Colfax CORP - FORM 8-K - EX-10.1 - EXHIBIT 10.1 - FIRST AMENDMENT TO CREDIT AGREEMENT

Attached files

file	filename
8-K - 8-K - Colfax CORP	cfx_8k.htm

Exhibit 10.1

FIRST AMENDMENT TO CREDIT AGREEMENT

This FIRST AMENDMENT TO CREDIT AGREEMENT (this “First Amendment”) is entered into as of January 13, 2012, by and among COLFAX CORPORATION, a Delaware corporation (the “US Borrower” or “Parent”), COLFAX UK HOLDINGS LTD, a company organized under the laws of England and Wales (the “European Borrower” and, together with the US Borrower, the “Borrowers”), the other Subsidiaries of Parent party hereto, the Lenders party hereto, and DEUTSCHE BANK AG NEW YORK BRANCH, as administrative agent (in such capacity, the “Administrative Agent”). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Credit Agreement (as defined below).

W I T N E S S E T H:

WHEREAS, the Borrowers, certain Subsidiaries of the Parent, various financial institutions (the “Lenders”) and the Administrative Agent are parties to that certain Credit Agreement, dated as of September 12, 2011 (the “Credit Agreement”), pursuant to which, among other things, the Lenders have agreed, subject to the terms and conditions set forth therein, to make certain loans and other financial accommodations to the Borrowers;

WHEREAS, the parties hereto wish to amend and/or modify certain provisions of the Credit Agreement on the terms and conditions contained herein;

NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Amendments to Credit Agreement. Effective as of the First Amendment Effective Date (as defined below):

1. The Credit Agreement is hereby amended to incorporate the changes reflected in the redline version of the Credit Agreement attached hereto as Annex I.

2. The Credit Agreement is hereby further amended by (i) deleting Schedule 2.01 thereto and inserting a new Schedule 2.01 thereto in the form of Schedule 2.01 hereto, (ii) adding a new Schedule 2.03(a) thereto in form of Schedule 2.03(a) hereto, (iii) deleting Schedule 5.07 thereto and inserting a new Schedule 5.07 thereto in the form of Schedule 5.07 hereto, (iv) deleting Schedule 5.18(b) thereto and inserting a new Schedule 5.18(b) thereto in the form of Schedule 5.18(b) hereto, (v) deleting Schedule 5.18(e) thereto and inserting a new Schedule 5.18(e) thereto in the form of Schedule 5.18(e) hereto, (vi) deleting Schedule 7.02(d) thereto and inserting a new Schedule 7.02(d) thereto in the form of Schedule 7.02(d) hereto, (vii) deleting Schedule 7.13 thereto and inserting a new Schedule 7.13 thereto in the form of Schedule 7.13 hereto, (viii) deleting Schedule 11.02 thereto and inserting a new Schedule 11.02 thereto in the form of Schedule 11.02 hereto, (ix) restating the heading of Schedule III thereto as “Existing Letters of Credit or Bank Guarantees”, (x) deleting Schedule VIII thereto and inserting the a new Schedule VIII thereto in the form of Schedule VIII hereto, (xi) deleting Exhibit A-1 thereto and inserting a new Exhibit A-1 thereto in the form of Exhibit A-1 hereto, (xii) adding a new Exhibit C-6 thereto in the form of Exhibit C-6 hereto, (xiii) deleting Exhibit E thereto and inserting a new Exhibit E thereto in the form of Exhibit E hereto, (xiv) deleting Exhibit F thereto and inserting a new Exhibit F thereto in the form of Exhibit F hereto, (xv) deleting Exhibit G thereto and

inserting a new Exhibit G thereto in the form of Exhibit G hereto, (xvi) deleting Exhibit H thereto and inserting a new Exhibit H thereto in the form of Exhibit H hereto, (xvii) deleting Exhibit K thereto and inserting a new Exhibit K thereto in the form of Exhibit K hereto, (xviii) deleting Exhibit L thereto and inserting a new Exhibit L thereto in the form of Exhibit L hereto, (xix) deleting Exhibit M thereto and inserting a new Exhibit M thereto in the form of Exhibit M hereto, (xx) deleting Exhibit N thereto and inserting a new Exhibit N thereto in the form of Exhibit N hereto, (xxi) deleting Exhibit O thereto and inserting a new Exhibit O thereto in the form of Exhibit O hereto, (xxii) deleting Exhibit P thereto and inserting a new Exhibit P thereto in the form of Exhibit P hereto, (xxiii) deleting Exhibit Q thereto and inserting a new Exhibit Q thereto in the form of Exhibit Q hereto, and (xxiv) adding a new Exhibit T thereto in the form of Exhibit T hereto.

