AMENDMENT NUMBER THREE
TO
CREDIT AGREEMENT
THIS AMENDMENT NUMBER THREE TO CREDIT AGREEMENT (this "Amendment") is
made as of this 2nd day of September, 1999 by and among BANK OF AMERICA, N.A.
formerly known as Bank of America National Trust and Savings Association, a
national banking association, and U.S. BANK NATIONAL ASSOCIATION, a national
banking association (each a "Lender"), BANK OF AMERICA, N.A. formerly known as
Bank of America National Trust and Savings Association, a national banking
association, as agent for the Lenders (the "Agent"), and FLOW INTERNATIONAL
CORPORATION, a Washington corporation ("Borrower").
RECITALS
A. Lenders, Agent and Borrower are parties to that certain Credit
Agreement dated as of August 31, 1998, as amended by that Amendment Number One
to Credit Agreement dated as of March 26, 1999 and as amended by that Amendment
Number Two to Credit Agreement dated as of June 21, 1999 (the "Credit
Agreement").
B. Borrower has requested, and Lenders and Agent have agreed to
amend the Credit Agreement upon certain terms and conditions contained in this
Amendment.
NOW, THEREFORE, the parties hereto agree as follows:
AGREEMENT
1. DEFINITIONS. Capitalized terms not otherwise defined in this
Amendment shall have the meanings set forth in the Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is
amended as follows:
a. AMENDMENT TO DEFINITION OF "APPLICABLE INTEREST
PERIOD." In Section 1.1, the definition of "Applicable Interest Period" is
hereby amended as follows:
"APPLICABLE INTEREST PERIOD" means, with respect to any Loan accruing
interest at the LIBOR Rate or the Multi-Currency Rate, the period
commencing on the
first date Borrower elects to have such rate apply to such Loan and
ending one, two, three or six months thereafter as specified in the
Interest Rate Notice given in respect of such Loan (or as otherwise
determined in accordance with the terms of this Agreement) PROVIDED,
that in no event may the Applicable Interest Period for any Revolving
Loan extend beyond the Revolving Maturity Date and in no event may the
Applicable Interest Period for any Multi-Currency Loan extend beyond
the Multi-Currency Maturity Date and PROVIDED, FURTHER, that for
Applicable Interest Periods selected after January 31, 2000 and prior
to April 30, 2000, the Borrower may, in addition to the preceding
options, select Applicable Interest Periods of 7, 14 or 21 days in
duration.
b. AMENDMENTS TO DEFINITION OF "APPLICABLE MARGIN." In
Section 1.1, the definition of "Applicable Margin" is hereby amended as follows:
"APPLICABLE MARGIN" means on any date, with respect to any LIBOR Loans
or Multi-Currency Loans, the rate per annum that is determined by
reference to the following matrix or subclauses (ii) and (iii) below:
Senior Funded Debt Ratio as of the end
Applicable
of the previous fiscal quarter Margin
------------------------------ ------
Less than 2.0: .75%
Equal to or greater than 2.0:1
and less than 2.35:1 .90%
Equal to or greater than 2.35:1
and less than 2.6:1 1.00%
Equal to or greater than 2.60:1
and less than 3.0:1 1.25%
FOR THE FISCAL QUARTER ENDING
ON OCTOBER 31, 1999:
--------------------
Equal to or greater than 3.0:1
and less than 3.5:1 1.50%
Equal to or greater than 3.5:1
and less than 4.25:1 1.75%
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AND FOR FISCAL QUARTERS ENDING
ON JANUARY 31, 2000:
--------------------
Equal to or greater than 3.0:1
and less than 4.25:1 2.50%
(i) Subject to the limitations and exceptions set forth below, the
Applicable Margin shall be adjusted forty-five (45) days after the end
of each of the first three fiscal quarters in each of Borrower's fiscal
years and ninety (90) days after the end of each fiscal year of
Borrower.
