Incremental Facility Activation Notice – Under Credit Agreement – SPX Corp.
INCREMENTAL FACILITY ACTIVATION NOTICE
(Incremental Term Loan A)
To: BANK OF AMERICA, N.A.,
as Administrative Agent under the Credit Agreement referred to below
Reference is hereby made to the Credit Agreement, dated as of June 30, 2011
(as amended by the First Amendment to Credit Agreement dated as of October 5,
2011, and as further amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement“), among SPX Corporation, a Delaware
corporation (the “Parent Borrower“), the Foreign Subsidiary Borrowers
from time to time parties thereto, the Lenders from time to time parties
thereto, Bank of America, N.A., as Administrative Agent (in such capacity, the
“Administrative Agent“) and Deutsche Bank AG Deutschlandgesch 164ft Branch,
as Foreign Trade Facility Agent. Terms defined in the Credit Agreement shall
have their defined meanings when used herein.
This notice is an Incremental Facility Activation Notice referred to in the
Credit Agreement, and the Parent Borrower and each of the Lenders party hereto
hereby notify you of the following agreements of the Parent Borrower and such
Lenders:
1. Subject to the terms and conditions set forth herein and in the Credit
Agreement, each Lender party hereto severally agrees to make its portion of an
Incremental Term Loan (the “Incremental Term Loan A“) to the Parent
Borrower in Dollars in one advance on any Business Day during the Availability
Period (as defined below) in the amount (such Lender153s “Incremental Term Loan
A Commitment“) set forth opposite such Lender153s name below under the caption
“Incremental Term Loan A Amount”; provided, however, before the Incremental Term
Loan A may be made, the Parent Borrower shall have delivered to the
Administrative Agent (a) a certificate substantially in the form of Exhibit
1 attached hereto (the “Incremental Term Loan Funding Date
Certificate“) and (b) a Borrowing Request in accordance with Section
2.3 of the Credit Agreement. The aggregate amount of the Incremental Term
Loan A Commitments is Five Hundred Million Dollars ($500,000,000) as of the
Incremental Term Loan Closing Date (as defined below).
2. The closing date for the Incremental Term Loan A is October 5, 2011 (the
“Incremental Term Loan Closing Date“).
3. The Incremental Term Loan Maturity Date for the Incremental Term Loan A is
June 30, 2016.
4. The Availability Period for the Incremental Term Loan A means the period
from and including the Incremental Term Loan Closing Date to the earliest of (a)
December 31, 2011, (b) the date of termination of Commitments by the
Administrative Agent pursuant to Article VII of the Credit Agreement and (c) the
date of termination of the Commitments hereunder by the Parent Borrower pursuant
to Section 2.9(b) of the Credit Agreement.
5. The proceeds of the Incremental Term Loan A shall be used as part of the
consideration to consummate the acquisition (the “Acquisition“) of Clyde
Union (Holdings) S. r.l. and may be used to repay debt outstanding on the date
of the funding of the Incremental Term Loan A (such date of funding, the
“Funding Date“); provided, however, that unless used by the Parent
Borrower to consummate the Acquisition and/or repay debt as identified
above no later than five (5) Business Days following the Funding Date, such
proceeds shall be maintained with the Administrative Agent pursuant to the terms
of the Cash Collateral Agreement (as defined below). The Parent Borrower also
agrees that, if subsequent to the Funding Date, it determines in its discretion
that the Acquisition will not be consummated, the Parent Borrower shall promptly
repay to the applicable Lenders the outstanding principal amount of the
Incremental Term Loan A. For purposes hereof, “Cash Collateral
Agreement” means that certain Cash Collateral Agreement by and between the
Parent Borrower and the Administrative Agent, substantially in the form of
Exhibit 2 attached hereto.
6. Each of the Lenders party hereto and the Parent Borrower hereby agrees
that (a) the amortization schedule relating to the Incremental Term Loan A is
set forth in Annex A attached hereto and (b) the Applicable Rate for the
Incremental Term Loan A shall be as set forth on the grid in Annex B
attached hereto based upon the Consolidated Leverage Ratio as of the most recent
Determination Date.
7. Each of the Lenders party hereto agree that as provided in Section 2.13(b)
of the Credit Agreement, (a) any mandatory prepayment of the Incremental Term
Loans with the Net Proceeds received with respect to any Prepayment Event
described in clause (d) of the definition of the term Prepayment Event shall be
allocated only to the prepayment of the Incremental Term Loan X and (b) any
mandatory prepayment of the Incremental Term Loans with the Net Proceeds
received with respect to any Prepayment Event described in clauses (a), (b) or
(c) of the definition of the term Prepayment Event shall be allocated by the
applicable Borrower among the Classes of Incremental Term Loans in the manner
directed in writing by the Parent Borrower to the Administrative Agent.
8. The Parent Borrower agrees to pay to the Administrative Agent for the
account of each Lender party hereto a commitment fee (the “Incremental Term
Loan A Commitment Fee“), which shall accrue at the rate of 0.275% on the
actual daily unused amount of Incremental Term Loan A Commitment of such Lender
during the Availability Period. Accrued Incremental Term Loan A Commitment Fees
shall be payable in arrears on the last Business Day of December, March and June
and on the last day of the Availability Period, commencing on the first such
date to occur after the date hereof. The Incremental Term Loan A Commitment Fee
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day). For purposes of computing the Incremental Term Loan A Commitment
Fees, the Incremental Term Loan A Commitment of a Lender shall be deemed to be
used to the extent of the portion of the outstanding Incremental Term Loan A
advanced by such Lender.
