EXECUTION COPY
FOURTH AMENDMENT TO
CREDIT AGREEMENT
Fourth Amendment (this "Amendment") dated as of
May 3, 1995 among Imo Industries Inc. (with its successors and
permitted assigns, the "Borrower") and the undersigned Lenders
(as defined below), to the Credit Agreement dated as of August 5,
1994 (as previously amended by the First Amendment thereto dated
as of November 18, 1994, the Second Amendment thereto dated as of
January 11, 1995, and the Third Amendment thereto dated as of
February 17, 1995, and as such agreement may be further amended,
supplemented or modified from time to time, the "Credit
Agreement") among the Borrower, ▇▇▇▇▇ Corporation ("▇▇▇▇▇"), Varo
Inc. ("Varo"), ▇▇▇▇▇▇ Pumps Inc., the institutions from time to
time party thereto as lenders (the "Lenders"), the institutions
from time to time party thereto as issuing banks (the "Issuing
Banks"), and Citibank, N.A., in its capacity as agent and
collateral agent for the Lenders and the Issuing Banks (in such
capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to amend the Credit
Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the above premises,
the Borrower and the undersigned Lenders agree as follows:
SECTION 1. Defined Terms. Capitalized terms used
herein without definition shall have the meanings ascribed to
such terms in the Credit Agreement.
SECTION 2. Amendment of Section 9.01.
(a) Clause (ix) of Section 9.01 of the Credit
Agreement is, effective as of the Amendment Effective Date,
hereby amended to read in full as follows:
(ix) Indebtedness under appeal bonds in connection with
judgments which do not result in an Event of Default or
Default or any other breach hereunder; provided that,
notwithstanding the foregoing, the Borrower may create and
become liable with respect to an appeal bond in an amount of
up to $18,000,000 in connection with the case titled
International Insurance Company, Plaintiff vs. Red and White
Company, Transamerica Corp., Transamerica
Delaval, Inc., Imo Delaval, Inc. and Does 1 to 100,
inclusive, Defendants; and
(b) Clause (xiii) of Section 9.01 of the Credit
Agreement is, effective as of the Amendment Effective Date,
hereby amended to read in full as follows:
(xiii) Indebtedness incurred by an Unrestricted
Subsidiary; provided that such Indebtedness (i) is not
guaranteed or otherwise supported in whole or part
(other than pursuant to (x) one or more Permitted
Existing Accommodation Obligations or (y) the
Accommodation Obligations permitted pursuant to Section
9.05(viii)) by the Borrower or any Restricted
Subsidiary and (without limiting the generality of the
foregoing, but subject to the immediately preceding
parenthetical clause) neither the Borrower nor any
Restricted Subsidiary has any liability (contractual or
otherwise) in respect of such Indebtedness and (ii) is
not secured in whole or in part by any asset of the
Borrower or any Restricted Subsidiary;
SECTION 3. Amendment of Section 9.05. Section 9.05 of
the Credit Agreement is, effective as of the Amendment Effective
Date, hereby amended (x) by deleting the word "and" immediately
following clause (vii) thereof, (y) replacing the period at the
end of the clause (vii) of such Section with ";", and
(z) inserting the following clauses (viii) and (ix) at the end of
such Section:
(viii) Accommodation Obligations of the Borrower in
respect of obligations of any Unrestricted Subsidiary;
provided that the aggregate amount of such
Accommodation Obligations shall not exceed $12,000,000
at any one time outstanding; and
(ix) appeal bonds permitted in accordance with clause
(ix) of Section 9.01.
SECTION 4. Waiver. Effective as of the Amendment
Effective Date and continuing through the end of the applicable
appeal period, the undersigned Lenders hereby waive any Default
arising out of any judgment in an amount of up to $12,000,000
which may be rendered against the Borrower in the case referred
to in the proviso to Section 9.01(ix) of the Credit Agreement.
SECTION 5. Conditions Precedent to the Effectiveness
of this Amendment. This Amendment shall become effective as of
the date hereof on the date (the "Amendment Effective Date") when
the following conditions precedent have been satisfied (unless
waived by the Lenders):
5.01 The Agent shall have received a copy of this
Amendment duly executed by the Borrower and the Requisite
Lenders.
5.02 Each of the representations and warranties of the
Borrower and the Guarantors contained in the Credit Agreement and
in the other Loan Documents shall be true and correct on and as
of the Amendment Effective Date, except to the extent that any
such representation or warranty expressly relates to a prior
date, in which case, such representation and warranty shall be
true and correct as of such earlier date.
5.03 All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with
the transactions contemplated by this Amendment, shall be
satisfactory in all respects in form and substance to the Agent.
5.04 No Default or Event of Default shall have
occurred and be continuing on the Amendment Effective Date.
5.05 All fees and expenses payable on or prior to the
Amendment Effective Date shall have been paid to the Lenders, the
Issuing Banks and the Agent.
SECTION 6. Representations and Warranties. The
Borrower hereby represents and warrants to the Lenders, the
Issuing Banks and the Agent that (a) as of the date hereof no
Default or Event of Default under the Credit Agreement shall have
occurred and be continuing and (b) all of the representations and
warranties of the Borrower and the Guarantors contained in the
Credit Agreement and in any other Loan Document continue to be
true and correct as of the date of execution hereof, as though
made on and as of such date, except to the extent that such
representations or warranties expressly relate to prior dates, in
which case, such representations and warranties shall be true and
correct as of such earlier dates.
SECTION 7. Reference to and Effect on the Loan
Documents.
7.01 Upon the effectiveness of this Amendment, on and
after the date hereof, each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof" or words of like import,
and each reference in the other Loan Documents to the Credit
Agreement, shall mean and be a reference to the Credit Agreement
as amended hereby.
7.02 Except as specifically amended above, all of the
terms of the Credit Agreement and all other Loan Documents shall
remain unchanged and in full force and effect.
7.03 The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of any Lender, any
Issuing Bank or the Agent, nor constitute a waiver of any
provision of the Credit Agreement or any of the Loan Documents.
SECTION 8. Costs and Expenses. The Borrower agrees to
pay on demand in accordance with the terms of Section 14.02 of
the Credit Agreement all costs and expenses in connection with
the preparation, reproduction, execution and delivery of this
Amendment, including the reasonable fees and out-of-pocket
expenses of Sidley & Austin, counsel for the Agent.
