FIRST AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as
of June 11, 1998 (the "AMENDMENT") among OEA, INC., a Delaware corporation (the
"COMPANY"), each of the banks named under the caption "Banks" on the signature
pages hereof (individually, a "BANK" and, collectively, the "BANKS"), BANQUE
NATIONALE DE PARIS, U.S. BANK NATIONAL ASSOCIATION and UNION BANK OF CALIFORNIA,
N.A., as Co-Agents and THE NORTHERN TRUST COMPANY, as agent for the Banks (in
such capacity, together with its successors in such capacity, the "AGENT").
WHEREAS, the Company, the Agent, the Co-Agents and the Banks have entered
into an Amended and Restated Revolving Credit Agreement (the "EXISTING
AGREEMENT") dated as of April 10, 1998 pursuant to which the Banks agreed to
make Loans (as defined in the Existing Agreement) to the Company in an aggregate
principal amount not to exceed $180,000,000 at any time outstanding, on and
subject to the terms and conditions thereof; and
WHEREAS, the parties wish to amend the Existing Agreement to (a) add a
letter of credit facility, (b) modify certain covenants, and (c) increase
pricing.
NOW, THEREFORE, the parties agree as follows:
SECTION 1. DEFINITIONS. Terms defined in the introductory paragraphs
hereof shall have their respective defined meanings when used in this Amendment
and, except as otherwise expressly provided herein, terms defined in the
Existing Agreement shall have their respective defined meanings when used in
this Amendment. In addition, the following terms shall have the following
meanings (terms defined in the introductory paragraphs or this SECTION 1 in the
singular to have correlative meanings when used in the plural and VICE VERSA):
"EFFECTIVE DATE" shall mean the first date, if any, which occurs
before the termination of this Amendment pursuant to SECTION 5 hereof and
on which the conditions precedent in SECTION 3 shall have been satisfied.
SECTION 2. AMENDMENTS TO EXISTING AGREEMENT. The following amendments
are hereby made to the Existing Agreement with effect from and after the
Effective Date:
(a) DEFINITIONS. SECTION 1.1 of the Existing Agreement is amended
by (i) amending and restating in its entirety the definition of "APPLICABLE
MARGIN" as follows and (ii) adding the following new definitions in alphabetical
order:
"APPLICABLE MARGIN" shall mean, for any period and for the type of
Loan or fee indicated below, the number of basis points per annum set forth
below corresponding with the applicable ratio of consolidated Indebtedness
of the Company and its Subsidiaries to EBITDA plus interest income as
determined in accordance with SECTION 8.11 hereof:
INDEBTEDNESS TO EBITDA RATIO
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
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RATIO GREATER THAN OR LESS THAN 3.75:1.0 but LESS THAN 3.0:1.0 but LESS THAN 2.5:1.0 but LESS THAN 2.0:1.0
EQUAL TO 3.75:1.0 GREATER THAN OR EQUAL GREATER THAN OR EQUAL GREATER THAN OR EQUAL
TO 3.0:1.0 TO 2.5:1.0 TO 2.0:1.0
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FACILITY FEE 25.0 25.0 12.5 12.5 12.5
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FED FUNDS RATE 125 100 80 70 60
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LIBOR RATE 125 100 80 70 60
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For purposes of determining the Applicable Margin, consolidated
Indebtedness to EBITDA shall be calculated by the Company as provided in
SECTION 8.11 hereof as of the end of each of its fiscal quarters and shall
be reported to the Agent pursuant to a certificate executed by a senior
financial officer of the Company and delivered concurrently with the
certificate required by SECTION 8.1 hereof. The Applicable Margin shall be
adjusted, if necessary, effective on and after the first Business Day after
the date of receipt by the Agent of the certificate required to be
delivered pursuant to SECTION 8.1 hereof; provided, however, that if such
certificate, together with the financial statements to which such
certificate relates, are not delivered by the required delivery date, then
Level I pricing shall apply until the date such certificate is actually
delivered and unless it indicates that a lower Level is applicable.
Notwithstanding the foregoing, Level II pricing shall apply until the
fiscal quarter ended on January 31, 1999.
"CASH COLLATERALIZE" means, to pledge and deposit with or deliver to the
Agent, for the benefit of the Agent, the Issuing Lender and the Banks, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Agent and the Issuing
Lender (which documents are hereby consented to by the Banks). Derivatives of
such term shall have corresponding meaning.