9. Each Lender party hereto agrees not to assign its Incremental Term Loan A
Commitment hereunder without the consent of the Parent Borrower (such consent
not to be unreasonably withheld or delayed) unless (a) an Event of Default has
occurred and is continuing at the time of such assignment or (b) such assignment
is to a Lender, an Affiliate of a Lender or an Approved Fund.
10. Each of the Lenders party hereto that are identified on Schedule 1 (the
“New Lenders“) agrees to be bound by the provisions of the Credit
Agreement, and agrees that, as of the date hereof, it is a Lender for all
purposes of the Credit Agreement to the same extent as if originally a party
thereto.
11. Each New Lender (a) represents and warrants that it is legally authorized
to enter into this Incremental Facility Activation Notice; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 3.4 thereof, copies of the most
recent financial statements delivered pursuant to Section 5.1 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Incremental Facility Activation
Notice; (c) agrees that it has made and will, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit Agreement
or any instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit Agreement or
any instrument or document furnished pursuant hereto or thereto as are delegated
to the Administrative Agent by the terms thereof, together with such powers as
are incidental thereto; and (e) agrees that it will be bound by the provisions
of the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, without limitation, if it is a Non-U.S.
Lender, its obligation pursuant to Section 2.19(e) of the Credit Agreement.
12. Each New Lender represents and warrants that its address for notices for
the purposes of the Credit Agreement is as set forth on Schedule 1 opposite its
name.
[Signatures on Following Page(s)]
IN WITNESS WHEREOF, the undersigned have executed this Incremental Facility
Activation Notice this 5th day of October, 2011.
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SPX CORPORATION |
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By: |
/s/ Patrick J. O153Leary |
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Name: |
Patrick J. O153Leary |
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Title: |
Executive Vice President and Chief Financial Officer |
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ACKNOWLEDGED:
BANK OF AMERICA, N.A.,
as Administrative Agent
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By: |
/s/ Mollie S. Canup |
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Name: Mollie S. Canup |
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Title: Vice President |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $40,625,000 |
BANK OF AMERICA, N.A., |
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as a Lender |
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By: |
/s/ Chris Burns |
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Name: Chris Burns |
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Title: Vice President |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $40,625,000 |
SCOTIABANC INC., |
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as a Lender |
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By: |
/s/ H. Thind |
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Name: H. Thind |
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Title: Director |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $40,625,000 |
THE BANK OF TOKYO-MITSUBISHI UFJ, Ltd. |
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NEW YORK BRANCH, |
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as a Lender |
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By: |
/s/ George Stoecklein |
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Name: George Stoecklein |
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Title: Vice President |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $40,625,000 |
HSBC BANK USA, |
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NATIONAL ASSOCIATION, |
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as a Lender |
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By: |
/s/ Reed R. Menefee |
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Name: Reed R. Menefee |
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Title: Vice President, Global Relationship Manager |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $32,500,000 |
CITIBANK NA, |
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as a Lender |
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By: |
/s/ Janice D153Arco |
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Name: Janice D153Arco |
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Title: Vice President |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $32,500,000 |
DNB NOR BANK ASA, NEW YORK BRANCH, |
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as a Lender |
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By: |
/s/ Philip F. Kurpiewski |
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Name: Philip F. Kurpiewski |
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Title: Senior Vice President |
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By: |
/s/ Pal Boger |
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Name: P ¥l Boger |
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Title: Vice President |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $32,500,000 |
JPMORGAN CHASE BANK, N.A., |
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as a Lender |
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By: |
/s/ Richard W. Duker |
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Name: Richard W. Duker |
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Title: Managing Director |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $32,500,000 |
MIZUHO CORPORATE BANK, LTD., |
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as a Lender |
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By: |
/s/ David Lim |
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Name: David Lim |
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Title: Authorized Signatory |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $32,500,000 |
SUMITOMO MITSUI BANKING CORPORATION, |
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as a Lender |
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By: |
/s/ Shuji Yabe |
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Name: Shuji Yabe |
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Title: Managing Director |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $25,000,000 |
COMPASS BANK, |
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as a Lender |
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By: |
/s/ Susana Campuzano |
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Name: Susana Campuzano |
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Title: Vice President |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $15,625,000 |
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED, |
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as a Lender |
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By: |
/s/ Robert Grillo |
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Name: Robert Grillo |
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Title: Director |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $15,625,000 |
COMMERZBANK AG, |
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NEW YORK and GRAND CAYMAN BRANCHES, |
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as a Lender |
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By: |
/s/ Matthew Havens |
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Name: Matthew Havens |
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Title: Assistant Vice President |
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By: |
/s/ Sandy Bau |
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Name: Sandy Bau |
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Title: Associate |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $15,625,000 |
CREDIT SUISSE AG, |
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as a Lender |
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By: |
/s/ Ari Bruger |
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Name: Ari Bruger |
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Title: Vice President |
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By: |
/s/ Vipul Dhadda |
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Name: Vipul Dhadda |
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Title: Associate |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $15,625,000 |
DBS BANK LTD., LOS ANGELES AGENCY, |
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as a Lender |
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By: |
/s/ James McWalters |
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Name: James McWalters |
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Title: General Manager |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $15,625,000 |
FIFTH THIRD BANK, |
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as a Lender |
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By: |
/s/ Mary Ramsey |
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Name: Mary Ramsey |
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Title: Vice President |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $15,625,000 |