SECTION 9. Execution in Counterparts. This Amendment
may be executed and delivered in any number of counterparts and
by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original
and all of which taken together shall constitute one and the same
original agreement.
SECTION 10. Governing Law. THIS AMENDMENT SHALL BE
INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO
DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, this Amendment has been duly
executed on the date set forth above.
IMO INDUSTRIES INC.
By:/s/ ▇.▇. ▇▇▇▇▇▇
Name:
Title: Vice President and Treasurer
CITIBANK, N.A., as Agent and as
a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇. Freeeman
Name:
Title: Vice President
THE BANK OF NEW YORK COMMERCIAL
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
Title: V.P. Commercial Finance
▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
Title: VP
NATIONAL WESTMINSTER BANK Plc
By:/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
Name:
Title: Senior Vice President
SANWA BUSINESS CREDIT CORPORATION
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
Title: Vice President
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
Title: Vice President
Acknowledged and agreed
to:
▇▇▇▇▇ CORPORATION
By:/s/ ▇.▇. ▇▇▇▇▇▇
Name:
Title: Vice President and Treasurer
VARO INC.
By:/s/ ▇.▇. ▇▇▇▇▇▇
Name:
Title: Vice President and Treasurer
▇▇▇▇▇▇ PUMPS INC.
By:/s/ ▇.▇. ▇▇▇▇▇▇
Name:
Title: Vice President, Chief Financial Officer
and Treasurer
EXECUTION COPY
FIFTH AMENDMENT TO
CREDIT AGREEMENT
Fifth Amendment (this "Amendment") dated as of
August 14, 1995 among Imo Industries Inc. (with its successors
and permitted assigns, the "Borrower") and the undersigned
Lenders (as defined below), to the Credit Agreement dated as of
August 5, 1994 (as previously amended by the First Amendment
thereto dated as of November 18, 1994, the Second Amendment
thereto dated as of January 11, 1995, the Third Amendment thereto
dated as of February 17, 1995, the Fourth Amendment thereto dated
as of May 3, 1995, and as such agreement may be further amended,
supplemented or modified from time to time, the "Credit
Agreement") among the Borrower, ▇▇▇▇▇ Corporation ("▇▇▇▇▇"), Varo
Inc. ("Varo"), ▇▇▇▇▇▇ Pumps Inc., the institutions from time to
time party thereto as lenders (the "Lenders"), the institutions
from time to time party thereto as issuing banks (the "Issuing
Banks"), and Citibank, N.A., in its capacity as agent and
collateral agent for the Lenders and the Issuing Banks (in such
capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to amend the Credit
Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the above premises,
the Borrower and the undersigned Lenders agree as follows:
SECTION 1. Defined Terms. Capitalized terms used
herein without definition shall have the meanings ascribed to
such terms in the Credit Agreement.
SECTION 2. Amendment of Section 9.03. Section 9.03 of
the Credit Agreement is, effective as of the Amendment Effective
Date, hereby amended by (x) deleting the word "and" immediately
following clause (ix) thereof; (y) replacing the period at the
end of the clause (x) with "; and", and (z) inserting the
following clause at the end of such section:
(xi) Liens granted by the Borrower on bank deposits
denominated in Dollars supporting loans by banks in China in
connection with the joint venture in China between the
Borrower, through its ▇▇▇▇▇ Controls Division, and Xiangfan
▇▇▇▇ ▇▇▇▇ Motor Instrument Co., Ltd.; provided that such
deposits shall be in an aggregate amount not to exceed
$2,000,000.
SECTION 3. Amendment of Section 9.04. Section 9.04 of
the Credit Agreement is, effective as of the Amendment Effective
Date, hereby amended by (x) replacing the period at the end of
clause (x) with a semicolon, (y) replacing the period at the end
of clause (xi) of such Section with "; and", and (z) inserting
the following clause (xii) at the end of such Section:
(xii) Investments by the Borrower in the joint venture
in China between the Borrower, through its ▇▇▇▇▇ Controls
Division, and Xiangfan ▇▇▇▇ ▇▇▇▇ Motor Instrument Co., Ltd.;
provided, that the aggregate amount of such Investments,
determined with respect to each such Investment at the time
such Investment is made, shall not exceed $2,000,000.
SECTION 4. Amendment of Section 9.05. Section 9.05 of
the Credit Agreement is, effective as of the Amendment Effective
Date, hereby amended by (x) deleting the word "and" immediately
following clause (viii) thereof, (y) replacing the period at the
end of clause (ix) of such Section with "; and", and (z)
inserting the following clause at the end of such Section:
(x) Accommodation Obligations of the Borrower
consisting of letters of credit, guaranties and/or
cross-guaranties of loans by banks in China to the
joint venture in China between the Borrower, through
its ▇▇▇▇▇ Controls Division, and Xiangfan ▇▇▇▇ ▇▇▇▇
Motor Instrument Co., Ltd.; provided, that the
aggregate amount of such Accommodation Obligations
shall not exceed $4,000,000 at any one time
outstanding.
SECTION 5. Amendment of Section 9.09. Section 9.09 of
the Credit Agreement is, effective as of the Amendment Effective
Date, hereby amended by inserting the following at the end of
clause (b) of such Section:
, other than the joint venture in China between
the Borrower, through its ▇▇▇▇▇ Controls Division, and
Xiangfan ▇▇▇▇ ▇▇▇▇ Motor Instrument Co., Ltd.
SECTION 6. Conditions Precedent to the Effectiveness
of this Amendment. This Amendment shall become effective as of
the date hereof on the date (the "Amendment Effective Date") when
the following conditions precedent have been satisfied (unless
waived by the Lenders):
6.01 The Agent shall have received a copy of this
Amendment duly executed by the Borrower and the Requisite
Lenders.
6.02 Each of the representations and warranties of the
Borrower and the Guarantors contained in the Credit Agreement and
in the other Loan Documents shall be true and correct on and as
of the Amendment Effective Date, except to the extent that any
such representation or warranty expressly relates to a prior
date, in which case, such representation and warranty shall be
true and correct as of such earlier date.
6.03 All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with
the transactions contemplated by this Amendment, shall be
satisfactory in all respects in form and substance to the Agent.