"HONOR DATE" has the meaning specified in SECTION 2.12(c)(ii).
"INSOLVENCY PROCEEDING" means, (a) any case, action or proceeding before
any court or other governmental authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshaling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors, undertaken under U.S. Federal, state or foreign law, including
the Bankruptcy Code.
"ISSUING LENDER" means, The Northern Trust Company in its capacity as
issuer of one or more Letters of Credit hereunder, together with any replacement
letter of credit issuer arising under SUBSECTION 10.1.
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"L/C ADVANCE" means, each Bank's participation in any L/C Borrowing in
accordance with its Pro Rata Share.
"L/C AMENDMENT APPLICATION" means, an application form for amendment of
outstanding standby or commercial documentary letters of credit as shall at any
time be in use at the Issuing Lender, as the Issuing Lender shall request.
"L/C APPLICATION" means, an application form for issuances of standby or
commercial documentary letters of credit as shall at any time be in use at the
Issuing Lender, as the Issuing Lender shall request.
"L/C BORROWING" means, an extension of credit under SUBSECTION 2.12(c)(iv)
resulting from a drawing under any Letter of Credit which shall not have been
reimbursed on the date when made or converted into a borrowing of Loans.
"L/C COMMITMENT" means, the commitment of the Issuing Lender to issue, and
the commitment of the Banks severally to participate in Letters of Credit from
time to time issued or outstanding under SECTION 2.12, in an aggregate amount
not to exceed on any date the amount of $5,000,000, as the same shall be reduced
as a result of a reduction in the L/C Commitment pursuant to SECTION 2.5;
provided that the L/C Commitment is a part of the combined Commitments, rather
than a separate, independent commitment.
"L/C OBLIGATIONS" means, at any time the sum of the following reimbursement
obligations (whether contingent or otherwise) of the Company (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus (b) the amount of
all unreimbursed drawings under all Letters of Credit, including all outstanding
L/C Borrowings.
"L/C RELATED DOCUMENTS" means, the Letters of Credit, the L/C Applications,
the L/C Amendment Applications and any other document relating to any Letter of
Credit, including any of the Issuing Lender's standard form documents for letter
of credit issuances.
"LEVEL" mean any of the five ratio ranges applicable to the Indebtedness to
EBITDA ratio as set forth in the table contained in the definition of
"Applicable Margin."
"LETTERS OF CREDIT" means, any letters of credit (whether standby letters
of credit or commercial documentary letters of credit) issued by the Issuing
Lender pursuant to SECTION 2.12.
"PRO RATA SHARE" means, as to any Bank at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at such
time of such Bank's Commitment divided by the Commitments of all Banks.
(b) DEFINITION OF EBITDA. The definition of "EBITDA" in
SECTION 1.1 of the Existing Agreement is hereby amended to add the following
sentence at the end thereof: "For purposes of calculating EBITDA for the fiscal
quarter of the Company ended on May 1, 1998 only, including as such EBITDA
amount for such quarter may be included in financial covenant calculations
hereunder, EBITDA shall be increased by an amount of up to $22,500,000 of
non-cash Special Charges only, and shall not be increased by any cash Special
Charges. For purposes
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hereof, "SPECIAL CHARGES" means charges of up to $26,900,000 taken by the
Company during the fiscal quarter ended May 1, 1998 for (i) initiator
consolidation, (ii) inflator quality, (iii) Autoliv settlement, (iv) equipment
obsolescence, (v) inventory write down, (vi) aerospace obsolescence and
(vii) other special charges."
(c) AMENDMENT TO SECTION 2.3(a). The first sentence of SECTION
2.3(a) of the Existing Agreement is amended by adding the following phrase at
the end thereof: "less such Banks' Pro Rata Share participation interest in L/C
Obligations".
(d) AMENDMENT TO SECTION 2.5(a). SECTION 2.5(a) of the Existing
Agreement is amended by (i) adding the phrase "and L/C Obligations" at the end
of CLAUSE (iii) thereof; (ii) deleting the word "and" before CLAUSE (iv); (iii)
adding the phrase "and its participation interest in the L/C Obligations" to the
end of CLAUSE (iv); and (v) adding new CLAUSE (v) as follows: "(v) the "L/C
Obligations shall not exceed the L/C Commitment".