TD BANK NATIONAL ASSOCIATION,, |
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as a Lender |
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By: |
/s/ Mark Willner |
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Name: Mark Willner |
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Title: SVP |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $15,625,000 |
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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as a Lender |
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By: |
/s/ Scott Santa Cruz |
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Name: Scott Santa Cruz |
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Title: Managing Director |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $12,500,000 |
CREDIT AGRICOLE CORPORATE & INVESTMENT BANK, |
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as a Lender |
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By: |
/s/ Rachel Tresser |
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Name: Rachel Tresser |
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Title: Director |
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By: |
/s/ Yuri Muzichenko |
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Name: Yuri Muzichenko |
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Title: Director |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $9,375,000 |
SUNTRUST BANK, |
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as a Lender |
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By: |
/s/ J. Lance Walton |
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Name: J. Lance Walton |
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Title: Senior Vice President |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $6,250,000 |
COMERICA BANK, |
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as a Lender |
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By: |
/s/ Chris Rice |
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Name: Chris Rice |
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Title: AVP |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $6,250,000 |
NORDEA BANK FINLAND PLC |
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NEW YORK and GRAND CAYMAN BRANCHES, |
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as a Lender |
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Date: October 4, 2011 |
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By: |
/s/ Mogens R. Jensen |
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Name: Mogens R. Jensen |
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Title: Senior Vice President |
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Date: October 4, 2011 |
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By: |
/s/ Gerald Chelius |
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Name: Gerald Chelius |
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Title: Senior Vice President |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
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Incremental Term Loan A Amount: $6,250,000 |
FIRST COMMERCIAL BANK, |
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NEW YORK AGENCY, |
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as a Lender |
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By: |
/s/ Jason Lee |
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Name: Jason Lee |
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Title: VP & General Manager |
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SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
Schedule 1 to
Incremental Facility Activation Notice
NEW LENDERS
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Lender |
Address |
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Scotiabanc Inc. |
711 Louisiana Street, Suite 1400 Houston, Texas 77002 |
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Compass Bank |
24 Greenway Plaza, Suite 1400B Houston, Texas 77046 |
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Credit Suisse AG, Cayman Island Branch |
Eleven Madison Avenue New York, New York 10010 |
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Comerica Bank |
3551 Hamlin Road, 4th Floor Auburn Hills, Michigan 48326 |
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First Commercial Bank , New York Branch |
750 3rd Avenue, 34th Floor New York, New York 10017 |
SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
Annex A to
Incremental Facility Activation Notice
AMORTIZATION SCHEDULE
The Parent Borrower shall repay the outstanding principal amount of the
Incremental Term Loan A in installments on the dates and in the amounts set
forth in the table below (as such installments may hereafter be adjusted as a
result of prepayments made pursuant to Section 2.12 of the Credit Agreement),
unless accelerated sooner pursuant to Article VII of the Credit Agreement:
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Payment Dates |
Principal Amortization |
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December 31, 2011 |
0.00% |
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March 31, 2012 |
0.00% |
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June 30, 2012 |
0.00% |
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September 30, 2012 |
0.00% |
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December 31, 2012 |
0.00% |
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March 31, 2013 |
1.25% |
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June 30, 2013 |
1.25% |
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September 30, 2013 |
1.25% |
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December 31, 2013 |
1.25% |
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March 31, 2014 |
3.75% |
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June 30, 2014 |
3.75% |
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September 30, 2014 |
3.75% |
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December 31, 2014 |
3.75% |
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March 31, 2015 |
5.00% |
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June 30, 2015 |
5.00% |
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September 30, 2015 |
5.00% |
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December 31, 2015 |
5.00% |
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March 31, 2016 |
5.00% |
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Incremental Term Loan Maturity Date for the Incremental Term |
Outstanding principal amount of the Incremental Term Loan A |
SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
Annex B to
Incremental Facility Activation Notice
APPLICABLE RATE FOR INCREMENTAL TERM LOAN A
“Applicable Rate“: with respect to the Incremental Term Loan A, for
any day, the applicable rate per annum set forth below in the applicable grid,
based upon the Consolidated Leverage Ratio as of the most recent Determination
Date:
|
Pricing Tier |
Consolidated Ratio |
LIBO Rate Loans |
ABR Loans |
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1 |
< 1.0 to 1.0 |
1.50 |
% |
0.50 |
% |
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2 |
> 1.0 to 1.0 but < 1.5 to 1.0 |
1.75 |
% |
0.75 |
% |
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3 |
> 1.5 to 1.0 but < 2.0 to 1.0 |
2.00 |
% |
1.00 |
% |
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4 |
> 2.0 to 1.0 but < 3.0 to 1.0 |
2.125 |
% |
1.125 |
% |
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5 |
> 3.0 to 1.0 |
2.25 |
% |
1.25 |
% |
For purposes of the foregoing, (a) the Consolidated Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Parent Borrower153s fiscal
year based upon the Parent Borrower153s consolidated financial statements
delivered pursuant to Section 5.1(a) or (b), and (b) each change
in the Applicable Rate resulting from a change in the Consolidated Leverage
Ratio shall be effective during the period commencing on and including the date
of delivery to the Administrative Agent of such consolidated financial
statements indicating such change and ending on the date immediately preceding
the effective date of the next such change; provided that (i) Pricing
Tier 5 shall apply at any time that an Event of Default has occurred and is
continuing or (ii) at the option of the Administrative Agent or at the request
of the Required Lenders in respect of the Incremental Term Loan A, if a
Compliance Certificate is not delivered when due in accordance with Section
5.1(a) or (b), Pricing Tier 5 shall apply as of the first Business
Day after the date on which such Compliance Certificate was required to have
been delivered and shall continue to apply until the first Business Day
immediately following the date a Compliance Certificate is delivered in
accordance with Section 5.1(a) or (b), whereupon the Applicable
Rate shall be adjusted based upon the calculation of the Consolidated Leverage
Ratio contained in such Compliance Certificate. Notwithstanding the foregoing,
the Applicable Rate in effect from the Funding Date through the first Business
Day immediately following the date a Compliance Certificate is required to be
delivered pursuant to Section 5.1(b) for the fiscal quarter (and fiscal
year) ending December 31, 2011 shall be determined based upon the Consolidated
Leverage Ratio contained in the Incremental Term Loan Funding Date Certificate.