6.04 No Default or Event of Default shall have
occurred and be continuing on the Amendment Effective Date.
6.05 All fees and expenses payable on or prior to the
Amendment Effective Date shall have been paid to the Lenders, the
Issuing Banks and the Agent.
SECTION 7. Representations and Warranties. The
Borrower hereby represents and warrants to the Lenders, the
Issuing Banks and the Agent that (a) as of the date hereof no
Default or Event of Default under the Credit Agreement shall have
occurred and be continuing and (b) all of the representations and
warranties of the Borrower and the Guarantors contained in the
Credit Agreement and in any other Loan Document continue to be
true and correct as of the date of execution hereof, as though
made on and as of such date, except to the extent that such
representations or warranties expressly relate to prior dates, in
which case, such representations and warranties shall be true and
correct as of such earlier dates.
SECTION 8. Reference to and Effect on the Loan
Documents.
8.01 Upon the effectiveness of this Amendment, on and
after the date hereof, each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof" or words of like import,
and each reference in the other Loan Documents to the Credit
Agreement, shall mean and be a reference to the Credit Agreement
as amended hereby.
8.02 Except as specifically amended above, all of the
terms of the Credit Agreement and all other Loan Documents shall
remain unchanged and in full force and effect.
8.03 The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of any Lender, any
Issuing Bank or the Agent, nor constitute a waiver of any
provision of the Credit Agreement or any of the Loan Documents.
SECTION 9. Costs and Expenses. The Borrower agrees to
pay on demand in accordance with the terms of Section 14.02 of
the Credit Agreement all costs and expenses in connection with
the preparation, reproduction, execution and delivery of this
Amendment, including the reasonable fees and out-of-pocket
expenses of Sidley & Austin, counsel for the Agent.
SECTION 10. Execution in Counterparts. This Amendment
may be executed and delivered in any number of counterparts and
by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original
and all of which taken together shall constitute one and the same
original agreement.
SECTION 11. Governing Law. THIS AMENDMENT SHALL BE
INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO
DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, this Amendment has been duly
executed on the date set forth above.
IMO INDUSTRIES INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇
Name:
Title: Vice President and Treasurer
CITIBANK, N.A., as Agent and as
a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
Title: Vice President
THE BANK OF NEW YORK COMMERCIAL
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
Title: V.P. Commercial Finance
▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name:
Title: V.P.
NATIONAL WESTMINSTER BANK Plc
By:/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
Name:
Title: Senior Vice President
SANWA BUSINESS CREDIT CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
Title: Vice President
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
Title: Vice President
Acknowledged and agreed
to:
▇▇▇▇▇ CORPORATION
By:/s/ ▇.▇. ▇▇▇▇▇▇
Name:
Title: Vice President & Treasurer
VARO INC.
By:/s/ ▇.▇. ▇▇▇▇▇▇
Name:
Title: Vice President & Treasurer
▇▇▇▇▇▇ PUMPS INC.
By:/s/ ▇.▇. ▇▇▇▇▇▇
Name:
Title: Vice President, Chief Financial
Officer and Treasurer
EXECUTION COPY
SIXTH AMENDMENT TO
CREDIT AGREEMENT
Sixth Amendment (this "Amendment") dated as of
December 11, 1995 among Imo Industries Inc. (with its successors
and permitted assigns, the "Borrower") and the undersigned
Lenders (as defined below), to the Credit Agreement dated as of
August 5, 1994 (as previously amended by the First Amendment
thereto dated as of November 18, 1994, the Second Amendment
thereto dated as of January 11, 1995, the Third Amendment thereto
dated as of February 17, 1995, the Fourth Amendment thereto dated
as of May 3, 1995, and the Fifth Amendment thereto dated as of
August 14, 1995, and as such agreement may be further amended,
supplemented or modified from time to time, the "Credit
Agreement") among the Borrower, ▇▇▇▇▇ Corporation ("▇▇▇▇▇"), Varo
Inc. ("Varo"), ▇▇▇▇▇▇ Pumps Inc., the institutions from time to
time party thereto as lenders (the "Lenders"), the institutions
from time to time party thereto as issuing banks (the "Issuing
Banks"), and Citibank, N.A., in its capacity as agent and
collateral agent for the Lenders and the Issuing Banks (in such
capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to amend the Credit
Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the above premises,
the Borrower and the undersigned Lenders agree as follows:
SECTION 1. Defined Terms. Capitalized terms used
herein without definition shall have the meanings ascribed to
such terms in the Credit Agreement.
SECTION 2. Amendment of Section 1.01.
(a) The definition of "Borrowing Base" contained in
Section 1.01 of the Credit Agreement is, effective as of the
Amendment Effective Date, hereby amended to read in full as
follows:
"Borrowing Base" means, as of any date of determina
tion, an amount equal to (i) eighty-five percent (85%) of
the face amount of (x) Eligible Receivables (net of maximum
discounts, allowances, retainage and any other amounts
deferred with respect thereto) of the Borrower at such time
plus (y) Eligible Receivables (net of maximum discounts,
allowances, retainage and any other amounts deferred with
respect thereto) of ▇▇▇▇▇▇ Pumps at such time, plus (ii) the
applicable percentage(s) set forth in Schedule 1.01.8 of (x)
Eligible Raw Materials of the Borrower at such time and (y)
Eligible Raw Materials of ▇▇▇▇▇▇ Pumps at such time, plus
(iii) the applicable percentage(s) set forth in Schedule
1.01.8 of (x) Eligible Work In Process of the Borrower at
such time plus (y) Eligible Work In Process of ▇▇▇▇▇▇ Pumps
at such time, plus (iv) the applicable percentage(s) set
forth in Schedule 1.01.8 of (x) Eligible Finished Goods of
the Borrower at such time plus (y) Eligible Finished Goods
of ▇▇▇▇▇▇ Pumps at such time, plus (v) one hundred percent
(100%) of the aggregate amount of cash proceeds of
Collateral on deposit in the Concentration Account and the
Investment Account at such time, plus (vi) the lesser of (x)
one hundred percent (100%) of the aggregate values set forth
in Schedule 1.01.12 of Eligible Fixed Assets at such time
and (y) $20,000,000. For purposes of this definition,
Eligible Receivables, Eligible Raw Materials, Eligible
Finished Goods, Eligible Work In Process and Eligible Fixed
Assets, as of any date of determination, shall be determined
after deduction of all Eligibility Reserves then effective
with respect to such items.