(A) In the event that any of the financial statements or quarterly
compliance certificates required to be delivered pursuant to Section
6.9 are not delivered when due, then (aa) if such financial statements
and certificates are delivered after the date such financial statements
and certificates were required to be delivered (without giving effect
to any applicable cure period) and the Applicable Margin increases from
that previously in effect as a result of the delivery of such financial
statements, then the Applicable Margin during the period from the date
upon which such financial statements were required to be delivered
(without giving effect to any applicable cure period) until the date
upon which they actually are delivered shall, except as otherwise
provided in clause (cc) below, be the Applicable Margin as so
increased; (bb) if such financial statements and certificates are
delivered after the date such financial statements and certificates are
required to be delivered (without giving effect to any applicable cure
period) and the Applicable Margin decreases from that previously in
effect as a result of the delivery of such financial statements, then
such decrease in the Applicable Margin shall not become effective until
the date upon which the financial statements and certificates actually
were delivered; and (cc) if such financial statements and certificates
are not delivered prior to the expiration of the applicable cure
period, then, effective upon such expiration, for the period from
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the date upon which such financial statements and certificates were
required to be delivered (after the expiration of the applicable cure
period) until two (2) Business Days following the date upon which they
actually are delivered, the Applicable Margin shall be 2.50% (250 basis
points).
(B) As used herein, "Interim Period" shall mean the period beginning on
January 31, 2000 and continuing until the earlier of (aa) the date on
which the Applicable Margin is set under subclause (iii) hereof or (bb)
the first date after the fiscal quarter ending April 30, 2000 on which
the Applicable Margin would be reset under subclause (i)(A). Unless as
of January 31, 2000 (aa) the Senior Secured Funded Debt Ratio is equal
to or greater than 3.0:1 and less than 4.25:1 and (bb) Borrower has
failed to secure an aggregate of $25,000,000 in new equity infusions,
Subordinated Debt or Senior Unsecured Debt, then the Applicable Margin
for the Interim Period shall be set as provided elsewhere in this
definition. If both such conditions are true, however, the Applicable
Margin for the Interim Period will be set as follows: The Applicable
Margin will be established at 2.50% as of January 31, 2000 (rather than
forty-five days thereafter) and shall continue at such rate for the
remainder of the Interim Period, PROVIDED, HOWEVER, that if prior to
the expiration of the Interim Period, Borrower secures an aggregate of
$25,000,000 in new equity infusions, Subordinated Debt or Senior
Unsecured Debt, the Applicable Margin will be lowered to 1.00% for the
balance of the Interim Period.
(ii) Notwithstanding the foregoing to the contrary, however, if
Borrower fails to provide Agent with an executed Mandate on or before
November 15, 1999, then the Applicable Margin will be 2.50% at all
times from November 16, 1999 until the date on which Borrower secures
an aggregate of an additional $25,000,000 in equity infusions,
Subordinated Debt or Senior Unsecured Debt. As used in this definition,
"Mandate" shall mean an agreement with an investment banking firm in
form and substance reasonably satisfactory to Lenders to obtain for
Borrower Subordinated Debt,
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Senior Unsecured Debt or equity contributions in an aggregate amount of
not less than $25,000,000 for funding on or before April 29, 2000.
(iii) Notwithstanding the foregoing to the contrary (including
subclause (ii) of this definition)and without limiting any other rights
which the Agent or Lenders may have under any Loan Document or
applicable law in respect thereof, at any time that Borrower is in
default of its obligations under either Section 6.13 or 6.17 of this
Agreement, the Applicable Margin will be 5.00%.
c. AMENDMENT TO DEFINITION OF "APPLICABLE UNUSED FEE
PERCENTAGE." In Section 1.1, the definition of "Applicable Unused Fee
Percentage" is hereby amended by adding the following sentence at the conclusion
of such definition:
At all times that the Applicable Margin is greater than 1.75%, the
Applicable Unused Fee Percentage will be 37.5 basis points.
d. AMENDMENT TO DEFINITION OF "MAJORITY LENDERS." In
Section 1.1, the definition of "Majority Lenders" is hereby amended as follows:
"MAJORITY LENDERS" means at any time Lenders then holding in excess of
seventy-five percent (75%) of the aggregate unpaid principal amount of
the Commitments.
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e. AMENDMENT TO DEFINITION OF "MULTI-CURRENCY MATURITY
DATE." In Section 1.1, the definition of "Multi-Currency Maturity Date" is
hereby amended as follows:
"MULTI-CURRENCY MATURITY DATE" means September 30, 2003.
f. AMENDMENT TO DEFINITION OF "TANGIBLE NET WORTH." In
Section 1.1, the definition of "Tangible Net Worth" is hereby amended as
follows:
"TANGIBLE NET WORTH" means the total assets less total liabilities
excluding, however, from the determination of total assets: (a)
intangible assets, (such as goodwill, patents, trademarks, copyrights,
franchises and deferred taxes, including unamortized debt discount and
research and development costs); (b) cash held in a sinking fund or
other similar fund established for the purpose of redemption or other
retirement of capital stock; (c) reserves for depreciation, depletion,
obsolescences, or amortization of properties and other reserves or
appropriations of retained earnings which have been established in
connection with Borrower's business; and (d) any revaluation or other
write-up in book value of assets subsequent to the fiscal year of
Borrower last ended as of August 31, 1998; and, for clarification
purposes, excluding from total liabilities, minority interests.