(e) AMENDMENT TO SECTION 2.6(a). SECTION 2.6(a) of the Existing
Agreement is hereby amended by deleting the phrase "at a rate of .125% per
annum" and substituting the phrase "at the Applicable Margin specified for
"Facility Fee" in the definition of Applicable Margin".
(f) SECTION 2.11(a) THE EXISTING AGREEMENT. The last sentence of
SECTION 2.11(a) of the Existing Agreement is amended by deleting everything
after the reference to Section 5.5 therein and substituting the following
therefor: "if any, and Cash Collateralize such Bank's Pro Rata Share of L/C
Obligations, whereupon such Withdrawing Bank shall cease to be obligated to make
further Loans hereunder, to participate in any Letter of Credit and its
Commitment shall be reduced to zero and it shall be released from all its
obligations under this Agreement".
(g) SECTION 2.11(b) OF THE EXISTING AGREEMENT. SECTION 2.11(b) of
the Existing Agreement is hereby amended by adding the phrase "and Cash
Collateralize any such Bank's Pro Rata Share of L/C Obligations" before the
phrase "in accordance with the provisio" appearing in the first sentence
thereof.
(h) SECTION 2.11(c) OF THE EXISTING AGREEMENT. SECTION 2.11(c) of
the Existing Agreement is hereby amended by adding the phrase "and its Pro Rata
Share of L/C Obligations has been Cash Collateralized" at the end of CLAUSE (ii)
thereof.
(i) SECTION 2.11(f) OF THE EXISTING AGREEMENT. The first two
sentences of SECTION 2.11(f) of the Existing Agreement are amended and restated
in their entirety as follows:
"If any Loans or Letters of Credit shall be outstanding at the time an
Assignment Agreement becomes effective, (i) the Company shall repay such
portion of such Loans and borrow an equal principal amount of new Loans
from the Bank which has acceded or increased its Commitment hereunder and
(ii) the new Bank shall purchase participations in the outstanding L/C
Obligations from the Banks, so that after giving effect to such prepayment
and borrowing of Loans and participation in L/C Obligations, the Loans and
L/C Obligations are held PRO RATA among the Banks in accordance with the
Commitments.
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The Banks shall make disbursements among themselves to give effect to such
prepayment and borrowing and participations pursuant to instructions from
the Agent."
(j) SECTION 2.12 OF THE EXISTING AGREEMENT. A new SECTION 2.12 is
hereby added to the Existing Agreement as follows:
"2.12. LETTERS OF CREDIT.
(a) THE LETTER OF CREDIT SUBFACILITY. (i) On the terms and
conditions set forth herein (A) the Issuing Lender agrees, from time to
time on any Business Day during the period from June 11, 1998 to the
Termination Date to issue Letters of Credit for the account of the Company
and/or the Company jointly and severally with any Subsidiary thereof, and
to amend or renew Letters of Credit previously issued by it, in accordance
with SUBSECTIONS 2.12(b)(iii) and (iv) and to honor drafts under the
Letters of Credit; and (B) the Banks severally agree to participate in
Letters of Credit issued for the account of the Company and/or the Company
jointly and severally with any Subsidiary thereof; provided, that the
Issuing Lender shall not be obligated to issue, and no Bank shall be
obligated to participate in, any Letter of Credit if as of the date of
issuance of such Letter of Credit (the "ISSUANCE DATE") (1) the amount of
all L/C Obligations plus the amount of all Loans exceeds the combined
Commitments of all the Banks, (2) the participation of any Bank in the
amount of all L/C Obligations plus the amount of the Loans of such Bank
exceeds such Bank's Commitment, or (3) the amount of L/C Obligations
exceeds the L/C Commitment. Within the foregoing limits, and subject to
the other terms and conditions hereof, the Company's ability to obtain
Letters of Credit shall be fully revolving, and, accordingly, the Company
may, during the foregoing period, obtain Letters of Credit to replace
Letters of Credit which have expired or which have been drawn upon and
reimbursed.