(b) The definition of "Borrowing Base Certificate"
contained in Section 1.01 of the Credit Agreement is, effective
as of the Amendment Effective Date, hereby amended to read in
full as follows:
"Borrowing Base Certificate" means a certificate, in
substantially the form of Exhibit C attached hereto and made
a part hereof, setting forth Eligible Receivables, Eligible
Raw Materials, Eligible Work In Process, Eligible Finished
Goods and Eligible Fixed Assets.
(c) The definition of "Consolidated Net Worth"
contained in Section 1.01 of the Credit Agreement is, effective
as of the Amendment Effective Date, hereby amended to read in
full as follows:
"Consolidated Net Worth" means, with respect to any
Person, at any time, (i) consolidated stockholders' equity
of such Person and its consolidated Subsidiaries, determined
in accordance with GAAP, plus (ii) any minimum pension
liability adjustment applicable to such Person in accordance
with GAAP plus (iii) any negative (or minus any positive)
cumulative foreign currency translation adjustments
applicable to such Person in accordance with GAAP; provided
that, in calculating Consolidated Net Worth for purposes of
Section 10.01, any increase in Consolidated Net Worth
resulting from the sale of Roltra-▇▇▇▇▇ S.p.A. or Varo's
electronic systems division shall be excluded.
(d) The definition of "EBITDA" contained in Section
1.01 of the Credit Agreement is, effective as of the Amendment
Effective Date, hereby amended to read in full as follows:
"EBITDA" means, for any period on a consolidated basis
for any Person and its Subsidiaries, (i) the sum of the
amounts for such period for such Person and its Subsidiaries
on a consolidated basis of (A) Consolidated Net Income, (B)
depreciation, amortization expense and other non-cash
charges, (C) Consolidated Cash Interest Expense, (D) charges
for federal, state, local and foreign income taxes, (E)
extraordinary losses which have been deducted in the
determination of Consolidated Net Income and (F) net income
(if any) of less than wholly-owned Subsidiaries which has
been attributed to minority interests in accordance with
GAAP, minus (ii) extraordinary gains not already excluded
from the determination of Consolidated Net Income, minus
(iii) net loss (if any) of less than wholly-owned
Subsidiaries which has been attributed to minority interests
in accordance with GAAP; provided that, in calculating
EBITDA for purposes of determining Excess Cash Flow, the
Fixed Charge Coverage Ratio and the Interest Coverage Ratio,
any increase in EBITDA resulting from the sale of Roltra-
▇▇▇▇▇ S.p.A or Varo's electronic systems division shall be
excluded.
(e) The following definition of "Eligible Fixed
Assets" is, effective as of the Amendment Effective Date, hereby
inserted into Section 1.01 of the Credit Agreement in the
appropriate alphabetical order:
"Eligible Fixed Assets" means Property of the Borrower
set forth in Schedule 1.01.12 (i) with respect to which the
Agent has a valid and perfected first priority Lien,
(ii) with respect to which no warranty contained in any of
the Loan Documents has been breached and (iii) which the
Agent, in its reasonable credit judgment, deems to be
Eligible Fixed Assets, based on such credit and collateral
considerations as the Agent may deem appropriate.
(f) The definition of "Eligible Receivable" contained
in Section 1.01 of the Agreement is, effective as of the
Amendment Effective Date, hereby amended by deleting the proviso
at the end of such definition and by replacing the semicolon
immediately preceding such proviso with a period.
(g) The definition of "Eligibility Reserves" contained
in Section 1.01 of the Agreement is, effective as of the
Amendment Effective Date, hereby amended to read in full as
follows:
"Eligibility Reserves" means, as of five (5) days after
the date of written notice of any determination thereof to
the Borrower by the Agent, or to the Borrower and the Agent
by the Class A Requisite Lenders, such amounts as the Agent,
or the Class A Requisite Lenders, as the case may be, in the
exercise of its or their reasonable credit judgment and in
accordance with its or their customary criteria, may from
time to time establish against the gross amounts of Eligible
Receivables, Eligible Raw Materials, Eligible Work In
Process, Eligible Finished Goods and Eligible Fixed Assets
to reflect risks or contingencies arising after the Closing
Date which may affect such items and which have not already
been taken into account in the determination of Eligible
Receivables, Eligible Raw Materials, Eligible Work In
Process, Eligible Finished Goods or Eligible Fixed Assets,
as the case may be.
(h) The definition of "Revolving Credit Commitment"
contained in Section 1.01 of the Credit Agreement is, effective
as of the Amendment Effective Date, hereby amended to read in
full as follows:
"Revolving Credit Commitment" means, with respect to
any Lender, the obligation of such Lender to make Revolving
Loans and to participate in Letters of Credit and Swing
Loans pursuant to the terms and conditions hereof, which
obligation shall not exceed the principal amount set forth
opposite such Lender's name under the heading "Revolving
Credit Commitment" on Schedule 1.01.1 or the signature page
of the Assignment and Acceptance by which it became a
Lender, as modified from time to time pursuant to the terms
hereof or to give effect to any applicable Assignment and
Acceptance, and "Revolving Credit Commitments" means the
aggregate principal amount of the Revolving Credit
Commitments of all the Lenders, the maximum aggregate
principal amount of which shall not exceed $60,000,000, as
reduced from time to time pursuant to the terms hereof.
(i) The following new definitions are, effective as of
the Amendment Effective Date, hereby added to Section 1.01 of the
Credit Agreement in the appropriate alphabetical order:
"Letter of Credit Availability" means, at any
particular time, the amount by which the Letter of Credit
Sublimit exceeds the Letter of Credit Obligations
outstanding at such time.
"Letter of Credit Sublimit" means thirty million
Dollars ($30,000,000).
(j) The definitions of "Eligible Letter of Credit" and
"Release Status" contained in Section 1.01 of the Credit
Agreement are, effective as of the Amendment Effective Date,
hereby deleted in their entirety.
