SECOND AMENDMENT TO CREDIT AGREEMENT

Contract Categories: Business Finance - Credit Agreements
EX-10.1 2 a13-11988_1ex10d1.htm EX-10.1

Exhibit 10.1

 

SECOND AMENDMENT TO CREDIT AGREEMENT

 

THIS SECOND AMENDMENT TO CREDIT AGREEMENT dated as of May 8, 2013 (this “Amendment”) is entered into among SPX Corporation, a Delaware corporation (the “Parent Borrower”), the Foreign Subsidiary Borrowers, the Subsidiary Guarantors and the Lenders party hereto, Deutsche Bank AG Deutschlandgeschäft Branch, as Foreign Trade Facility Agent, and Bank of America, N.A., as Administrative Agent.  All capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement (as defined below).

 

RECITALS

 

WHEREAS, the Parent Borrower, the Lenders, Deutsche Bank AG Deutschlandgeschäft Branch, as Foreign Trade Facility Agent and Bank of America, N.A., as Administrative Agent entered into that certain Credit Agreement dated as of June 30, 2011 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”);

 

WHEREAS, the parties hereto agree to amend the Credit Agreement as set forth below;

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.             Amendments.  The Credit Agreement is hereby amended as follows:

 

(a)           In Section 1.1 of the Credit Agreement,

 

(i)            clause (h) in the definition of “Consolidated EBITDA” is amended and restated in its entirety to reads as follows:

 

(h) non-cash compensation expenses and related charges, including non-cash expenses or charges arising from the contribution, sale or other use of stock or stock appreciation or tracking rights, the granting of stock options, the granting of stock appreciation or tracking rights, the granting of restricted stock or restricted stock units  and arrangements similar to any of the foregoing (including any repricing, amendment, modification, substitution or change of any such stock, stock option, stock appreciation or tracking rights, restricted stock or restricted stock units or similar arrangements),

 

(ii)           the definition of “LIBO Rate” is amended by inserting the text “or the successor thereto if the British Bankers Association is no longer making a LIBOR rate available” immediately after the text “the British Bankers Association LIBOR Rate”.

 

2.             Conditions Precedent.  This Amendment shall be effective upon receipt by the Administrative Agent of counterparts of this Amendment duly executed by the Parent Borrower, the other Loan Parties, the Required Lenders and the Administrative Agent.

 

3.             Miscellaneous.

 

(a)           The Credit Agreement and the obligations of the parties thereunder and under the other Loan Documents, are hereby ratified and confirmed and shall remain in full force and effect according to their terms.

 


 

(b)           Each Subsidiary Guarantor (i) acknowledges and consents to all of the terms and conditions of this Amendment, (ii) affirms all of its obligations under the Loan Documents and (iii) agrees that this Amendment and all documents executed in connection herewith do not operate to reduce or discharge its obligations under the Credit Agreement or the other Loan Documents.

 

(c)           Each of the Loan Parties hereby represents and warrants as follows:

 

(i)            Such Loan Party has taken all necessary action to authorize the execution, delivery and performance of this Amendment.

 

(ii)           This Amendment has been duly executed and delivered by such Loan Party and constitutes such Loan Party’s legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforceability may be subject to (A) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

 

(iii)          No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by any Loan Party of this Amendment.

 

(d)           The Parent Borrower represents and warrants to the Lenders that (i) the representations and warranties of the Parent Borrower set forth in Article III of the Credit Agreement and in each other Loan Document are true and correct in all material respects as of the date hereof with the same effect as if made on and as of the date hereof, except to the extent such representations and warranties expressly relate solely to an earlier date and (ii) no event has occurred and is continuing which constitutes a Default or an Event of Default.

 

(e)           This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same agreement.  Delivery of an executed counterpart of this Amendment by telecopy, pdf or other similar electronic transmission shall be effective as an original and shall constitute a representation that an executed original shall be delivered.