Notwithstanding anything to the contrary contained in this definition, the
determination of the Applicable Rate for any period shall be subject to the
provisions of Section 2.15(f) of the Credit Agreement.
SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
Exhibit 1 to
Incremental Facility Activation Notice
To: BANK OF AMERICA, N.A.,
as Administrative Agent under the Credit Agreement referred to below
Reference is hereby made to the Credit Agreement, dated as of June 30, 2011
(as amended by the First Amendment to Credit Agreement, dated as of October ,
2011, and as further amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement“), among SPX Corporation, a Delaware
corporation (the “Parent Borrower“), the Foreign Subsidiary Borrowers
from time to time parties thereto, the Lenders from time to time parties
thereto, Bank of America, N.A., as Administrative Agent (in such capacity, the
“Administrative Agent“) and Deutsche Bank AG Deutschlandgesch 164ft Branch,
as Foreign Trade Facility Agent. Unless otherwise defined herein, terms shall
have the meaning ascribed to such terms in the Credit Agreement or the Operative
Incremental Facility Activation Notice (as defined below), as applicable.
The undersigned [Chief Financial Officer][Vice President : Finance] of the
Parent Borrower certifies as follows:
1. I am the duly elected, qualified and acting [Chief Financial Officer][Vice
President : Finance] of the Parent Borrower.
2. I have reviewed and am familiar with the contents of the Incremental
Facility Activation Notice attached hereto as Exhibit A (the “Operative
Incremental Facility Activation Notice“).
3. I have reviewed the terms of the Credit Agreement and the other Loan
Documents and have made or caused to be made under my supervision, a review in
reasonable detail of the transactions and condition of the Parent Borrower
during the accounting period ended , 20 [insert most recent period for which
financial statements have been delivered]. Such review did not disclose the
existence during or at the end of the accounting period covered by the Parent
Borrower153s most recent financial statements delivered pursuant to Section 5.1(a)
or (b) of the Credit Agreement, and I have no knowledge of the existence, as of
the date of the Operative Incremental Facility Activation Notice, of any Default
or Event of Default, both on the date hereof and after giving pro forma effect
to any Loans made pursuant to the Operative Incremental Facility Activation
Notice and the application of the proceeds therefrom.
4. Attached hereto as Attachment 1 are the computations showing that
after giving pro forma effect to the making of the Incremental Term Loan A and
any other Loans on the Funding Date [and the substantially concurrent
Acquisition and related repayments of Indebtedness], the Parent Borrower shall
be in compliance with the financial covenants contained in Section 6.1 of the
Credit Agreement as of the last day of the most recent period of four
consecutive fiscal quarters of the Parent Borrower for which financial
statements have been delivered pursuant to Section 5.1(a) or (b) of the Credit
Agreement (calculated as if the Incremental Term Loan A and any other such Loans
had been incurred [and the substantially concurrent Acquisition and related
repayments of Indebtedness consummated] on the first day of such period).
SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
Attachment 1 to
Incremental Facility Activation Notice
[Set forth Compliance Calculations]
SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
Exhibit 2 to
Incremental Facility Activation Notice
[Form of Cash Collateral Agreement]
CASH COLLATERAL AGREEMENT
THIS CASH COLLATERAL AGREEMENT (this “Agreement“) dated as of [ ],
2011 is made and entered into among SPX Corporation, a Delaware corporation (the
“Pledgor“), Bank of America, N.A., as Administrative Agent (in such
capacity, the “Pledgee“) and Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the “Securities Intermediary“).