SECTION 3. Amendment of Section 2.04. The preamble to
Section 2.04 of the Credit Agreement is, effective as of the
Amendment Effective Date, hereby amended to read in full as
follows:
2.04. Letters of Credit. Subject to the terms and
conditions set forth herein, each Issuing Bank hereby
severally agrees to Issue for the account of the Borrower
one or more Letters of Credit, up to an aggregate face
amount with respect to all Issuing Banks at any time
outstanding equal to the Letter of Credit Availability,
subject to the following provisions:
SECTION 4. Amendment of Section 3.01.
The first sentence of Section 3.01(c)(i) of the Credit Agreement
is, effective as of the Amendment Effective Date, hereby amended
to read in full as follows:
(c) Mandatory Prepayments of Revolving Loans. (i)
Immediately, if (x) the Revolving Credit Obligations are
greater than the Maximum Revolving Credit Amount or (y) the
aggregate amount of the Swing Loans, the Revolving Loans and
the Reimbursement Obligations, is greater than the amount of
the Swing Loans, the Revolving Loans or the Reimbursement
Obligations, as the case may be, permitted to exist at such
time in accordance with the terms of the 12% Debenture
Indenture or the 12.25% Debenture Indenture, the Borrower
shall make a mandatory repayment of the Revolving Credit
Obligations in an amount equal to such excess, such amount
to be applied in accordance with Section 3.02.
SECTION 5. Amendment of Section 4.03.
Section 4.03(a)(ii) of the Credit Agreement is, effective as of
the Amendment Effective Date, hereby amended to read in full as
follows:
(ii) [intentionally omitted], and
SECTION 6. Amendment of Section 9.17. Section 9.17 of
the Credit Agreement is, effective as of the Amendment Effective
Date, hereby amended by replacing the reference in the first
proviso thereof to "$40,000,000" with "$80,000,000".
SECTION 7. Amendment of Article 10.
(a) Section 10.01 of the Credit Agreement is,
effective as of the Amendment Effective Date, hereby amended to
read in full as follows:
10.01. Minimum Consolidated Net Worth. The
Consolidated Net Worth of the Borrower and its Subsidiaries
at all times during any period set forth below shall
not be less than the minimum amount set forth opposite such
period:
Period Minimum Amount
From September 30, 1995 to but
excluding December 31, 1995 $ 0
From December 31, 1995 to but
excluding March 31, 1996 $ 0
From March 31, 1996 to but
excluding June 30, 1996 $ 4,300,000
From June 30, 1996 to but
excluding September 30, 1996 $ 7,400,000
From September 30, 1996 to but
excluding December 31, 1996 $10,300,000
From December 31, 1996 to but
excluding March 31, 1997 $13,900,000
From March 31, 1997 to but
excluding June 30, 1997 $18,400,000
From June 30, 1997 to but
excluding September 30, 1997 $22,900,000
(b) Section 10.02 of the Credit Agreement is,
effective as of the Amendment Effective Date, hereby amended to
read in full as follows:
10.02. Minimum Fixed Charge Coverage Ratio. The Fixed Charge
Coverage Ratio of the Borrower and its Subsidiaries (other than Varo,
▇▇▇▇▇ and their respective Subsidiaries) on a consolidated basis, as
determined as of the last day of each fiscal quarter of the Borrower
set forth below for the twelve month period ending on such date, shall
not be less than the minimum ratio set forth opposite such fiscal
quarter:
Fiscal Quarter Minimum Ratio
Fourth fiscal quarter of 1995 1.10 to 1
First fiscal quarter of 1996 1.00 to 1
Second fiscal quarter of 1996 0.40 to 1
Third fiscal quarter of 1996 0.60 to 1
Fourth fiscal quarter of 1996 1.20 to 1
First fiscal quarter of 1997 1.20 to 1
Second fiscal quarter of 1997 1.20 to 1
(c) Section 10.03 of the Credit Agreement is,
effective as of the Amendment Effective Date, hereby amended to
read in full as follows:
10.03. Minimum Interest Coverage Ratio.
The Interest Coverage Ratio of the Borrower and its
Subsidiaries (other than Varo, ▇▇▇▇▇ and their respective
Subsidiaries) on a consolidated basis, as determined as of the
last day of each fiscal quarter of the Borrower set forth below
for the twelve month period ending on such date, shall not be
less than the minimum ratio set forth opposite such fiscal
quarter:
Fiscal Quarter Minimum Ratio
Fourth fiscal quarter of 1995 1.55 to 1
First fiscal quarter of 1996 1.60 to 1
Second fiscal quarter of 1996 1.65 to 1
Third fiscal quarter of 1996 1.75 to 1
Fourth fiscal quarter of 1996 2.00 to 1
First fiscal quarter of 1997 2.40 to 1
Second fiscal quarter of 1997 2.50 to 1
SECTION 8. Amendment of Section 11.01.
Section 11.01(a) of the Credit Agreement is, effective as of the
Amendment Effective Date, hereby amended to read in full as
follows:
(a) Failure to Make Payments When Due. The Borrower
shall fail to pay (i) when due any principal or interest on
the Loans (including the Reimbursement Obligations) or (ii)
any other Obligation, and if such non-payment relates (x) to
interest, such non-payment continues for a period of three
(3) days after the due date thereof or (y) to a mandatory
prepayment under Section 3.01(c)(i)(y), such non-payment
continues for a period of thirty (30) days after the due
date thereof or (z) to Obligations other than interest or
principal, such non-payment continues for a period of five
(5) Business Days after the due date thereof.
SECTION 9. Amendment of Section 13.09.
Section 13.09(c)(i)(B) of the Credit Agreement is, effective as
of December 31, 1994, hereby amended to read in full as follows:
(B) [intentionally omitted]; and
SECTION 10. Amendment of Schedule 1.01.1. Section C
of Schedule 1.01.1 to the Credit Agreement is, effective as of
the Amendment Effective Date, hereby amended to read in full as
follows:
C. Revolving Credit Commitment
Citibank, N.A. $ 8,571,428.58
The Bank of New York Commercial Corporation $ 8,571,428.57
General Electric Capital Corporation $ 8,571,428.57
▇▇▇▇▇▇ Financial, Inc. $ 8,571,428.57
National Westminster Bank Plc $ 8,571,428.57
Sanwa Business Credit Corporation $ 8,571,428.57
Transamerica Business Credit Corporation $ 8,571,428.57
SECTION 11. New Schedule 1.01.12. Effective as of the
Amendment Effective Date, Schedule 1.01.12 to this Amendment is
hereby added to the Credit Agreement as Schedule 1.01.12 thereto.