g. DELETION OF DEFINITION OF "TOTAL LIABILITIES." In
Section 1.1, the definition of "Total Liabilities" is hereby deleted.
h. ADDITION OF DEFINITION OF "SENIOR UNSECURED DEBT." In
Section 1.1, the following definition of "Senior Unsecured Debt" is hereby added
as follows:
"SENIOR UNSECURED DEBT" means Indebtedness for borrowed monies incurred
by Borrower, which Indebtedness (a) is evidenced by loan agreement(s),
promissory note(s) or other documents and instruments in each case in
form and substance reasonably satisfactory to Lenders, (b) is wholly
unsecured, (c)
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is owing to one or more financial institutions, and (d) does not have a
final maturity date for the repayment of principal on or before
April 30, 2005.
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i. ADDITION OF DEFINITION OF "SENIOR FUNDED DEBT RATIO."
In Section 1.1, the following definition of "Senior Funded Debt Ratio" is hereby
added as follows:
"SENIOR FUNDED DEBT RATIO" shall have the meaning given in Section
6.17.
j. ADDITION OF DEFINITION OF "SUBORDINATED DEBT." In
Section 1.1, the following definition of "Subordinated Debt" is hereby added as
follows:
"SUBORDINATED DEBT" means all Indebtedness of Borrower where the terms
of the instrument or agreement creating or evidencing such Indebtedness
has been approved in writing by Lenders and Agent and provides that
such Indebtedness is subordinated in right of payment to the
Indebtedness of Borrower to Lenders hereunder and unsecured (and
therefore subordinated in lien priority).
k. AMENDMENT TO SECTION 2.2(a). Section 2.2(a) is hereby
amended by reversing the references to "Article 4" and "Article 5."
l. AMENDMENT TO SECTION 6.1. Section 6.1 is hereby
amended and restated as follows:
SECTION 6.1 USE OF PROCEEDS. The proceeds of the Loans and the Letters
of Credit will be used only for working capital, other general
corporate purposes, and for Acquisitions permitted under Section 7.2
and 7.4.
m. AMENDMENT TO SECTION 6.9(a). Section 6.9(a) is hereby
amended and restated as follows:
(a) ANNUAL AUDITED FINANCIAL STATEMENTS. As soon as available and
in any event within ninety (90) days after the end of each fiscal year
of Borrower, the consolidated balance sheet of Borrower and its
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income and the consolidated statement of
retained earnings and statement of cash flows of Borrower and its
Subsidiaries for such year, accompanied by (i) the
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audit report thereon by independent certified public accountants
selected by Borrower and reasonably satisfactory to Agent (which
reports shall be prepared in accordance with GAAP and shall not be
qualified by reason of restricted or limited examination of any
material portion of the records of Borrower or any Subsidiary and
shall contain no disclaimer of opinion or adverse opinion except
such as Agent in its sole discretion determines to be immaterial)and
(ii) an Officer's Certificate of Borrower certifying that as of the
close of such year no Event of Default or Default had occurred and
was continuing;
n. AMENDMENT TO SECTION 6.9(b). Section 6.9(b) is hereby
amended and restated as follows:
(b) QUARTERLY UNAUDITED FINANCIAL STATEMENTS. As soon as available
and in any event within forty-five (45) days after the end of each of
the first three fiscal quarters of Borrower, the unaudited consolidated
balance sheet of Borrower as of the end of such fiscal quarter and the
unaudited consolidated statement of income and consolidated statement
of cash flows of Borrower for the fiscal year to the end of such fiscal
quarter, unless the same has been provided in the form of Borrower's
Form 10Q; accompanied by an Officer's Certificate of Borrower
certifying that (i) such reports have been prepared in accordance with
GAAP consistently applied and results of operation of Borrower as at
the end of and for such fiscal quarter and that since the previous
fiscal year-end report referred to in clause (a) there has been no
material adverse change in the financial condition of Borrower and that
(ii) as of the close of such fiscal quarter no Event of Default or