(ii) The Issuing Lender is under no obligation to issue any Letter of
Credit if:
(A) any order, judgment or decree of any governmental authority or
arbitrator shall by its terms purport to enjoin or restrain the Issuing
Lender from issuing such Letter of Credit, or any requirement of law
applicable to the Issuing Lender or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over the Issuing Lender shall prohibit, or request that the
Issuing Lender refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the Issuing Lender
with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the Issuing Lender is not otherwise compensated
hereunder) not in effect on June 11, 1998, or shall impose upon the Issuing
Lender any unreimbursed loss, cost or expense which was not applicable on
June 11, 1998 and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to
it;
(B) the Issuing Lender has received written notice from any Bank,
the Agent or the Company, on or prior to the Business Day prior to the
requested date of issuance of such Letter of Credit, that one or more of
the applicable conditions contained in SECTION 6 is not then satisfied;
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(C) the expiry date of any requested Letter of Credit is (1) more
than 360 days after the date of issuance, unless the Majority Banks have
approved such expiry date in writing, or (2) after the Termination Date,
unless all of the Banks have approved such expiry date in writing;
(D) the expiry date of any requested standby Letter of Credit is
prior to the maturity date of any financial obligation to be supported by
the requested Letter of Credit and the beneficiary thereof would have the
right to draw the full amount thereof if the letter of credit is not
renewed or replaced;
(E) any requested Letter of Credit does not provide for drafts, or
is not otherwise in form and substance acceptable to the Issuing Lender, or
the issuance of a Letter of Credit shall violate any applicable policies of
the Issuing Lender;
(F) any standby Letter of Credit is for the purpose of supporting
the issuance of any letter of credit by any other Person; or
(G) such Letter of Credit is in an initial face amount less than
$250,000 or to be used for a purpose other than in connection with the
Company's existing lines of business or denominated in a currency other
than Dollars.
(b) ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT. (i)
Each Letter of Credit shall be issued upon the irrevocable written request
of the Company received by the Issuing Lender (with a copy sent by the
Company to the Agent if different from the Issuing Lender) at least four
days (or such shorter time as the Issuing Lender may agree in a particular
instance in its sole discretion) prior to the proposed date of issuance.
Each such request for issuance of a Letter of Credit shall be by facsimile,
confirmed immediately in an original writing, in the form of an L/C
Application, and shall specify in form and detail satisfactory to the
Issuing Lender: (A) the proposed date of issuance of the Letter of Credit
(which shall be a Business Day); (B) the face amount of the Letter of
Credit; (C) the expiry date of the Letter of Credit; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented by
the beneficiary of the Letter of Credit in case of any drawing thereunder;
(F) the full text of any certificate to be presented by the beneficiary in
case of any drawing thereunder; and (G) such other matters as the Issuing
Lender may require.
(ii) At least two Business Days prior to the issuance of any Letter
of Credit, the Issuing Lender will confirm with the Agent (by telephone or
in writing) that the Agent has received a copy of the L/C Application or
L/C Amendment Application from the Company and, if not, the Issuing Lender
will provide the Agent with a copy thereof. Unless the Issuing Lender has
received notice on or before the second Business Day immediately preceding
the date the Issuing Lender is to issue a requested Letter of Credit from
the Agent directing the Issuing Lender not to issue such Letter of Credit
because such issuance is not then permitted under SUBSECTION 2.12(a)(i) as
a result of the limitations set forth in CLAUSES (1) THROUGH (3) thereof or
SUBSECTION 2.12(a)(ii)(B), then, subject to the terms and conditions
hereof, the Issuing Lender shall, on the requested date, issue a Letter of
Credit for the account of the Company and/or the Company jointly and
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severally with any Subsidiary thereof in accordance with the Issuing
Lender's usual and customary business practices.
(iii) From time to time while a Letter of Credit is outstanding and
prior to the Termination Date, the Issuing Lender will, upon the written
request of the Company received by the Issuing Lender (with a copy sent by
the Company to the Agent) at least five days (or such shorter time as the
Issuing Lender may agree in a particular instance in its sole discretion)
prior to the proposed date of amendment, amend any Letter of Credit issued
by it. Each such request for amendment of a Letter of Credit shall be made
by facsimile, confirmed immediately in an original writing, made in the
form of an L/C Amendment Application and shall specify in form and detail
satisfactory to the Issuing Lender: (A) the Letter of Credit to be amended;
(B) the proposed date of amendment of the Letter of Credit (which shall be
a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the Issuing Lender may require. The Issuing Lender shall
be under no obligation to amend any Letter of Credit if: (X) the Issuing
Lender would have no obligation at such time to issue such Letter of Credit
in its amended form under the terms of this Agreement; or (Y) the
beneficiary of any such Letter of Credit does not accept the proposed
amendment to the Letter of Credit. The Agent will promptly notify the
Banks of the receipt by it of any L/C Application or L/C Amendment
Application.