3. Schedule V to the Credit Agreement is hereby amended by:

(i) restating clause (b) thereto in its entirety as follows:

“(b) The Administrative Agent shall have received a funds flow memorandum (the “Funds Flow Memorandum”) describing the anticipated flow of funds on the Closing Date and the Acquisition Funding Date, including payment of all fees due and payable on the Closing Date and the Acquisition Funding Date in accordance with the Fee Letter and each other Loan Document and the consummation of the Parent Refinancing.”;

(ii) deleting clause (c) thereto and inserting the text “(c) [Reserved].” in lieu thereof;

(iii) restating clause (f) thereto in its entirety as follows:

“(f) The Administrative Agent shall have received a certificate from a Responsible Officer of Parent certifying that (after utilization of the Facilities on the Closing Date and the Acquisition Funding Date and the receipt of the proceeds of the Equity Financing on or prior to the Acquisition Funding Date) the Purchaser will have the funds necessary to acquire all the Target Shares, effect the Parent Refinancing and to pay all fees and expenses incurred in connection with the Transaction.”;

(iv) deleting the text “Section 1” appearing in clause (h) thereof and inserting the text “Section 2” in lieu thereof;

(v) restating clause (m) thereto in its entirety as follows:

“(m) The Administrative Agent shall have received a security agreement, in, or substantially in, the form of, Exhibit N (the “Target Shares Security Agreement”), duly executed and delivered by the Purchaser.”;

(vi) inserting the following new text immediately before the text “the Administrative Agent shall have received” appearing in clause (n) thereto:

“To the extent there shall be Overadvanced Acquisition Funds on the Closing Date,”; and

(vii) restating clause (o) thereto in its entirety as follows:

“(o) The Administrative Agent shall have received a Guaranty Supplement in, or substantially in, the form of, Exhibit I, duly executed and delivered by each US Subsidiary, each Subsidiary of Parent organized under the laws of England and Wales and each Subsidiary of Parent organized under the laws of the Federal Republic of Germany, in each case, other than the Loan Parties, Inactive Subsidiaries and members of the Target Group.”

(viii) inserting the following new clause (q) at the end thereof:

“(q) The Administrative Agent shall have received an intercreditor agreement in, or substantially in, the form of, Exhibit T, duly executed and delivered by each Loan Party.”

SECTION 2. Representations and Warranties. The Borrowers hereby represent and warrant that:

(i) no Default exists as of the First Amendment Effective Date, both before and after giving effect to this First Amendment; and

(ii) all of the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on the First Amendment Effective Date after giving effect to this First Amendment; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.

SECTION 3. Reference To And Effect Upon The Credit Agreement. (a) From and after the First Amendment Effective Date, (i) the term “Agreement” in the Credit Agreement, and all references to the Credit Agreement in any other Loan Document, shall mean the Credit Agreement as modified hereby, and (ii) this First Amendment shall constitute a Loan Document for all purposes of the Credit Agreement and the other Loan Documents.

(b) Each Loan Party, by its signature below, hereby confirms that its Guaranty and all other Loan Documents in effect immediately before giving effect to this First Amendment, to which it is a party, remains in full force and effect.

(c) This First Amendment is limited as specified and shall not constitute a modification, acceptance or waiver of any other provision of the Credit Agreement or any other Loan Document.

SECTION 4. Counterparts, Etc. This First Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but all such counterparts shall constitute one and the same instrument, and all signatures need not appear on any one counterpart. Any party hereto may execute and deliver a counterpart of this First Amendment by delivering by facsimile or other electronic transmission a signature page of this First Amendment signed by such party, and any such facsimile or other electronic signature shall be treated in all respects as having the same effect as an original signature. Section headings in this First Amendment are included herein for convenience of reference only and shall not constitute part of this First Amendment for any other purpose.

SECTION 5. Governing Law. This First Amendment and the rights and obligations of the parties under this First Amendment shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.

SECTION 6. Effectiveness. This First Amendment shall become effective at the time (the “First Amendment Effective Date”) when each of the following conditions has been satisfied:

	(i)		the Administrative Agent shall have received duly executed signature pages for this First Amendment signed by each Loan Party, the Lenders and Bank of America, N.A., as L/C Issuer;
	(ii)		the Administrative Agent shall have received a duly executed signature page for the Credit Agreement signed by Bank of America, N.A. in its capacity as L/C Issuer thereunder; and
	(iii)		the Administrative Agent shall have received a duly executed copy of that certain Amended and Restated Fee Letter dated as of January 13, 2012.

SECTION 7. Joinder. Bank of America, N.A. hereby agrees that, upon its execution hereof, it will become a L/C Issuer under the Credit Agreement and will be bound by all terms, conditions and duties applicable to a L/C Issuer under the Credit Agreement.

The Administrative Agent shall provide prompt written notice of the occurrence of the First Amendment Effective Date to the Lenders.

[Signature Pages to follow]

IN WITNESS WHEREOF, this First Amendment has been executed by the parties hereto as of the date first written above.

	COLFAX CORPORATION,
	as US BORROWER, PARENT and a FOREIGN OBLIGATIONS GUARANTOR

	By:		/s/ C.S. Brannan
	Name:
	Title:

	CLFX LLC, as a US OBLIGATIONS GUARANTOR and a FOREIGN OBLIGATIONS GUARANTOR

	By:		/s/ C.S. Brannan
	Name:
	Title:

	CLFX SUB HOLDING LLC, as a US OBLIGATIONS GUARANTOR and a FOREIGN OBLIGATIONS GUARANTOR

	By:		/s/ C.S. Brannan
	Name:
	Title:

	IMO HOLDINGS, INC., as a US OBLIGATIONS GUARANTOR and a FOREIGN OBLIGATIONS GUARANTOR

	By:		/s/ C.S. Brannan
	Name:
	Title: