EXHIBIT ______
AMENDMENT AGREEMENT NO. 2
TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is made and entered into as of this 15th day of June, 1998,
by and among XXXXX INDUSTRIES, INC., a Delaware corporation (the "Borrower"),
the Lenders signatory hereto (the "Lenders") and NATIONSBANK, NATIONAL
ASSOCIATION, a national banking association and successor to NationsBank,
National Association (South), as Agent (the "Agent") for the Lenders party to
the Credit Agreement described below.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Agent and the Lenders have entered into an
Amended and Restated Credit Agreement dated May 15, 1997, as amended, (the
"Agreement"),pursuant to which the Lenders have agreed to make available to the
Borrower a revolving credit facility of up to $200,000,000; and
WHEREAS, as a condition to the making of loans the Lenders have required
that each Subsidiary of Borrower execute a Guaranty Agreement whereby it
guarantees payment of the Obligations arising under the Agreement; and
WHEREAS, the Borrower has requested and the Agent and the Lenders party
hereto have agreed, subject to the terms and conditions of this Amendment, to
amend certain provisions of the Agreement as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions herein set forth, it is hereby agreed as follows:
1. Definitions. The term "Agreement" as used herein and in the Loan
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Documents shall mean the Agreement as hereby amended and as from time to time
further amended or modified. Unless the context otherwise requires, all
capitalized terms used herein without definition shall have the respective
meanings provided therefor in the Agreement.
2. Amendment to Credit Agreement. Subject to the conditions set forth
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herein, the Agreement is amended, effective as of the date hereof, as follows:
(a) Section 9.2 of the Agreement is amended by deleting from clause
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(iii) the phrase "shall not exceed 50,000,000 in the aggregate for any
Fiscal Year," and inserting the phrase "shall not exceed 30% of
Consolidated Net Worth for any Fiscal Year," and by deleting from clause
(iv) the phrase Aif the Cost of the Acquisition exceeds $25,000,000," and
inserting the phrase "if the Cost of the Acquisition exceeds 15% of
Consolidated Net Worth,"
(b) Section 9.3 of the Agreement is amended in its entirety to read as
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follows:
"9.3 Capital Expenditures". Make or become committed to make
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Capital Expenditures in an amount which in the aggregate exceeds 30% of the
Consoldiated EBITDA for the most recently completed Fiscal Year as reported
in the most recent year-end financial reports delivered to the Agent
pursuant to Section 8.1 (on a noncumulative basis, with the effect that
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amounts not expended in any Fiscal Year may not be carried forward to a
subsequent period);"
(c) Section 9.5 of the Agreement is amended by deleting clauses (f)
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and (g) in their entirety and inserting a new clause (f) in lieu thereof,
which clause shall read in its entirety as follows:
"(f) additional Indebtedness for Money Borrowed not otherwise
covered by clauses (a) through (e) above, which in the aggregate shall
not exceed 15% of Consolidated Total Assets at any time;"
(d) Section 9.6 of the Agreement is amended by deleting the phrase
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"not to exceed $1,500,000 in any Fiscal Year" and inserting the phrase "not
to exceed 5% of Consolidated Total Assets in any Fiscal Year;"
3. Guarantors. Each of the Guarantors has joined into the execution of
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this Amendment for the purpose of consenting to the amendments contained herein
and reaffirming its guaranty of the Obligations.
4. Borrower's Representations and Warranties. The Borrower hereby
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represents, warrants and certifies that:
(a) The representations and warranties made by it in Article VII of
the Agreement are true on and as of the date hereof before and after giving
effect to this Amendment except that the financial statements referred to
in Section 7.6(a) shall be those most recently furnished to each Lender
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pursuant to Section 8.1(a) and (b) of the Agreement;
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(b) The Borrower has the power and authority to execute and perform
this Amendment and has taken all action required for the lawful execution,
delivery and performance thereof.
(c) There has been no material adverse change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries since the date
of the most recent financial reports of the Borrower received by each
Lender under Section 8.1 of the Agreement, other than changes in the
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ordinary course of business, none of which has been a material adverse
change;
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(d) The business and properties of the Borrower and its Subsidiaries
are not, and since the date of the most recent financial report of the
Borrower and its Subsidiaries received by the Agent under Section 8.1 of
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the Agreement have not been, adversely affected in any substantial way as
the result of any fire, explosion, earthquake, accident, strike, lockout,
combination of workmen, flood, embargo, riot, activities of armed forces,
war or acts of God or the public enemy, or cancellation or loss of any
major contracts; and
(e) No event has occurred and no condition exists which, upon the
consummation of the transaction contemplated hereby, constitutes a Default
or an Event of Default on the part of the Borrower under the Agreement or
the Notes either immediately or with the lapse of time or the giving of
notice, or both.