(iv) The Issuing Lender and the Banks agree that, while a Letter of
Credit is outstanding and prior to the Termination Date, at the option of
the Company and upon the written request of the Company received by the
Issuing Lender (with a copy sent by the Company to the Agent) at least five
days (or such shorter time as the Issuing Lender may agree in a particular
instance in its sole discretion) prior to the proposed date of notification
of renewal, the Issuing Lender shall be entitled to authorize the automatic
renewal of any Letter of Credit issued by it. Each such request for
renewal of a Letter of Credit shall be made by facsimile, confirmed
immediately in an original writing, in the form of an L/C Amendment
Application, and shall specify in form and detail satisfactory to the
Issuing Lender: (A) the Letter of Credit to be renewed; (B) the proposed
date of notification of renewal of the Letter of Credit (which shall be a
Business Day); (C) the revised expiry date of the Letter of Credit; and (D)
such other matters as the Issuing Lender may require. The Issuing Lender
shall be under no obligation so to renew any Letter of Credit if: (X) the
Issuing Lender would have no obligation at such time to issue or amend such
Letter of Credit in its renewed form under the terms of this Agreement; or
(Y) the beneficiary of any such Letter of Credit does not accept the
proposed renewal of the Letter of Credit. If any outstanding Letter of
Credit shall provide that it shall be automatically renewed unless the
beneficiary thereof receives notice from the Issuing Lender that such
Letter of Credit shall not be renewed, and if at the time of renewal the
Issuing Lender would be entitled to authorize the automatic renewal of such
Letter of Credit in accordance with this SUBSECTION 2.12(B)(IV) upon the
request of the Company but the Issuing Lender shall not have received any
L/C Amendment Application from the Company with respect to such renewal or
other written direction by the Company with respect thereto, the Issuing
Lender shall nonetheless be permitted to allow such Letter of Credit to
renew, and the Company and the Banks hereby authorize such renewal, and,
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accordingly, the Issuing Lender shall be deemed to have received an L/C
Amendment Application from the Company requesting such renewal.
(v) The Issuing Lender may, at its election (or as required by the
Agent at the direction of the Majority Banks), deliver any notices of
termination or other communications to any Letter of Credit beneficiary or
transferee, and take any other action as necessary or appropriate, at any
time and from time to time, in order to cause the expiry date of such
Letter of Credit to be a date not later than the Termination Date.
(vi) This Agreement shall control in the event of any conflict with
any L/C Related Document (other than any Letter of Credit).
(vii) The Issuing Lender will also deliver to the Agent,
concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or
amendment to or renewal of a Letter of Credit.
(c) RISK PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS. (i)
Immediately upon the issuance of each Letter of Credit, each Bank shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Issuing Lender a participation in such Letter of Credit and each
drawing thereunder in an amount equal to the product of (A) the Pro Rata
Share of such Bank, times (B) the maximum amount available to be drawn
under such Letter of Credit and the amount of such drawing, respectively.
For purposes of SECTION 2.3(a), each Issuance of a Letter of Credit shall
be deemed to utilize the Commitment of each Bank by an amount equal to the
amount of such participation.
(ii) In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, the Issuing Lender will
promptly notify the Company. The Company shall reimburse the Issuing
Lender prior to 10:00 a.m. Chicago time, on each date that any amount is
paid by the Issuing Lender under any Letter of Credit (each such date, an
"HONOR DATE"), in an amount equal to the amount so paid by the Issuing
Lender. In the event the Company fails to reimburse the Issuing Lender for
the full amount of any drawing under any Letter of Credit by 10:00 a.m.,
Chicago time, on the Honor Date, the Issuing Lender will promptly notify
the Agent and the Agent will promptly notify each Bank thereof and the
Company shall be deemed to have requested Alternate Base Rate Loan(s) be
made by the Banks to be disbursed on the Honor Date under such Letter of
Credit, subject to the amount of the unutilized portion of the Commitment
and subject to the conditions set forth in SECTION 6. Any notice given by
the Issuing Lender or the Agent pursuant to this SUBSECTION 2.12(c)(ii) may
be oral if immediately confirmed in writing (including by facsimile);
provided that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.