RECITALS
WHEREAS, credit facilities have been established in favor of the Pledgor and
certain of its subsidiaries pursuant to the terms of that certain Credit
Agreement, dated as of June 30, 2011 (as amended by the First Amendment to
Credit Agreement dated as of October , 2011, and as further amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement“), among the Pledgor, such subsidiaries, the lenders party
thereto, the Pledgee and Deutsche Bank AG, Deutschlandgesch 164ft Branch, as the
foreign trade facility agent;
WHEREAS, the Pledgor intends to make borrowings under (a) a $500,000,000
five-year term loan (“Term Loan A“), and (b) a $300,000,000 18-month term
loan (“Term Loan X“; together with the Term Loan A, the “Incremental
Term Loans“), in each case established pursuant to Section 2.1(b) of the
Credit Agreement, the proceeds of which shall be used as part of the
consideration to consummate the acquisition (the “Acquisition“) of Clyde
Union (Holdings) S. R.L. and may be used to repay debt outstanding at the time
of the funding of the Incremental Term Loans; and
WHEREAS, until used by the Pledgor as identified above, the proceeds of the
Incremental Term Loans shall be maintained in a blocked securities account
pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
Creation of Security Interest
Section 1.1. Defined Terms. As used herein, the terms “Securities
Account” and “Proceeds”, which are defined in the Uniform Commercial Code as in
effect from time to time in the State of New York (the “UCC“), are used
herein as so defined.
Section 1.2 Cash Collateral Account. The Pledgor has established the
following securities account with the Securities Intermediary (the “Cash
Collateral Account“):
Account Number:
Account Name: SPX Corporation Collateral Account for Bank of America,
N.A., in its capacity as Administrative Agent
SPX CORPORATION
INCREMENTAL FACILITY ACTIVATION NOTICE : TERM LOAN A
Unless used by the Pledgor, no later than five (5) business days following
the date of the funding of the Incremental Term Loans, to consummate the
Acquisition and/or repay debt as identified above, the Pledgor shall deposit the
proceeds of the Incremental Term Loans into the Cash Collateral Account.
Section 1.3 Grant of Security Interest. To secure the prompt payment
and performance in full when due, whether by lapse of time, acceleration,
mandatory prepayment or otherwise, of the Obligations, the Pledgor hereby
grants, pledges, assigns and transfers to the Pledgee, a continuing security
interest in any and all right, title and interest of the Pledgor, in and to the
Cash Collateral Account and all financial assets, investment property,
securities, cash and other property now or hereafter held therein, including
without limitation dividends payable in cash or stock and shares or other
proceeds of conversions or splits of any securities in the Cash Collateral
Account (collectively, the “Collateral“). Pledgor, Pledgee and the
Securities Intermediary agree that the Cash Collateral Account is a “securities
account” within the meaning of Article 8 of the UCC and that all Collateral held
in the Cash Collateral Account will be treated as financial assets under the
UCC. The Securities Intermediary shall have no obligation or duty to follow any
instructions given by the Pledgor with respect to the Cash Collateral Account,
except as provided in Section 6.1(e) below. The Pledgee shall have no
obligation or duty to follow any instructions of Pledgor, except as provided in
Section 4.1. The rights and interests granted hereunder are specifically
intended to convey “control” to the Pledgee over the Cash Collateral Account and
all amounts therein within the meaning of the UCC.
Section 1.4 The Pledgor hereby agrees to execute and deliver to the Pledgee
concurrently with the execution of this Agreement, and at any time or times
hereafter at the request of Pledgee, all assignments, conveyances, assignment
statements, financing statements, renewal financing statements, security
agreements, affidavits, notices and all other agreements, instruments and
documents that the Pledgee may reasonably request, and will execute all
necessary endorsements in order to perfect and maintain the security interests
and liens granted herein by the Pledgor to the Pledgee. In furtherance of the
foregoing, the Pledgor hereby appoints the Pledgee as its attorney-in-fact for
the purpose of making any of the foregoing endorsements and executing any such
financing statements, documents and agreements; provided, however, that the
Pledgee covenants to the Pledgor that it may act in the capacity as
attorney-in-fact granted hereunder only after the occurrence of an Event of
Default (here and hereinafter, as such term is defined the Credit Agreement) and
during the continuance thereof. The foregoing power of attorney shall be a power
coupled with an interest and shall be irrevocable until the Termination Date (as
defined below).
ARTICLE II
Priority of Security Interests
Section 2.1 The Pledgor represents and warrants that the security interest
created in Section 1.3 is a first priority security interest in favor of
the Pledgee, and shall constitute at all times a valid and perfected security
interest in the Collateral and that said security interest in said Collateral
shall not become subordinate or junior to the security interests, liens or
claims of any other person, firm or corporation, except for the Unsubordinated
Obligations (as defined below).
ARTICLE III
Default
Section 3.1 The Pledgor and the Pledgee hereby acknowledge and agree that
upon the
occurrence of an Event of Default and during the continuance thereof, the
Pledgee shall have, in respect of the Collateral, (a) after having provided five
(5) business days prior written notice to the Pledgor (or immediately upon the
occurrence of an event with respect to the Pledgor described in paragraph (h) or
(i) of Article VII of the Credit Agreement), the right, immediately and without
further action by the Pledgee, to notify the Securities Intermediary in writing
to deliver all assets in the Cash Collateral Account to the Pledgee for
application by the Pledgee against the Obligations (as defined in the Credit
Agreement), (b) all the rights and remedies contained in this Agreement, the
Loan Documents (here and hereinafter, as defined in the Credit Agreement) or
permitted by law and (c) all the rights and remedies of a secured party under
the UCC, all of which shall be cumulative to the extent permitted by law. The
Securities Intermediary agrees to promptly deliver all such assets in the Cash
Collateral Account to the Pledgee upon receipt of such written notice from the
Pledgee reference in clause (a) above.