Default had occurred and was continuing;
o. AMENDMENT TO SECTION 6.9(f). Section 6.9(f) is hereby
amended and restated as follows:
(f) COMPLIANCE CERTIFICATES. Within ninety (90) days after the
close of each fiscal year of Borrower and within forty-five (45) days
after the close of each of Borrower's fiscal quarters (other than the
fourth
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fiscal quarter), an officer's certificate signed by the chief financial
officer of Borrower stating that to the best of the signer's knowledge
and belief after due inquiry no Default or Event of Default had
occurred and was continuing and setting forth calculations evidencing
compliance with Sections 6.12, 6.13, 6.14, 6.15, and 6.17 hereof;
p. AMENDMENT TO SECTION 6.13. Section 6.13 is hereby
amended and restated as follows:
SECTION 6.13 FUNDED DEBT RATIO. As of the end of each fiscal quarter,
Borrower shall maintain, on a consolidated basis, a Funded Debt Ratio
of not more than (a) 3.0 to 1 for fiscal quarters ending from the date
hereof until the date on which Borrower acquires both ABB Pressure
Systems and ABB Autoclave Systems, (b) 4.0 to 1 for fiscal quarters
ending on and after the date on which Borrower acquires both ABB
Pressure Systems and ABB Autoclave Systems through and including
October 30, 1999, (c) 4.25 to 1 for fiscal quarters ending on October
31, 1999 and thereafter. As used herein "Funded Debt Ratio" shall mean
as of the end of any fiscal quarter, the quotient obtained by dividing
(a) the Funded Debt as of the end of such fiscal quarter by (b) the
EBITDA for such quarter and the three immediately preceding fiscal
quarters, PLUS, in the event that Borrower has acquired any
Subsidiaries during such fiscal quarter or during the immediately
preceding three fiscal quarters, the EBITDA of such Subsidiaries from
the first day of the immediately preceding three fiscal quarters
through the date of acquisition of each Subsidiary, EXCEPT, HOWEVER,
the EBITDA of ABB Pressure Systems and ABB Autoclave Systems for the
fiscal quarters ending prior to the fiscal quarter ending July 31,
1999. "Funded Debt" shall mean all interest bearing liabilities of
Borrower, including capitalized lease obligations. "EBITDA" shall mean
pre-tax net income (or pre-tax net loss), PLUS, the sum of (i) interest
expense, (ii) depreciation expense, (iii) depletion expense, and (iv)
amortization expense.
q. AMENDMENT TO SECTION 6.14. Section 6.14 is hereby
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amended and restated as follows:
SECTION 6.14. MINIMUM NET WORTH. Borrower shall maintain, on a
consolidated basis, as at the end of each fiscal quarter, a Tangible
Net Worth equal to or greater than the then applicable Minimum Net
Worth. "Minimum Net Worth" shall mean $25,000,000, PLUS cumulative
quarterly increases equal to fifty percent (50%) of Borrower's net
income for all fiscal quarters ending on or after July 31, 1999,
excluding any adjustments thereto for losses, PLUS all amounts
contributed to Borrower as equity at any time after September 1, 1999.
r. AMENDMENT TO SECTION 6.15. Section 6.15 is hereby
amended and restated as follows:
SECTION 6.15 DEBT TO TANGIBLE NET WORTH RATIO. Borrower shall maintain,
on a consolidated basis, as at the end of each fiscal quarter
commencing with the fiscal quarter ending October 31, 1998, a ratio of
Debt to Tangible Net Worth of not more than (a) 1.75 to 1 as at the
fiscal quarters ending October 31, 1998 and January 31, 1999, (b) 4.0
to 1 as at the fiscal quarter ending April 30, 1999, (c) 3.85 to 1 as
at the fiscal quarter ending July 31, 1999, (d) 4.25 to 1 as at the
fiscal quarter ending October 31, 1999, (e) 4.25 to 1 as at the fiscal
quarter ending January 31, 2000, (f) 3.25 to 1 as at the fiscal
quarters ending April 30, 2000, July 31, 2000, October 31, 2000 and
January 31, 2001, and (g) 2.50 to 1 as at the fiscal quarters ending
April 30, 2001 and thereafter. As used herein, "Debt" shall mean, on a
consolidated basis, all liabilities of Borrower as determined and
computed in accordance with GAAP other than Senior Unsecured Debt,
Subordinated Debt, and for clarification purposes only, minority
interests.
