WAIVER AND AMENDMENT NO. 6 TO CREDIT AGREEMENT
This Waiver and Amendment No. 6 to Credit Agreement ("Amendment No. 6")
dated as of September 20, 1996 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. 6 in
order to (a) amend Section 2.7 and Section 6.32 of the Credit Agreement to make
certain changes as more fully described hereinafter and (b) waive currently
existing Unmatured Defaults 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 Section 2.7. Section 2.7 of the Credit Agreement
shall be amended by deleting clause (c)(ii) in its entirety and inserting the
following in lieu thereof:
"(ii) in an amount equal to 100% of the aggregate Net Available Proceeds
in excess of $1,000,000 realized upon all Asset Dispositions in any fiscal
year of the Borrower (other than any sale or disposition of SPX Credit,
the Sealed Power Division and the Hy-Lift Division), such reduction to be
effective concurrently with the receipt thereof by the Borrower or any
Subsidiary; and".
1.2 Amendment of Section 6.32. Section 6.32 of the Credit Agreement
is deleted in its entirety and the following is added in substitution therefor:
" 6.32. Subordinated Debt Documents. The Borrower will not make any
amendment or modification of any Subordinated Debt Documents, nor shall
the Borrower, on or after March 4, 1996, directly or indirectly
voluntarily repay, defease, or in substance defease, purchase, redeem,
retire, or otherwise acquire any of the Indebtedness evidenced by the
Subordinated Notes in an aggregate amount exceeding $50,000,000; provided,
however, that upon the consummation of the contemplated sale and
disposition of the assets of (i) Hy-Lift Division to W.A. Xxxxxx Company
and (ii) Sealed Power Division to Xxxx Corporation for cash consideration
not less than $150,000,000, such amount shall be increased from
$50,000,000 to $100,000,000."
2. Waivers.
2.3 By its signature below each of the undersigned Lenders hereby
specifically waives any objection that it may have and any Unmatured Default
caused by the violation of Section 6.13 of the Credit Agreement as a result of
the Borrower permitting the sale and disposition for cash consideration of all
or substantially all of the assets of (i) its Hy-Lift Division to W.A. Xxxxxx
Corporation and (ii) its Sealed Power Division to Xxxx Corporation, each as
heretofore publicly announced. This specific waiver applies only to the
above-specified asset sales.
3. Representations and Warranties. The Borrower represents and warrants
that: (a) this Amendment No. 6 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. 6, no Default or
Unmatured Default has occurred and is continuing.
4. Effective Date. Each waiver and amendment contained in this Amendment
No. 6 (except for the amendment contained in Section 1.1) 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 amendment contained in Section 1.1 of this Amendment No. 6 shall become
effective only upon receipt by the Agent (with sufficient copies for the
Lenders) of written agreement thereto by the Agent, all Lenders, and the
Borrower. The date upon which the above condition has been satisfied is the
"Effective Date." Upon the occurrence of the Effective Date, each waiver and
amendment which has received the requisite approval shall be deemed to have
become effective as of the date first written above.
5. Effect of Amendment. Upon execution of this Amendment No. 6 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. 6 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. 6 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.
6 to be executed by their duly authorized representatives as of the date first
written above.
SPX CORPORATION
By: Xxxxxxx X. X'Xxxxx
Title: Vice President, Finance and
Chief Financial and
Accounting Officer
THE FIRST NATIONAL BANK OF CHICAGO,
individually as a Lender and
as Agent
By: Xxxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK, as Lender
By: Xxxx X. Xxxxx, Xx.
Title: Vice President
NBD BANK, N.A., as Lender
By: Xxxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
as Lender
By: F.C.H. Xxxxx
Title: Sr. Manager Loan Operations
MICHIGAN NATIONAL BANK,
as Lender
By: Xxxxxx X. Xxxxxxxx
Title: Relationship Manager
SUMITOMO BANK, as Lender
By: Xxxxxxxx Xxxxx
Title: Joint General Manager
THE YASUDA TRUST & BANKING
CO., LTD., as Lender
By: K. Inow
Title: Joint General Manager
MITSUBISHI TRUST & BANKING
CORPORATION, as Lender
By: Masaaki Managishi
Title: Chief Manager
COMERICA BANK, as Lender
By: Xxxxx X. Xxxxxxx
Title: Vice President
OLD KENT BANK, as Lender
By: Xxxxxxx X. Xxxxx
Title: Vice President
THE BANK OF TOKYO TRUST
COMPANY, as Lender
By: X. X. Xxxxxxxx
Title: Assistant Vice President