Section 3.2 The Pledgee153s failure at any time or times hereafter to require
strict performance by the Pledgor of any of the provisions, warranties, terms
and conditions contained in this Agreement shall not waive, affect or diminish
any right of the Pledgee at any time or times hereafter to demand strict
performance therewith and with respect to any other provisions, warranties,
terms and conditions contained in this Agreement.
ARTICLE IV
Access/Release of Collateral
Section 4.1 Method for Disbursement.
(a) Upon the Pledgee153s receipt of a certificate of a financial officer of the
Pledgor, (i) certifying that the Acquisition is expected to be consummated no
later than five (5) business days following the advance of such funds in
accordance with the terms of the Acquisition in all material respects, including
receipt of all governmental, shareholder and third party consents and approvals
(including Hart-Scott-Rodino clearance) reasonably necessary in connection with
the Acquisition, (ii) certifying that at the time of the advance of the funds in
the Cash Collateral Account to the Pledgor and immediately after the
consummation of the Acquisition with such funds, no Specified Default (as
defined in the Credit Agreement) shall have occurred and be continuing, or would
occur after giving effect to the Acquisition, (iii) containing a calculation of
the covenants contained in Section 6.1 of the Credit Agreement demonstrating
that the Pledgor shall be in compliance, on a pro forma basis (as contemplated
in the Credit Agreement), after giving effect to the Acquisition, with such
covenants, in each case recomputed as at the last day of the most recently ended
fiscal quarter of the Pledgor for which the relevant information is available
and (iv) setting forth wiring instructions for the account(s) into which the
funds from the Cash Collateral Account shall be deposited, the Pledgee promptly
shall instruct the Securities Intermediary to terminate the Cash Collateral
Account, to liquidate all investments in the Cash Collateral Account and to
disburse the entire amount of funds held in the Cash Collateral to the Pledgor
(using the wiring instructions provided in the certificate described above).
(b) If the Pledgor determines in its discretion that the Acquisition will not
be consummated, upon receipt by the Pledgee of written instructions from the
Pledgor to do so, the Pledgee promptly shall instruct the Securities
Intermediary in writing to terminate the Cash Collateral Account, to liquidate
all investments in the Cash Collateral Account and to disburse the entire amount
of funds held in the Cash Collateral Account to the Pledgee, for prompt
application thereof by the Pledgee for repayment of the outstanding principal
amount of the Incremental Term Loans.
ARTICLE V
Representations and Warranties
Section 5.1 The Pledgor hereby represents and warrants that:
(a) it has the corporate right, power and authority to execute, deliver and
perform this Agreement and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement;
(b) this Agreement constitutes a legal, valid and binding obligation of the
Pledgor, enforceable against the Pledgor in accordance with its terms, except as
such enforceability may be limited by the Bankruptcy Code of the United States
and other applicable debtor relief laws and by general principles of equity and
principles of good faith and fair dealing; and
(c) the execution, delivery and performance of this Agreement will not
violate any provision of any applicable law or material contractual obligation
of the Pledgor.
ARTICLE VI
Securities Account Provisions
Section 6.1 The parties hereto agree (which agreement by the Pledgor will be
construed as instructions to the Securities Intermediary):
(a) The Securities Intermediary is instructed to register the pledge on its
books. The Securities Intermediary shall hold all certificated securities that
comprise all or part of the Collateral with proper endorsements to the
Securities Intermediary or in blank, or, upon the written request of the
Pledgee, will deliver possession of such certificated securities to the Pledgee;
provided that the Pledgee hereby covenants to the Pledgor that it shall make no
such written request except after the occurrence of an Event of Default during
the continuance thereof.
(b) The Securities Intermediary is instructed to deliver to the Pledgee and
the Pledgor copies of monthly statements on the Cash Collateral Account and,
upon request by either the Pledgee or the Pledgor, account balance
verifications.
(c) The Cash Collateral Account will be styled as provided in Section
1.2 above.
(d) All dividends, interest, gains and other profits with respect to the Cash
Collateral Account will be reported in the name and tax identification number of
the Pledgor.
(e) The Securities Intermediary may not, without the prior written consent of
Pledgee, deliver, release or otherwise dispose of the Collateral or any interest
therein unless the proceeds thereof are held or reinvested in the Cash
Collateral Account as part of the Collateral or applied by Securities
Intermediary to the satisfaction of an Unsubordinated Obligation (as defined
below) owed to it. The Pledgee shall have exclusive control over the Cash
Collateral Account; provided, however, the Securities Intermediary may
comply with orders or instructions from Pledgor regarding the purchase and sale
of, and the investment or reinvestment of proceeds from the sale of securities,
cash dividends, interest, income, earnings and other distributions in the Cash
Collateral Account until a reasonable period of time after the Securities
Intermediary receives written notification from the Pledgee that the Securities
Intermediary shall comply with the orders and instructions of the Pledgee
only with respect to the purchase and sale of, and the investment or
reinvestment of proceeds from the sale of securities, cash dividends, interest,
income, earnings and other distributions; provided that the Pledgee covenants to
the Pledgor that it may provide such written notification only after the
occurrence of an Event of Default and during the continuance thereof.