s. NEW SECTION 6.17. A new Section 6.17 is hereby added
to the Credit Agreement:
SECTION 6.17 SENIOR FUNDED DEBT RATIO. As of the end of the fiscal
quarter ending on January 31, 2000, Borrower shall maintain, on a
consolidated basis, a
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Senior Funded Debt Ratio of not more than 4.25 to 1. As of the end of
each fiscal quarter ending on or after April 30, 2000, Borrower shall
maintain, on a consolidated basis, a Senior Funded Debt Ratio of not
more than 3.0 to 1. As used herein, "Senior Funded Debt Ratio" shall
mean as of the end of any fiscal quarter, the quotient obtained by
dividing (a) the sum of Funded Debt less Senior Unsecured Debt and less
Subordinated Debt, each as of the end of such fiscal quarter by (b) the
EBITDA for such quarter and the three immediately preceding fiscal
quarters, PLUS, in the event that Borrower has acquired any
Subsidiaries during such fiscal quarter or during the immediately
preceding three fiscal quarters, the EBITDA of such Subsidiaries from
the first day of the immediately preceding three fiscal quarters
through the date of acquisition of each Subsidiary, EXCEPT, HOWEVER,
the EBITDA of ABB Pressure Systems and ABB Autoclave Systems for the
fiscal quarters ending prior to the fiscal quarter ending July 31,
1999. "Funded Debt" shall mean all interest bearing liabilities of
Borrower, including capitalized lease obligations. "EBITDA" shall mean
pre-tax net income (or pre-tax net loss), PLUS, the sum of (i) interest
expense, (ii) depreciation expense, (iii) depletion expense, and
(iv) amortization expense.
t. AMENDMENT TO SECTION 7.2. Section 7.2 is hereby
amended and restated as follows:
SECTION 7.2 LIQUIDATION, MERGER, SALE OF ASSETS. Neither Borrower nor
any Guarantor shall liquidate, dissolve or enter into any
consolidation, joint venture, partnership or other combination or sell,
lease, or dispose of (including through transfers to any Subsidiary
that has not executed a guaranty and security agreement pursuant to
Section 6.16) all or any substantial portion of its business or assets
or of any Collateral (excepting sales of goods in the ordinary course
of business). Neither Borrower nor any Guarantor shall merge with any
other person except that the Borrower or Guarantor may merge with
another person engaged in business similar or related to Borrower's
PROVIDED that (a) such a merger is an
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Acquisition, (b) prior to such Acquisition, no Default or Event of
Default has occurred nor is continuing and such Acquisition shall
not cause a Default or an Event of Default hereunder, (c) ten (10)
days prior to such Acquisition, Borrower provides to Agent and each
Lender written notice of such Acquisition and evidence that such
Acquisition complies with the terms and conditions contained herein,
and (d) the amount of such Acquisition, together with the amount of
all other acquisitions consummated within the twelve (12)
consecutive months (including all other Acquisitions by merger or
otherwise as permitted under this Section 7.2 and Section 7.4
hereof), does not exceed $10,000,000.
u. AMENDMENT TO SECTION 7.3. Section 7.3 is hereby
amended and restated as follows:
SECTION 7.3 INDEBTEDNESS. Neither Borrower nor any Guarantor shall
create, incur or become liable for any Indebtedness except (a) the
Loans and Indebtedness hereunder in respect of the Letters of Credit
and Swap Documents, (b) existing Indebtedness reflected on the balance
sheets referred to in Section 5.7, (c) current accounts payable or
accrued or other current liabilities incurred by Borrower or Guarantor
in the ordinary course of business, (d) indebtedness for the deferred
purchase price, or for obligations under leases, of real and personal
property used by Borrower or Guarantor in its business, (e)
Indebtedness incurred in respect of any Acquisition permitted under
Section 7.2 or 7.4, which, in the aggregate, measured on any rolling
twelve (12) month period, does not exceed Five Million Dollars
($5,000,000, and (f) Senior Unsecured Debt and Subordinated Debt which
when taken together do not exceed, in the aggregate, at any one time
outstanding, Twenty-Five Million Dollars ($25,000,000).