5. Conditions to Effectiveness. This Amendment shall not be effective
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until the Agent has received to its satisfaction each of the following:
(a) receipt of twelve (12) counterparts of this Amendment Agreement
executed by the Borrower, the Guarantors, the Agent and the Required
Lenders.
(b) evidence that each Subsidiary and Material Foreign Subsidiary has
delivered the documentation described in Section 8.19 of the Agreement; and
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(c) such other documents, instruments and certificates as reasonably
requested by the Agent.
6. Entire Agreement. This Amendment sets forth the entire understanding
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and agreement of the parties hereto in relation to the subject matter hereof and
supersedes any prior negotiations and agreements among the parties relative to
such subject matter. None of the terms or conditions of this Amendment may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
7. Full Force and Effect of Agreement. Except as hereby specifically
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amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
8. Counterparts. This Amendment may be executed in any number of
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counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the day and year
first above written.
BORROWER:
XXXXX INDUSTRIES, INC.
WITNESS:
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
________________________ Title: Vice President and CFO
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GUARANTORS:
AMOT CONTROLS CORPORATION
AMOT/METRIX INVESTMENT COMPANY
AMOT SALES CORPORATION
COMPRESSOR CONTROLS CORPORATION (an Iowa
corporation)
COMPRESSOR CONTROLS CORPORATION (a Delaware
corporation) d/b/a Compressor Controls Corporation
- CIS/EE in Iowa
CORNELL PUMP COMPANY
CORNELL PUMP MANUFACTURING CORPORATION
FLUID METERING, INC.
GATAN INTERNATIONAL, INC.
GATAN, INC.
GATAN SERVICE CORPORATION
ISL INTERNATIONAL, INC.
ISL NORTH AMERICA, INC.
MOLECULAR IMAGING CORPORATION
PREX CORPORATION
XXXXX ACQUISITION, INC.
XXXXX HOLDINGS, INC.
XXXXX INDUSTRIAL PRODUCTS INVESTMENT CO.
XXXXX INTERNATIONAL, INC.
XXXXX INTERNATIONAL PRODUCTS, LTD.
XXXXX PUMP COMPANY
USON CORPORATION
PETROTECH, INC.
PRINCETON INSTRUMENTS, INC.
FTI FLOW TECHNOLOGY, INC.
ACTON RESEARCH CORPORATION
PHOTOMETRICS, LTD.
WITNESS:
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
__________________________ Title: Vice President and CFO
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INTEGRATED DESIGNS L.P.
By Compressor Controls Corporation,
an Iowa corporation and its sole general
partner
WITNESS:
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
--------------------------- Title: Vice President & Assistant Secretary
METRIX INSTRUMENT CO., L.P.
By AMOT Sales Corporation, its sole general
partner
WITNESS:
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
___________________________ Title: Vice President & Assistant Secretary
PREX L.P.
By Compressor Controls Corporation, an Iowa
corporation and its sole general partner
WITNESS:
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
--------------------------- ---------------------------------------
Name: Xxxxxx X. Xxxxxxx
___________________________ Title: Vice President & Assistant Secretary
USON L.P.
By Compressor Controls Corporation,
an Iowa corporation and its sole general
partner
WITNESS:
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
___________________________ Title: Vice President & Assistant Secretary
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AGENT:
NATIONSBANK, NATIONAL ASSOCIATION, as Agent for
the Lenders
By: /s/ Xxxx XxXxxxx
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Name: Xxxx XxXxxxx
Title Vice President
LENDERS:
NATIONSBANK, NATIONAL ASSOCIATION
By: /s/ Xxxx XxXxxxx
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Name: Xxxx XxXxxxx
Title: Vice President
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Corporate Finance Officer
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SUNTRUST BANK, ATLANTA
By: /s/ R. Xxxxxxx Xxxxxx
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Name: R. Xxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: B.O.
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ABN AMRO BANK NV
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Group Vice President
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
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SCOTIABANC INC.
By: /s/ P.M. Xxxxx
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Name: P.M. Xxxxx
Title: Relationship Manager
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CREDIT LYONNAIS ATLANTA AGENCY
By: ________________________________
Name: ______________________________
Title: _____________________________
00
XXXXXXXX XXXX XX XXXXXXX, N.A.
By: /s/ Xxxxxxx X. XxXxxxx
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Name: Xxxxxxx X. XxXxxxx
Title: Vice President
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XXXXXX XXXXXXX & CO. LIMITED
By: /s/ MJC Xxxxx
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Name: MJC Xxxxx
Title: Authorized Signatory
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THE SUMITOMO BANK, LIMITED
By: /s/ X.X. Xxxxxxxx
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Name: X.X. Xxxxxxxx
Title: Vice President N.Y. Office
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Senior Vice President &
Regional Manager (East)
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THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
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THE SANWA BANK, LIMITED, acting through its
New York Branch on behalf of its Atlanta
Agency
By: /s/ X. Xxxxxxxx Wu
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Name: X. Xxxxxxxx Wu
Title: Vice President
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