(f) The Pledgor authorizes the Securities Intermediary, and the Securities
Intermediary agrees, to comply with any order or instruction from Pledgee
concerning the Cash Collateral Account, including an order or instruction
directing sale, transfer or redemption of all or part of the Collateral and the
remittance of the proceeds thereof, if any, to Pledgee, without further consent
by the Pledgor; provided that the Pledgee acknowledges and agrees that it may
deliver such order or instruction only after the occurrence of an Event of
Default and during the continuance thereof. Securities Intermediary shall have
no responsibility or liability to Pledgor for complying with any order or
instruction, whether oral or written, concerning the Cash Collateral Account,
the Collateral, any interest therein, or the proceeds thereof originated by
Pledgee and shall have no responsibility to investigate the appropriateness of
any such order or instruction, even if Pledgor notifies Securities Intermediary
that Pledgee is not legally entitled to originate any such order or instruction.
The Securities Intermediary shall have no responsibility or liability to Pledgee
for complying with any order or instruction, whether oral or written, concerning
the Cash Collateral Account, the Collateral, any interest therein, or the
proceeds thereof originated by Pledgor except to the extent such compliance
would cause Securities Intermediary to violate any of the provisions hereof,
including subsection 6.1(e) above. The Securities Intermediary shall be
able to rely upon any notice, order or instruction that it reasonably believes
to be genuine. The Securities Intermediary shall have no responsibility or
liability to Pledgee with respect to the value of the Cash Collateral Account or
any of the Collateral. This Agreement does not create any obligation or duty on
the part of Securities Intermediary other than those expressly set forth herein.
(g) The Securities Intermediary shall not be liable for any loss or damage
with respect to any matter that may arise out of or in connection with this
Agreement or any action taken or not taken pursuant hereto, except to the extent
caused by Securities Intermediary153s gross negligence or willful misconduct. In
no event shall Securities Intermediary be liable for special, indirect,
exemplary, punitive or consequential damages, including without limitation lost
profits, regardless of any notice. Notwithstanding any other provision of this
Agreement, Securities Intermediary shall have no liability to Pledgor or Pledgee
for any losses or damages resulting from any failure to comply with any
instruction or order concerning the Cash Collateral Account, the Collateral, any
interest therein, or the proceeds thereof or from delay in complying with such
instruction or order if compliance would require Securities Intermediary to
violate any then-existing injunction or order of any court of competent
jurisdiction, including without limitation in any bankruptcy case under Title
11, United States Code.
(h) The Pledgor hereby indemnifies and hold the Securities Intermediary, its
directors, officers, employees, and agents harmless from and against any and all
claims, causes of action, liabilities, losses, lawsuits, demands, damages, costs
and expenses, including without limitation court costs and reasonable attorneys153
fees and expenses and allocated costs of in-house counsel, that may arise out of
or in connection with this Agreement or any action taken or not taken pursuant
hereto, except to the extent caused by Securities Intermediary153s gross
negligence or willful misconduct. The obligations of the Pledgor set forth in
this subsection (h) shall survive the termination of this Agreement.
(i) The Securities Intermediary is instructed that the Cash Collateral
Account is to remain a “cash account” within the meaning of Regulation T issued
by the Board of Governors of the Federal Reserve System. The Securities
Intermediary represents that it has not received notice regarding any lien,
encumbrance or other claim to the Collateral or the Cash Collateral Account from
any other person and has not entered into an agreement with any third party to
act on such third party153s instructions without
further consent of the Pledgor. The Securities Intermediary further agrees
not to enter into any such agreement with any third party.
(j) The Securities Intermediary subordinates to the lien and security
interest of the Pledgee any right of setoff, encumbrance, security interest,
lien or other claim that it may have against the Collateral, except for any
lien, claim, encumbrance or right of set off against the Cash Collateral Account
for (i) customary commissions and fees arising from permitted trading activity
within the Cash Collateral Account, and (ii) payment owed to Securities
Intermediary for open trade commitments for the purchase and/or sale of
financial assets in and for the Cash Collateral Account (the “Unsubordinated
Obligations“).
(k) To the extent a conflict exists between the terms of this Agreement and
any account agreement between the Pledgor and the Securities Intermediary, the
terms of this Agreement will control, provided that this Agreement shall not
alter or affect any mandatory arbitration provision currently in effect between
Securities Intermediary and Pledgor.
(l) Except as otherwise expressly provided herein, any notice, order,
instruction, request or other communication required or permitted to be given
under this Agreement shall be in writing and may be delivered in person, sent by
facsimile or other electronic means if electronic confirmation of error free
receipt is received, or sent by United States mail, postage prepaid, addressed
to the party at the address set forth below.
(m) Any notice, order, instruction, request or other communication from the
Pledgee to the Securities Intermediary required to be in writing shall be on the
Pledgee153s letterhead and signed by an authorized representative of the Pledgee.
The Pledgee may change its authorized representatives by written notice to the
Securities Intermediary which notice shall include the name, title and specimen
signature of each new authorized representative of Pledgee.
