50,000,000."
(f) A new Section 6.15(i) is added as follows:
"(i) (A) an Investment in the form of a cash
capital contribution of up to $75,000,000 made by the
Borrower to SPX Risk Management Co., the proceeds of
which are used by SPX Risk Management Co. to make a
loan (which shall also be permitted hereby) to Kodiak
Partners II Corp. (the "Kodiak Loan"), (B) an
Investment in the form of a cash capital contribution
by SPX Netherlands B.V. to SPX Risk Management Co. of
up to $37,000, in each case as more fully described
on Exhibit A to Amendment No. 1 to the Credit
Agreement dated as of December 19, 1997, (C) any
non-cash Investment of the Borrower in Kodiak
Partners II Corp. which arises out of the
transactions described on such Exhibit A and (D)
demand loans (collectively, the "Demand Loan") by the
Borrower to SPX Risk Management Co. at no time
exceeding $25,000,000 in aggregate outstanding
principal amount, as described on such Exhibit A;
provided, however, that within one Business Day after
receipt by SPX Risk Management Co. of any payment of
principal or interest in respect of the Kodiak Loan,
the Borrower shall cause SPX Risk Management Co. to
use the proceeds of such payment (less any portion
thereof reasonably required to meet the cash needs of
SPX Risk Management Co.) to repay any outstanding
principal and interest then owing in respect of the
Demand Loan."
-2-
3
(g) Part II of Schedule 5.9 of the Credit Agreement is
amended by deleting the word "None" and replacing it with the
following:
"SPX Risk Management Co.'s Class B Shares are
redeemable as described on Exhibit A to Amendment No.
1 to the Credit Agreement dated as of December 19,
1997."
(h) A new Section 7.14 is added to the Credit Agreement
as follows:
"7.14 The Borrower shall at any time fail to own
directly or indirectly at least 85% of the
outstanding capital stock of SPX Risk Management Co."
2. Waiver. The Lenders hereby waive any breach of
Section 6.17 of the Credit Agreement arising solely out of the Transaction.
3. Representations and Warranties of the Borrower. The
Borrower represents and warrants that:
(a) The execution, delivery and performance by
the Borrower of this Amendment have been duly authorized by all
necessary corporate action and that this Amendment is a legal, valid
and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by general principles
of equity;
(b) Each of the representations and warranties
contained in the Credit Agreement is true and correct in all material
respects on and as of the date hereof as if made on the date hereof;
and
(c) No Default or Unmatured Default has occurred
and is continuing.
4. Effective Date. Sections 1 and 2 of this Amendment
shall become effective upon:
(a) The execution and delivery hereof by the
Borrower, the Agent and the Required Lenders (without respect to
whether it has been executed by all the Lenders);
(b) The execution and delivery by each of the
Subsidiary Guarantors of an Affirmation of Guaranty in the form of
Exhibit B hereto;
(c) The execution and delivery by SPX Risk
Management Co. of a Joinder Agreement in the form attached to the
Subsidiary Guaranty; and
(d) Payment by the Borrower to the Agent for the
pro-rata account of the Lenders of an amendment fee equal to .04% of
the Aggregate Commitment.
-3-
4
The date upon which such events have occurred is the "Effective Date". In the
event the Effective Date has not occurred on or before December 31, 1997,
Sections 1 and 2 hereof shall not become operative and shall be of no force or
effect.
5. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically amended above, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of
this Amendment shall not operate as a waiver of any right, power or
remedy of the Agent or any Lender under the Credit Agreement or any
Loan Document, nor constitute a waiver of any provision of the Credit
Agreement or any Loan Document, except as specifically set forth
herein. Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of similar import shall mean and be a reference to
the Credit Agreement as amended hereby.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF
LAWS PROVISIONS) OF THE STATE OF ILLINOIS BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
7. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purposes.
8. Counterparts. This Amendment may be executed in any
number of counterparts, each of which when so executed shall be deemed an
original but all such counterparts shall constitute one and the same
instrument.
[signature pages follow]
-4-
5
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date and year first above written.
SPX Corporation The First National Bank of Chicago,
individually and as Agent
By: Xxxxxxx X. X'Xxxxx By: Xxxxxx X. Xxxxxxx III
-------------------------------------- -------------------------------
Its: Vice President Finance, Treasurer Its: Senior Vice President
------------------------------------- -----------------------------
And Chief Financial Officer
-------------------------------------
The Sumitomo Bank, Limited, Chicago
Branch
By: Xxx-Xxxxxx Xxxxxxxxx
------------------------------
Its: Joint General Manager
-------------------------------
Michigan National Bank
By: Xxxxxx X. Xxxxxxxx
--------------------------------
Its: Commercial Relationship
-------------------------------
Manager
-------------------------------
The Sanwa Bank, Limited, Chicago
Branch
By: Xxxxxxx X. Xxxx
--------------------------------
Its: Vice President
-------------------------------
The Fuji Bank, Limited
By:
--------------------------------
Its:
-------------------------------
-5-
6
Yasuda Trust and Banking Company,
Limited
By: Xxxx Xxxxxxxxxxxxxx
-------------------------------
Its: Senior Vice President
-------------------------------
CIBC, Inc.
By: Xxxxxxx X. Xxxxx
--------------------------------
Its: Executive Director
-------------------------------
Dresdner Bank AG, New York and
Grand Cayman Branches
By: Xxxx X. Xxxxxxx &
Xxxxxxx X. Xxxxx
--------------------------------
Its: Assistant Vice President &
-------------------------------
Vice President
-------------------------------
Bank of Tokyo-Mitsubishi Trust
Company
By:
--------------------------------
Its:
-------------------------------
Credit Lyonnais, Chicago Branch
By: Xxxx X. Xxxxx
--------------------------------
Its: Vice President
-------------------------------
-6-
7
The Long-Term Credit Bank of Japan,
Ltd.
By: Xxxx X. Xxxxxxxx
-------------------------------
Its: Senior Vice President
-------------------------------
Comerica Bank
By: Xxxx Xxxxxxxx
--------------------------------
Its: Vice President
-------------------------------
The Bank of Nova Scotia
By: F. C. H. Xxxxx
--------------------------------
Its: Senior Manager Loan Operations
-------------------------------
The Bank of New York
By: Xxxx X. Xxxxx, Xx.
--------------------------------
Its: Vice President
-------------------------------
The Mitsubishi Trust and Banking
Corporation, Chicago Branch
By: Xx. Xxxxx Xxxxxxxx
--------------------------------
Its: Chief Manager
-------------------------------
-7-