 

(f)            THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

 

[Signature pages follow]

 

2


 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

PARENT BORROWER:

SPX CORPORATION,

 

a Delaware corporation

 

 

 

 

By:

/s/ Kevin Lilly

 

Name:

Kevin Lilly

 

Title:

Sr. Vice President, Secretary and General Counsel

 

 

 

FOREIGN SUBSIDIARY BORROWERS:

SPX COOLING TECHNOLOGIES GmbH,

 

a limited liability company formed in Germany

 

 

 

 

By:

/s/ Robert Bartels

 

Name:

Robert Bartels

 

Title:

Managing Director

 

 

 

 

By:

/s/ Gene Lowe

 

Name:

Gene Lowe

 

Title:

Managing Director

 

 

 

BALCKE-DÜRR GmbH,

 

a limited liability company formed in Germany

 

 

 

 

By:

/s/ Robert Bartels

 

Name:

Robert Bartels

 

Title:

Managing Director

 

 

 

 

By:

/s/ Gene Lowe

 

Name:

Gene Lowe

 

Title:

Managing Director

 

 

 

SPX FLOW TECHNOLOGY CRAWLEY LIMITED,

 

a company incorporated in England and Wales

 

 

 

 

By:

/s/ Kevin Lilly

 

Name:

Kevin Lilly

 

Title:

Director

 

 

 

SUBSIDIARY GUARANTORS:

THE MARLEY-WYLAIN COMPANY,

 

a Delaware corporation

 

 

 

 

By:

/s/ Jack Kelly

 

Name:

Jack Kelly

 

Title:

Vice President, Secretary and Treasurer

 

SPX CORPORATION

SECOND AMENDMENT TO CREDIT AGREEMENT

 


 

 

SPX TRANSFORMER SOLUTIONS, INC.,

 

a Wisconsin corporation

 

 

 

 

By:

/s/ Kevin Lilly

 

Name:

Kevin Lilly

 

Title:

Vice President and Secretary

 

 

 

MCT SERVICES LLC,

 

a Delaware limited liability company

 

 

 

 

By:

/s/ Gene Lowe

 

Name:

Gene Lowe

 

Title:

Vice President

 

 

 

SPX HEAT TRANSFER LLC,

 

a Delaware corporation

 

 

 

 

By:

/s/ Kevin Lilly

 

Name:

Kevin Lilly

 

Title:

Manager

 

 

 

SPX FLOW TECHNOLOGY SYSTEMS, INC.,

 

a Delaware corporation

 

 

 

 

By:

/s/ Kevin Lilly

 

Name:

Kevin Lilly

 

Title:

Vice President and Secretary

 

 

 

SPX COOLING TECHNOLOGIES, INC.,

 

a Delaware corporation

 

 

 

 

By:

/s/ Kevin Lilly

 

Name:

Kevin Lilly

 

Title:

Executive Vice President and Secretary

 

 

 

THE MARLEY COMPANY LLC,

 

a Delaware limited liability company

 

 

 

 

By:

/s/ Kevin Lilly

 

Name:

Kevin Lilly

 

Title:

Executive Vice President and Secretary

 

 

 

SPX HOLDING, INC.,

 

a Connecticut corporation

 

 

 

 

By:

/s/ Kevin Lilly

 

Name:

Kevin Lilly

 

Title:

Vice President and Secretary

 

SPX CORPORATION

SECOND AMENDMENT TO CREDIT AGREEMENT

 


 

 

KAYEX CHINA HOLDINGS, INC.,

 

a Delaware corporation

 

 

 

By:

/s/ Kevin Lilly

 

Name:

Kevin Lilly

 

Title:

Vice President and Secretary

 

SPX CORPORATION

SECOND AMENDMENT TO CREDIT AGREEMENT

 


 

ADMINISTRATIVE AGENT:

BANK OF AMERICA, N.A.,

 

as Administrative Agent

 

 

 

 

By:

/s/ Robert Rittelmeyer

 

Name:

Robert Rittelmeyer

 

Title:

Vice President

 

 

 

FOREIGN TRADE FACILITY AGENT:

DEUTSCHE BANK AG DEUTSCHLANDGESCHÄFT

 

BRANCH, as Foreign Trade Facility Agent

 

 

 

 

By:

/s/ Jürgen Berweiler

 

Name:

Jürgen Berweiler

 

Title:

Vice President

 

 

 

 

By:

/s/ Monique Bode

 

Name:

Monique Bode

 

Title:

Assistant Vice President

 