(n) The Securities Intermediary will be excused from failing to act or delay
in acting, and no such failure or delay shall constitute a breach of this
Agreement or otherwise give rise to any liability of the Securities
Intermediary, if (i) such failure or delay is caused by circumstances beyond the
reasonable control of the Securities Intermediary, including without limitation
legal constraint, emergency conditions, action or inaction of governmental,
civil or military authority, terrorism, fire, strike, lockout or other labor
dispute, war, riot, theft, flood, earthquake or other natural disaster,
breakdown of public or private or common carrier communication or transmission
facilities, equipment failure, or act, negligence or default of Pledgor or
Pledgee or (ii) such failure or delay resulted from Securities Intermediary153s
reasonable belief that the action would have violated any guideline, rule or
regulation of any governmental authority.
(o) Pledgor agrees to pay Securities Intermediary, upon receipt of Securities
Intermediary153s invoice, all reasonable costs, expenses and attorneys153 fees
(including without limitation allocated costs of in-house counsel) incurred in
the preparation and administration of this Agreement (including any amendments
hereto or instruments or agreements required hereunder). Pledgor and Pledgee
jointly and severally agree to pay Securities Intermediary, upon receipt of
Securities Intermediary153s invoice, all reasonable costs, expenses and attorneys153
fees (including without limitation allocated costs of in-house counsel) incurred
by Securities Intermediary in connection with the enforcement of this Agreement
or any instrument or agreement required hereunder, including without limitation
any reasonable costs, expenses, and fees arising out of the resolution of any
conflict, dispute, motion regarding entitlement to rights or rights of action,
or other action to enforce Securities Intermediary153s rights hereunder in a case
arising under Title 11, United States Code. This subsection (o) shall
survive termination of this Agreement.
(p) Notwithstanding any of the other provisions of this Agreement, in the
event of the commencement of a case pursuant to Title 11, United States Code,
filed by or against Pledgor, or in the event of the commencement of any similar
case under then applicable federal or state law providing for the relief of
debtors or the protection of creditors by or against Pledgor, Securities
Intermediary may act as Securities Intermediary deems necessary to comply with
all applicable provisions of governing statutes and neither Pledgor nor Pledgee
shall assert any claim against Securities Intermediary for so doing.
ARTICLE VII
Miscellaneous
Section 7.1 Governing Law; Submission to Jurisdiction; Venue.
(a) This Agreement 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).
(b) Each party to this Agreement hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any Agent or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
against any Borrower or its properties in the courts of any jurisdiction.
(c) Each party to this Agreement hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, (i) any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in subsection (b) of this Section 7.1, (ii) the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court and (iii) any right it may have to claim or recover in any
legal action or proceeding referred to in this Section 7.1 any special,
exemplary, punitive or consequential damages (as opposed to direct or actual
damages).
(d) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.1 of the Credit Agreement.
Nothing in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
Section 7.2 Continuing Security Interest. This Agreement shall create
a continuing security interest in the Collateral in favor of the Pledgee and
shall be binding upon the Pledgor, the Securities Intermediary and the Pledgee,
to the benefit of the Pledgee and its successors and permitted assigns;
provided, however, the Pledgor may not assign its rights or
delegate its duties hereunder without the prior written consent of the requisite
lenders under the Credit Agreement.
Section 7.3 Termination. This Agreement and the security interest
granted herein shall terminate upon the earlier to occur (the date of such
occurrence, the “Termination Date“) of (a) written notice to the
Securities Intermediary from the Pledgee, which notice the Pledgee covenants to
the Pledgor to make
promptly upon (i) repayment in full of all Incremental Term Loans and
termination of the commitments with respect to the Incremental Term Loans or
(ii) the disbursement of all funds in the Cash Collateral Account pursuant to
the terms of Section 4.1 and (b) the Securities Intermediary153s
termination of this Agreement by giving thirty (30) days153 prior written notice
to Pledgor and Pledgee; provided that with respect to this clause (c), at
the end of such thirty (30) day period, the Securities Intermediary will deliver
all assets held in the Cash Collateral Account to Pledgee unless Pledgor and
Pledgee deliver joint instructions to Securities Intermediary to deliver or
transfer the assets in the Cash Collateral Account to another party or
securities intermediary, and in the event that it is not possible or
practicable, in the judgment of the Securities Intermediary, to transfer the
Collateral or deliver the Collateral to any other party, the Securities
Intermediary will sell such assets and deliver the proceeds according to the
instructions provided by the Pledgee or the joint instructions given by the
Pledgee and Pledgor. Termination shall not affect any of the rights or
liabilities of the parties hereto incurred before the date of termination.
Section 7.4 Counterparts. This Agreement may be executed in any number
of counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
Section 7.5 Severability. If any provision of this Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
Section 7.6 Customary Fees and Expenses of Securities Intermediary.
Upon receipt of an invoice from the Securities Intermediary, the Pledgor shall
pay to the Securities Intermediary the reasonable, customary fees and other
reasonable, standard costs and charges of the Securities Intermediary relating
to the maintenance of the Cash Collateral Account as are from time to time
outstanding.
[Remainder of page intentionally left blank]
Each of the parties hereto has caused a counterpart of this Agreement to be
duly executed and delivered as of the date first above written.
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PLEDGOR: |
SPX CORPORATION, a Delaware corporation, |
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as Pledgor |
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By: |
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Name: |
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Title: |
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PLEDGEE: |
BANK OF AMERICA, N.A., in its capacity as Administrative Agent, |
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as Pledgee |
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By: |
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Name: |
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Title: |
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SECURITIES |
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INTERMEDIARY: |
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, |
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as Securities Intermediary |
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By: |
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Name: |
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Title: |
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