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v. AMENDMENT TO SECTION 7.4. Section 7.4 is hereby
amended and restated as follows:
SECTION 7.4 INVESTMENTS. Borrower shall not make any loan or advance to
any person or purchase or otherwise acquire the capital stock, assets
or obligations of, or any interest in, any person, except (a)
commercial bank time deposits maturing within one year, (b) marketable
general obligations of the United States or a State or marketable
obligations fully guaranteed by the United States, (c) short-term
commercial paper with the highest rating of a generally recognized
rating service; (d) the Acquisition of Spearhead Automated Systems,
Inc. (d) an Acquisition of another person engaged in business similar
or related to Borrower's PROVIDED that (i) prior to such Acquisition,
no Default or Event of Default has occurred nor is continuing and such
Acquisition shall not cause a Default or an Event of Default hereunder,
(ii) ten (10) days prior to such Acquisition, Borrower provides to
Agent and each Lender written notice of such Acquisition and evidence
that such Acquisition complies with the terms and conditions contained
herein, and (iii) the amount of such Acquisition, together with the
amount of all other acquisitions consummated within the twelve (12)
consecutive months (including any Acquisitions by merger as permitted
under Section 7.2 hereof), does not exceed $10,000,000.
w. NEW SECTION 7.9. A new Section 7.9 is hereby added to
the Credit Agreement:
SECTION 7.9 SENIOR UNSECURED DEBT. Borrower shall maintain no funds on
deposit with, shall not acquire any certificates of deposit or other
financial instruments from, nor hold any Indebtedness owing to Borrower
by, any Senior Unsecured Bank unless such Senior Unsecured Bank shall
first have executed a written agreement in favor of Lenders (in form
and substance acceptable to Lenders) subordinating or waiving its
rights to set-off or to assert any "bankers lien." Borrower shall
comply at all times with all terms and conditions set forth in any
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document or instrument evidencing any Senior Unsecured Debt and shall
take all other actions as may be necessary to ensure that at all times
(before or after the expiration of any applicable grace periods), no
Senior Unsecured Bank shall have the right to accelerate the maturity
of any installment of the Senior Unsecured Debt.
x. AMENDMENT TO SECTION 8.1(c). Section 8.1(c) is hereby
amended and restated as follows:
(c) BREACH OF CERTAIN COVENANTS. Borrower shall have failed to
comply with Sections 6.2, 6.8, 6.10(e), 6.12, 6.13, 6.14, 6.15, 6.17,
any provision of Article 7 of this Agreement, or, to the extent that it
relates to the obtaining and maintaining of insurance or delivery of
evidence of same, Section 11 of the Security Agreement; or
3. AMENDMENT FEE. On the date of this Amendment, Borrower shall
pay to Agent, for the account of Lenders, an amendment fee equal to Seventy
Thousand Dollars ($70,000) (the "Amendment Fee"). Such fee shall be fully earned
upon the execution of this Amendment and irrevocable upon payment.
4. CONDITIONS TO EFFECTIVENESS. Notwithstanding anything
contained herein to the contrary, this Amendment shall not become effective
until each of the following conditions is fully and simultaneously satisfied:
a. DELIVERY OF AMENDMENT. Borrower, Agent and each
Lender shall have executed and delivered counterparts of this Amendment to
Agent.
b. PAYMENT OF AMENDMENT FEE. Borrower shall have paid
the Amendment Fee to Agent.
c. REPRESENTATIONS TRUE; NO DEFAULT. The representations
of Borrower as set forth in Article 5 of the Credit Agreement shall be true on
and as of the date of this Amendment with the same force and effect as if made
on and as of this date. No Event of Default and no event which, with notice or
lapse of time or both, would constitute a Event of Default, shall have occurred
and be continuing or will occur as a result
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of the execution of this Amendment.
5. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to the Lenders and Agent that each of the representations and
warranties set forth in Article 5 of the Credit Agreement is true and correct in
each case as if made on and as of the date of this Amendment and Borrower
expressly agrees that it shall be an additional Event of Default under the
Credit Agreement if any representation or warranty made hereunder shall prove to
have been incorrect in any material respect when made.
6. NO FURTHER AMENDMENT. Except as expressly modified by the
terms of this Amendment, all of the terms and conditions of the Credit Agreement
and the other Loan Documents shall remain in full force and effect and the
parties hereto expressly reaffirm and ratify their respective obligations
thereunder.
7. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Washington.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same agreement.
9. ORAL AGREEMENTS NOT ENFORCEABLE.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
Number Three to Credit Agreement as of the date first above written.
BORROWER: FLOW INTERNATIONAL CORPORATION
By
_________________________________________
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Its
______________________________
LENDERS: BANK OF AMERICA, N.A.
By
_________________________________________
Its
______________________________
U.S. BANK NATIONAL ASSOCIATION
By
_________________________________________
Its
______________________________
AGENT: BANK OF AMERICA, N.A.
By
_________________________________________
Its
______________________________
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