SECTION 12. Amendment of Exhibit C. Exhibit C to the
Credit Agreement is, effective as of the Amendment Effective
Date, hereby replaced with Exhibit C hereto.
SECTION 13. Waiver.
13.01 Pursuant to Section 10.01 of the Credit
Agreement the Borrower agreed to comply with certain requirements
regarding the Minimum Consolidated Net Worth of the Borrower,
with which requirements the Borrower is not and has not been in
compliance. To the extent that the Borrower's failure to comply
with Section 10.01 of the Credit Agreement during the period from
and including November 1, 1995 to and including the Amendment
Effective Date constitutes a Default or Event of Default, as the
case may be, under the Credit Agreement, such Default or Event of
Default is, effective as of the Amendment Effective Date, hereby
waived by the undersigned Lenders.
13.02 To the extent that the Borrower's redemption of
up to $80,000,000 aggregate principal amount of the 12.25%
Debentures constitutes a Default or Event of Default, as the case
may be, under the Credit Agreement, such Default or Event of
Default is, effective as of the Amendment Effective Date, hereby
waived by the undersigned Lenders.
SECTION 14. Conditions Precedent to the Effectiveness
of this Amendment. This Amendment shall become effective as of
the date hereof on the date (the "Amendment Effective Date") when
the following conditions precedent have been satisfied (unless
waived by the undersigned Lenders):
14.01 The Agent shall have received on or before the
Amendment Effective Date all of the following, all of which,
except as otherwise specifically described below, shall be in
form and substance satisfactory to the Agent and the undersigned
and in sufficient copies for each of the Lenders party to this
Amendment:
(i) This Amendment duly executed by the Borrower and
each of the Lenders which is set forth on the signature
pages hereto;
(ii) New Revolving Credit Notes dated the Amendment
Effective Date and made by the Borrower in favor of the
Revolving Credit Lenders in the aggregate principal amount
of $60,000,000 evidencing the Obligations to repay the
Revolving Loans;
(iii) Any amendments to the Real Property Security
Documents listed in Section C of the List of Closing
Documents attached to the Credit Agreement as Exhibit F (the
"Closing List") which the Agent deems necessary or desirable
in connection with the increase in the aggregate Revolving
Credit Commitments from $50,000,000 to $60,000,000, together
with such endorsements to Title Policies, certified Surveys,
and local counsel opinions with respect thereto and such
other agreements, documents and instruments which the Agent
deems necessary or desirable;
(iv) A favorable opinion of Weil, Gotshal & ▇▇▇▇▇▇,
counsel to the Borrower and the Guarantors, dated the
Amendment Effective Date and addressed to the Agent, the
Lenders and the Issuing Banks, with respect to such matters
relating to this Amendment as the Agent may reasonably
request, including with respect to the 12% Debenture
Indenture and the 12.25% Debenture Indenture and a favorable
opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, general counsel of the Borrower
and the Guarantors, dated the Amendment Effective Date and
addressed to the Agent, the Lenders and the Issuing Banks,
with respect to such matters relating to this Amendment as
the Agent may reasonably request; without limiting the
foregoing, the Borrower and the Guarantors hereby direct
their counsel, Weil, Gotshal & ▇▇▇▇▇▇, and their general
counsel, ▇▇▇▇▇▇ ▇. ▇▇▇▇, to prepare and deliver to the
Agent, the Lenders, the Issuing Banks and Sidley & Austin,
such opinions;
(v) An updated Borrowing Base Certificate (including,
without limitation, information with respect to Eligible
Fixed Assets), certified as being true, accurate and
complete as of October 31, 1995 by the chief financial
officer, treasurer or controller of the Borrower;
(vi) Updated organizational documents, good standing
certificates and Assistant Secretarys' or Assistant Clerks'
certificates for the Borrower and the Guarantors in
substantially the respective forms delivered on the Closing
Date pursuant to Section D of the Closing List, with such
changes as the Agent may deem appropriate in connection with
this Amendment;
(vii) The Borrower shall have paid to the Agent, for
the account of the Revolving Credit Lenders in accordance
with their respective Revolving Credit Pro Rata Shares
(calculated after giving effect to the effectiveness of this
Amendment), an amendment fee in an amount equal to $150,000;
and
(viii) A certificate of an officer of the Borrower
dated the Amendment Effective Date certifying as to the
matters set forth in Sections 14.02 and 14.04 of this
Amendment and certifying as to the Solvency of the Borrower
and the Borrower's Subsidiaries after giving effect to the
transactions contemplated by this Amendment.
14.02 Each of the representations and warranties of
the Borrower and the Guarantors contained in the Credit Agreement
and in the other Loan Documents (other than any representations
and warranties relating to the Borrower's compliance with Section
10.01 of the Credit Agreement, or to the matters referred to in
Section 13.02 hereof) shall be true and correct on and as of the
Amendment Effective Date, except to the extent that any such
representation or warranty expressly relates to a prior date, in
which case, such representation and warranty shall be true and
correct as of such earlier date.
14.03 All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with
the transactions contemplated by this Amendment, shall be
satisfactory in all respects in form and substance to the Agent.
14.04 No Default or Event of Default (other than any
Default or Event of Default relating to the Borrower's compliance
with Section 10.01 or Section 9.17 of the Credit Agreement) shall
have occurred and be continuing on the Amendment Effective Date.
14.05 All fees and expenses payable on or prior to the
Amendment Effective Date shall have been paid to the Lenders, the
Issuing Banks and the Agent.
