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EXHIBIT 3.4(ix)
WAIVER AND AMENDMENT NO. 8 TO CREDIT AGREEMENT
This Waiver and Amendment No. 8 to Credit Agreement
("Amendment No. 8") dated as of February 24, 1997 is made by and among SPX
Corporation, a Delaware corporation (the "Borrower"), each of the Lenders and
The First National Bank of Chicago, individually and as agent for the Lenders.
R E C I T A L S
A. The parties hereto are party to a certain Credit
Agreement dated as of March 24, 1994 (as heretofore amended, the "Credit
Agreement"). Each capitalized term used but not otherwise defined herein shall
have the meaning ascribed to such term in the Credit Agreement.
B. The parties hereto desire to enter into this
Amendment No. 8 in order to (a) amend the definition of EBITDA contained in the
Credit Agreement and Section 6.32 of the Credit Agreement as more fully
described hereinafter and (b) waive a currently existing Default under the
Credit Agreement more fully described hereinafter.
NOW, THEREFORE, in consideration of the mutual execution
hereof and other good and valuable consideration, the Agent, the Lenders and
the Borrower agree as follows:
1. Amendments.
1.1 Amendment of Definition of EBITDA. The
Definition of "EBITDA" contained in Article I of the Credit Agreement is hereby
amended by adding a proviso at the end of such definition to read as follows:
"provided, however, that such amount shall be computed without giving
effect to the one time non-cash write off of goodwill in the amount of
$67,800,000 associated with the Borrower's acquisition of Bear
Automotive Service Equipment Company and Xxxxx Test Products Division
of The Xxxxx Group, Inc. taken in the Borrower's fiscal quarter ending
December 31, 1996."
1.2 Amendment of Section 6.32. Section 6.32 of the Credit
Agreement is hereby amended by deleting it in its entirety.
2. Waiver. By its signature below each of the
undersigned Lenders hereby specifically waives any objection that it may have
and any Default caused by the violation of Section 6.10 of the Credit Agreement
as a result of the Borrower having declared a cash dividend for its fiscal
quarter ended December 31, 1996 in violation of the terms of Section 6.10 of
the Credit Agreement provided that such declaration is in compliance with the
terms of Section 6.10 of the Credit Agreement after giving effect to the
amendment contained in paragraph 1.1 of this Amendment No. 8. This specific
waiver applies only to the above-specified write off of goodwill.
3. Representations and Warranties. The Borrower
represents and warrants that: (a) this Amendment No. 8 is a legal, valid and
binding obligation of the Borrower enforceable against it in accordance with
its terms, except as the enforcement thereof may be subject to (i) the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium or similar
law affecting creditors' rights generally, and (ii) general principals of
equity (regardless of whether such enforcement is sought in a proceeding in
equity or at law); and (b) after giving effect to the execution of this
Amendment No. 8, no Default or Unmatured Default has occurred and is
continuing.
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4. Effective Date. Each waiver amendment contained in
this Amendment No. 8 shall become effective only upon receipt by the Agent
(with sufficient copies for the Lenders) of written agreement thereto by the
Agent, the Required Lenders and the Borrower. The date upon which the above
condition has been satisfied is the "Effective Date."
5. Effect of Amendment. Upon execution of this
Amendment No. 8 and the occurrence of the Effective Date, each reference in the
Credit Agreement to "this Agreement," "hereunder," "hereof," "herein," or words
like import, and each reference to the Credit Agreement in any of the other
Loan Documents shall mean and be a reference to the Credit Agreement as amended
hereby. Except as specifically set forth above, the Credit Agreement, the
Exhibits and Schedules thereto and the Notes shall remain unaltered and in full
force and effect and the respective terms, conditions or covenants thereof are
hereby in all respects ratified and confirmed.
6. Counterparts. This Amendment No. 8 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 instrument.
7. Governing Law. This Amendment No. 8 shall be
governed by and construed in accordance with the internal laws (and not the law
of conflicts) of the State of Illinois, but giving effect to federal laws
applicable to national banks.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 8 to be executed by their duly authorized representatives as of
the date first written above.
SPX CORPORATION
By: X. X. X'Xxxxx
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Title: Vice President Finance, Treasuer
and Chief Financial Officer
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THE FIRST NATIONAL BANK OF
CHICAGO, individually as a Lender and
as Agent
By: Xxxxxxxx X. Xxxxxx
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Title: Vice President
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THE BANK OF NEW YORK, as Lender
By: Xxxx X. Xxxxx, Xx.
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Title: Vice President
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XXX XXXX XX XXXX XXXXXX,
as Lender
By: F.C.H. Xxxxx
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Title: Senior Manager Loan Operations
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MICHIGAN NATIONAL BANK,
as Lender
By: Xxxxxx X. Xxxxxxxx
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Title: Relationship Manager
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SUMITOMO BANK, as Lender
By: Xxxxxxxx Xxxxx
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Title: Joint General Manager
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THE YASUDA TRUST & BANKING CO., LTD.,
as Lender
By: Xxxxxx X. Xxxx
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Title: Deputy General Manager
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MITSUBISHI TRUST & BANKING
CORPORATION, as Lender
By: Aaki Yamagishi
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Title: Chief Manager
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COMERICA BANK, as Lender
By: Xxxxx X. Xxxxxxxx
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Title: Vice President
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OLD KENT BANK, as Lender
By: Xxxxxxx X. Xxxxx
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Title: Vice President
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BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Lender
By: Xxxxxxxxx X. Xxxxx
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Title: Vice President
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