 

LENDERS:

BANK OF AMERICA, N.A.,

 

as a Lender, Swingline Lender, Issuing Lender and Participation Foreign Issuing Lender

 

 

 

 

By:

/s/ Marc Sanchez

 

Name:

Marc Sanchez

 

Title:

Vice President

 

 

 

DEUTSCHE BANK AG DEUTSCHLANDGESCHÄFT

 

BRANCH, as a Lender, Participation Foreign Issuing Lender and Bilateral Foreign Issuing Lender

 

 

 

 

By:

/s/ Jürgen Berweiler

 

Name:

Jürgen Berweiler

 

Title:

Vice President

 

 

 

 

By:

/s/ Monique Bode

 

Name:

Monique Bode

 

Title:

Assistant Vice President

 

SPX CORPORATION

SECOND AMENDMENT TO CREDIT AGREEMENT

 


 

 

THE BANK OF NOVA SCOTIA,

 

as a Lender

 

 

 

 

By:

/s/ David Mahmood

 

Name:

David Mahmood

 

Title:

Managing Director

 

 

 

 

DEUTSCHE BANK AG NEW YORK BRANCH,

 

as a Lender

 

 

 

 

By:

/s/ Michael Getz

 

Name:

Michael Getz

 

Title:

Vice President

 

 

 

 

By:

/s/ Marcus M. Tarkington

 

Name:

Marcus M. Tarkington

 

Title:

Director

 

 

 

 

COMMERZBANK AG, NEW YORK AND

 

GRAND CAYMAN BRANCHES,

 

as a Lender

 

 

 

 

By:

/s/ Matthew Havens

 

Name:

Matthew Havens

 

Title:

Vice President

 

 

 

 

By:

/s/ Matthew Weinert

 

Name:

Matthew Weinert

 

Title:

Vice President

 

 

 

 

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

 

as a Lender

 

 

 

 

By:

/s/ George Stoecklein

 

Name:

George Stoecklein

 

Title:

Director

 

 

 

 

CITIBANK NA,

 

as a Lender

 

 

 

 

By:

/s/ Brian Reed

 

Name:

Brian Reed

 

Title:

Director

 

 

 

 

MIZUHO CORPORATE BANK, LTD.,

 

as a Lender

 

 

 

 

By:

/s/ David Lim

 

Name:

David Lim

 

Title:

Authorized Signatory

 

SPX CORPORATION

SECOND AMENDMENT TO CREDIT AGREEMENT

 


 

 

NORDEA BANK FINLAND PLC

 

NEW YORK AND GRAND CAYMAN BRANCHES,

 

as a Lender

 

 

 

 

By:

/s/ Mogens R. Jensen

 

Name:

Mogens R. Jensen

 

Title:

Senior Vice President

 

 

 

 

By:

/s/ Linda Lindblad

 

Name:

Linda Lindblad

 

Title:

Vice President

 

 

 

 

SUNTRUST BANK,

 

as a Lender

 

 

 

 

By:

/s/ Arthur D. Burns

 

Name:

Arthur D. Burns

 

Title:

Senior Vice President

 

 

 

 

HSBC BANK USA, NATIONAL ASSOCIATION,

 

as a Lender

 

 

 

 

By:

/s/ Chris Burns

 

Name:

Chris Burns

 

Title:

Vice President

 

 

 

 

FIFTH THIRD BANK,

 

as a Lender

 

 

 

 

By:

/s/ Mary Ramsey

 

Name:

Mary Ramsey

 

Title:

Vice President

 

 

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

 

as a Lender

 

 

 

 

By:

/s/ Kirk Tesch

 

Name:

Kirk Tesch

 

Title:

Director

 

 

 

 

THE NORTHERN TRUST COMPANY,

 

as a Lender

 

 

 

 

By:

/s/ John Canty

 

Name:

John Canty

 

Title:

Senior Vice President

 

SPX CORPORATION

SECOND AMENDMENT TO CREDIT AGREEMENT

 


 

 

PNC BANK, NATIONAL ASSOCIATION,

 

as a Lender

 

 

 

 

By:

/s/ Larry Jackson

 

Name:

Larry Jackson

 

Title:

Vice President — Underwriting Manager, Officer

 

 

 

 

TD BANK, NATIONAL ASSOCIATION,

 

as a Lender

 

 

 

 

By:

/s/ Mark Hogan

 

Name:

Mark Hogan

 

Title:

Senior Vice President

 

 

 

 

US BANK, NATIONAL ASSOCIATION,

 

as a Lender

 

 

 

 

By:

/s/ Steven Dixon

 

Name:

Steven Dixon

 

Title:

Vice President

 

 

 

 

CREDIT AGRICOLE CORPORATE AND

 

INVESTMENT BANK,

 

as a Lender

 

 

 

 

By:

/s/ Michael Madnick

 

Name:

Michael Madnick

 

Title:

Managing Director

 

 

 

 

By:

/s/ Brad Matthews

 

Name:

Brad Matthews

 

Title:

Vice President

 

 

 

 

JPMORGAN CHASE BANK, N.A.,

 

as a Lender and Issuing Lender

 

 

 

 

By:

/s/ Richard W. Duker

 

Name:

Richard W. Duker

 

Title:

Managing Director

 

 

 

 

DBS BANK LTD., LOS ANGELES AGENCY,

 

as a Lender

 

 

 

 

By:

/s/ James McWalters

 

Name:

James McWalters

 

Title:

General Manager

 

SPX CORPORATION

SECOND AMENDMENT TO CREDIT AGREEMENT

 


 

 

SUMITOMO MITSUI BANKING CORPORATION,

 

as a Lender

 

 

 

 

By:

/s/ Shuji Yabe

 

Name:

Shuji Yabe

 

Title:

Managing Director

 

 

 

 

DNB NOR BANK ASA GRAND CAYMAN BRANCH,

 

as a Lender and Participation Foreign Issuing Lender

 

 

 

 

By:

/s/ Philip F. Kurpiewski

 

Name:

Philip F. Kurpiewski

 

Title:

Senior Vice President

 

 

 

 

By:

/s/ Kristie Li

 

Name:

Kristie Li

 

Title:

First Vice President

 

 

 

 

BAYERISCHE LANDESBANK, NEW YORK

 

BRANCH,

 

as a Lender

 

 

 

 

By:

/s/ Rolf Siebert

 

Name:

Rolf Siebert

 

Title:

Senior Vice President

 

 

 

 

By:

/s/ Michael Hintz

 

Name:

Michael Hintz

 

Title:

First Vice President

 

 

 

 

COMPASS BANK,

 

as a Lender

 

 

 

 

By:

/s/ Michael Dixon

 

Name:

Michael Dixon

 

Title:

Vice President

 

 

 

 

HSBC BANK PLC,

 

as a Bilateral Foreign Issuing Lender

 

 

 

 

By:

/s/ Ivan Taylor

 

Name:

Ivan Taylor

 

Title:

Senior Corporate Banking Manager

 

 

 

 

SCOTIABANC INC.,

 

as a Lender

 

 

 

 

By:

/s/ J.F. Todd

 

Name:

J.F. Todd

 

Title:

Managing Director

 

SPX CORPORATION

SECOND AMENDMENT TO CREDIT AGREEMENT

 


 

 

INTESA SANPAOLO S.P.A., New York Branch,

 

as a Lender

 

 

 

 

By:

/s/ Cristina Cignoli

 

Name:

Cristina Cignoli

 

Title:

VP

 

 

 

 

By:

/s/ Sergio Maggioni

 

Name:

Sergio Maggioni

 

Title:

FVP

 

 

 

 

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCHE,

 

as a Lender

 

 

 

 

By:

/s/ Ari Bruger

 

Name:

Ari Bruger

 

Title:

Authorized Signatory

 

 

 

 

By:

/s/ Tyler R. Smith

 

Name:

Tyler R. Smith

 

Title:

Authorized Signatory

 

 

 

 

BANK OF CHINA, NEW YORK BRANCH,

 

as a Lender and Participation Foreign Issuing Lender

 

 

 

 

By:

/s/ Haifeng Xu

 

Name:

Haifeng Xu

 

Title:

Assistant General Manager

 

SPX CORPORATION

SECOND AMENDMENT TO CREDIT AGREEMENT