SECTION 15. Representations and Warranties. The
Borrower hereby represents and warrants to the Lenders, the
Issuing Banks and the Agent that (a) as of the date hereof no
Default or Event of Default under the Credit Agreement shall have
occurred and be continuing (other than with respect to Section
10.01 or Section 9.17 thereof), (b) all of the representations
and warranties of the Borrower and the Guarantors contained in
the Credit Agreement (other than any representations and
warranties relating to the Borrower's compliance with Section
10.01 of the Credit Agreement, or to the matters referred to in
Section 13.02 hereof) and in any other Loan Document continue to
be true and correct as of the date hereof, as though made on and
as of such date, except to the extent that such representations
or warranties expressly relate to prior dates, in which case,
such representations and warranties shall be true and correct as
of such earlier dates and (c) Imo Industries (UK) Limited ("Imo
UK") is a corporation duly organized, validly existing and in
good standing under the laws of the United Kingdom, (ii) is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction in which failure to
be so qualified and in good standing shall have or is reasonably
likely to have a Material Adverse Effect, (iii) has all requisite
corporate power and authority to own, operate and encumber its
Securities and other Property and to conduct its business as
presently conducted and as proposed to be conducted and (iv) has
all requisite corporate power and authority to execute, deliver
and perform this Amendment and to continue to perform its
obligations under (x) the English Pledge Agreement (as defined in
the List of Closing Documents attached to the Credit Agreement as
Exhibit F) and (y) any documents or instruments executed in
connection therewith. The execution, delivery and performance of
this Amendment have been duly authorized by all necessary
corporate action on the part of Imo UK, and this Amendment and
the English Pledge Agreement constitute the legal, valid and
binding obligations of Imo UK, enforceable against Imo UK in
accordance with their respective terms.
SECTION 16. Affirmation of Liens and Guaranties.
Notwithstanding anything contained in the Loan Documents (either
before, on or after the Amendment Effective Date), (i) each of
the Borrower, the Guarantors and Imo UK, by its signature below,
reaffirms the Liens and reconfirms the grant of the liens to the
Agent for the benefit of the Lenders and the Issuing Banks
pursuant to the Loan Documents executed by such Person, which
Liens shall continue in full force and effect during the term of
the Credit Agreement and any renewals thereof and shall continue
to secure the Obligations, and (ii) each of the Guarantors, in
its capacity as guarantor under its Guaranty, hereby consents to
the execution, delivery and performance of this Amendment, and
all of the other Loan Documents to be executed in connection
herewith, reaffirms its respective obligations under its Guaranty
and agrees that such Guaranty shall remain in full force and
effect.
SECTION 17. Reference to and Effect on the Loan
Documents.
17.01 Upon the effectiveness of this Amendment, on and
after the date hereof, each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof" or words of like import,
and each reference in the other Loan Documents to the Credit
Agreement, shall mean and be a reference to the Credit Agreement
as amended hereby.
17.02 Except as specifically amended above, all of the
terms of the Credit Agreement and all other Loan Documents shall
remain unchanged and in full force and effect.
17.03 The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Lender,
any Issuing Bank or the Agent, nor constitute a waiver of any
provision of the Credit Agreement or any of the Loan Documents.
SECTION 18. Costs and Expenses. The Borrower agrees
to pay on demand in accordance with the terms of Section 14.02 of
the Credit Agreement all costs and expenses in connection with
the preparation, reproduction, execution and delivery of this
Amendment, including the reasonable fees and out-of-pocket
expenses of Sidley & Austin, counsel for the Agent.
SECTION 19. Execution in Counterparts. This Amendment
may be executed and delivered in any number of counterparts and
by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original
and all of which taken together shall constitute one and the same
original agreement.
SECTION 20. Governing Law. THIS AMENDMENT SHALL BE
INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO
DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, this Amendment has been duly
executed on the date set forth above.
IMO INDUSTRIES INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇
Name:
Title:V.P. and Treasurer
CITIBANK, N.A., as Agent and as
a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
Title:
THE BANK OF NEW YORK COMMERCIAL
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
Title:
▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ T. Bukawski
Name:
Title:
NATIONAL WESTMINSTER BANK Plc
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
Title:
SANWA BUSINESS CREDIT CORPORATION
By: /s/ ▇▇▇▇▇ ▇. Shavla
Name:
Title:
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
Title:
Acknowledged and agreed
to:
▇▇▇▇▇ CORPORATION
By: _/s/ ▇.▇. ▇▇▇▇▇▇
Name:
Title:
VARO INC.
By:_/s/ ▇.▇. ▇▇▇▇▇▇
Name:
Title:
▇▇▇▇▇▇ PUMPS INC.
By:_/s/ ▇.▇. ▇▇▇▇▇▇
Name:
Title:
IMO INDUSTRIES (UK) LIMITED
By:_/s/ ▇.▇. ▇▇▇▇
Name:
Title:Director
EXECUTION COPY
SEVENTH AMENDMENT TO
CREDIT AGREEMENT
Seventh Amendment (this "Amendment") dated as of
March 4, 1996 among Imo Industries Inc. (with its successors and
permitted assigns, the "Borrower") and the undersigned Lenders
(as defined below), to the Credit Agreement dated as of August 5,
1994 (as previously amended by the First Amendment thereto dated
as of November 18, 1994, the Second Amendment thereto dated as of
January 11, 1995, the Third Amendment thereto dated as of
February 17, 1995, the Fourth Amendment thereto dated as of May
3, 1995, the Fifth Amendment thereto dated as of August 14, 1995,
and the Sixth Amendment thereto dated as of December 11, 1995,
and as such agreement may be further amended, supplemented or
modified from time to time, the "Credit Agreement") among the
Borrower, ▇▇▇▇▇ Corporation ("▇▇▇▇▇"), Varo Inc. ("Varo"), ▇▇▇▇▇▇
Pumps Inc., the institutions from time to time party thereto as
lenders (the "Lenders"), the institutions from time to time party
thereto as issuing banks (the "Issuing Banks"), and Citibank,
N.A., in its capacity as agent and collateral agent for the
Lenders and the Issuing Banks (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, pursuant to a letter dated February 14, 1996,
a copy of which is attached as Exhibit A (the "Letter"), the
Borrower has requested the undersigned, which constitute the
Requisite Lenders, to amend the Credit Agreement along the lines
set forth in the Letter; and
WHEREAS, the Lenders party hereto have agreed to amend
the Credit Agreement to accommodate the request of the Borrower,
subject to the terms set forth in this Agreement;
NOW, THEREFORE, in consideration of the above premises,
the Borrower and the undersigned Lenders agree as follows:
SECTION 1. Defined Terms. Capitalized terms used herein without
definition shall have the meanings ascribed to such terms in the
Credit Agreement.
SECTION 2. Amendment of Section 1.01. The definition of
"EBITDA" in Section 1.01 of the Credit Agreement is, effective as
of December 31, 1995, hereby amended by replacing the proviso at
the end of such definition with the following:
; provided, that (i) in calculating EBITDA for purposes
of determining Excess Cash Flow, the Fixed Charge Coverage
Ratio and the Interest Coverage Ratio, any increase in
EBITDA resulting from the sale of Roltra-▇▇▇▇▇ S.p.A. or
Varo's electronic systems division shall be excluded and
(ii) for purposes of determining the Interest Coverage Ratio
with respect to any period, decreases in Consolidated Net
Income for the fourth fiscal quarter of 1995 associated with
certain non-operating properties identified on Schedule
1.01.13 which are being marketed for sale in the amount set
forth opposite such properties on such Schedule 1.01.13,
shall be excluded.
SECTION 3. Amendment of Section 9.02. Section 9.02 of the
Credit Agreement is, effective as of the Amendment Effective
Date, hereby amended by (x) deleting the word "and" after the end
of clause (xiv) of such Section, (y) by replacing the period at
the end of clause (xv) of such Section with "; and", and (z) by
inserting the following at the end of such Section:
(xvi) the Borrower may sell to a financial institution
certain machine tools and related equipment manufactured by
Toyoda which have been acquired by the Borrower for use in
the Louisburg, North Carolina facility of its Boston Gear
Division for a purchase price of not less than (x) the
acquisition cost of such machine tools and related equipment
and (y) no more than $2,600,000.
SECTION 4. Amendment of Section 9.10. Section 9.10 of the
Credit Agreement is, effective as of the Amendment Effective
Date, hereby amended by inserting the following proviso at the
end of such Section:
; provided, however, that the Borrower may enter into
an Operating Lease with a financial institution of certain
machine tools and related equipment sold pursuant to Section
9.02(xvi) and leased by the Borrower for use in the
Louisburg, North Carolina facility of its Boston Gear
Division.
SECTION 5. New Schedule 1.01.13. Effective as of December 31,
1995, Schedule 1.01.13 to this Amendment is hereby added to the
Credit Agreement as Schedule 1.01.13 thereto.
SECTION 6. Waiver. To the extent that the Borrower's failure to
comply with Section 10.03 of the Credit Agreement during the
period from and including the last day of the fourth fiscal
quarter of 1995 to and including the Amendment Effective Date
constitutes a Default or Event of Default, as the case may be,
under the Credit Agreement, such Default or Event of Default is,
effective as of the Amendment Effective Date, hereby waived by
the Requisite Lenders.
SECTION 7. Conditions Precedent to the Effectiveness of this
Amendment. This Amendment shall become effective as of the date
(the "Amendment Effective Date") when the following conditions
precedent have been satisfied (unless waived by the undersigned
Lenders):
7.01. The Agent shall have received a copy of this
Amendment duly executed by the Borrower and the Requisite
Lenders.
7.02. After giving effect to this Amendment, each of
the representations and warranties of the Borrower and the
Guarantors contained in the Credit Agreement and in the other
Loan Documents shall be true and correct on and as of the
Amendment Effective Date, except to the extent that any such
representation or warranty expressly relates to a prior date, in
which case, such representation and warranty shall be true and
correct as of such earlier date.
7.03. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with
the transactions contemplated by this Amendment, shall be
satisfactory in all respects in form and substance to the Agent.
7.04. After giving effect to this Amendment, no
Default or Event of Default shall have occurred and be continuing
on the Amendment Effective Date.
7.05. All fees and expenses payable on or prior to the
Amendment Effective Date shall have been paid to the Lenders, the
Issuing Banks and the Agent.
SECTION 8. Representations and Warranties. The Borrower hereby
represents and warrants to the Lenders, the Issuing Banks and the
Agent that after giving effect to this Amendment, (a) as of the
Amendment Effective Date no Default or Event of Default under the
Credit Agreement shall have occurred and be continuing and (b)
all of the representations and warranties of the Borrower and the
Guarantors contained in the Credit Agreement and in any other
Loan Document continue to be true and correct as of the date
hereof, as though made on and as of such date, except to the
extent that such representations or warranties expressly relate
to prior dates, in which case, such representations and
warranties shall be true and correct as of such earlier dates.
SECTION 9. Reference to and Effect on the Loan Documents.
9.01. Upon the effectiveness of this Amendment, on and
after the date hereof, each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof" or words of like import,
and each reference in the other Loan Documents to the Credit
Agreement, shall mean and be a reference to the Credit Agreement
as amended hereby.
9.02. Except as specifically amended above, all of the
terms of the Credit Agreement and all other Loan Documents shall
remain unchanged and in full force and effect.
9.03. The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Lender,
any Issuing Bank or the Agent, nor constitute a waiver of any
provision of the Credit Agreement or any of the Loan Documents.
SECTION 10. Costs and Expenses. The Borrower agrees to
PAY ONdemand in accordance with the terms of Section 14.02 of the
Credit Agreement all costs and expenses in connection with the
preparation, reproduction, execution and delivery of this
Amendment, including the reasonable fees and out-of-pocket
expenses of Sidley & Austin, counsel for the Agent.
SECTION 11. Execution in Counterparts. This Amendment may be
executed and delivered in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed an original and
all of which taken together shall constitute one and the same
original agreement.
SECTION 12. Governing Law. THIS AMENDMENT SHALL BE INTERPRETED,
AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED,
IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, this Amendment has been duly
executed on the date set forth above.
IMO INDUSTRIES INC.
By: /s/ ▇.▇. ▇▇▇▇ ▇▇
Name:
Title:Vice President & Treasurer
CITIBANK, N.A., as Agent and as
a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
Title:
THE BANK OF NEW YORK COMMERCIAL
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
Title:
▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. Salullo
Name:
NATIONAL WESTMINSTER BANK Plc
By:
Name:
Title:
SANWA BUSINESS CREDIT CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
Title:
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
Title:
Acknowledged and agreed
to:
▇▇▇▇▇ CORPORATION
By:_/s/ ▇.▇. ▇▇▇▇ ▇▇
Name:
Title:Vice President and Treasurer
VARO INC.
By:_/s/ ▇.▇. ▇▇▇▇ ▇▇
Name:
Title: Vice President and Treasurer
▇▇▇▇▇▇ PUMPS INC.
By:_/s/ ▇.▇. ▇▇▇▇ ▇▇
Name:
Title: Vice President and Treasurer