(iii) Each Bank shall upon any notice pursuant to SUBSECTION
2.12(c)(ii) make available to the Agent for the account of the Issuing
Lender an amount in Dollars and in immediately available funds equal to its
Pro Rata Share of the amount of the drawing, whereupon the participating
Banks shall (subject to SUBSECTION 2.12(c)(iv)) each be
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deemed to have made a Loan consisting of Alternate Base Rate Loan to the
Company in that amount. If the aforesaid notice is received on or before
12:00 noon, Chicago, time, each Bank shall make its Pro Rata Share of the
amount of the drawing available to the Agent on the Honor Date. If such
notice is received after 12:00 noon, Chicago time, each Bank shall make its
Pro Rata Share of the amount of the drawing available to the Agent before
12:00 noon, Chicago time, on the Business Day following the Honor Date. If
any Bank so notified fails to make available to the Agent for the account
of the Issuing Lender the amount of such Bank's Pro Rata Share of the
amount of the drawing by the date and times specified in this SUBSECTION
2.12(c)(iii), then interest shall accrue on such Bank's obligation to make
such payment, from the date due to the date such Bank makes such payment,
at a rate per annum equal to the Federal Funds Rate in effect from time to
time during such period. The Agent will promptly give notice of the
occurrence of the Honor Date, but failure of the Agent to give any such
notice on the Honor Date shall not relieve such Bank from its obligations
under this SECTION 2.12(c).
(iv) With respect to any unreimbursed drawing that is not converted
into Loans consisting of Alternate Base Rate Loans to the Company in whole
or in part, because of the Company's failure to satisfy the conditions set
forth in SECTION 6.3 or for any other reason, the Company shall be deemed
to have incurred from the Issuing Lender an L/C Borrowing in the amount of
such drawing, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at a rate per annum equal
to the Alternate Base Rate plus 2% per annum, and each Bank's payment to
the Issuing Bank pursuant to SUBSECTION 2.12(c)(iii) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Bank in satisfaction of its
participation obligation under this SECTION 2.12(c)
(v) Each Bank's obligation in accordance with this Agreement to
make the Loans or L/C Advances, as contemplated by this SECTION 2.12(c), as
a result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the Issuing Lender and shall not be
affected by any circumstance, including (A) any set-off, counterclaim,
recoupment, defense or other right which such Bank may have against the
Issuing Lender, the Company or any other Person for any reason whatsoever;
(B) the occurrence or continuance of a Default or an Event of Default or
(C) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing; provided, however, that each Bank's
obligation to make Loans under this SECTION 2.12(c) is subject to the
conditions set forth in SECTION 6.3. Nothing in this subsection is
intended to, and shall not preclude, any Bank's pursuing such rights and
remedies as it may have against the Issuing Lender in the event a drawing
is paid as a result of the Issuing Lender's gross negligence or willful
misconduct.
(d) REPAYMENT OF PARTICIPATION (i) Upon (and only upon) receipt by the
Agent for the account of the Issuing Lender of immediately available funds from
the Company (A) in reimbursement of any payment made by the Issuing Lender under
the Letter of Credit with respect to which any Bank has paid the Agent for the
account of the Issuing Lender for such Bank's participation in the Letter of
Credit pursuant to SECTION 2.12(c) or (B) in payment of interest thereon, the
Agent will pay to each Bank, in the same funds as those received by the Agent
for the account of the Issuing Lender, the amount of such Bank's Pro Rata Share
of such
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funds, and the Issuing Lender shall receive the amount of the Pro Rata Share of
such funds of any Bank that did not so pay the Agent for the account of the
Issuing Lender.
(ii) If the Agent or the Issuing Lender is required at any time to
return to the Company, or to a trustee, receiver, liquidator, custodian, or
any official in any Insolvency Proceeding, any portion of the payments made
by the Company to the Agent for the account of the Issuing Lender pursuant
to SUBSECTION 2.12(d) in reimbursement of a payment made under the Letter
of Credit or interest or fee thereon, each Bank shall, on demand of the
Agent, forthwith return to the Agent or the Issuing Lender the amount of
its Pro Rata Share of any amounts so returned by the Agent or the Issuing
Lender plus interest thereon from the date such demand is made to the date
such amounts are returned by such Bank to the Agent or the Issuing Lender,
at a rate per annum equal to the Federal Funds Rate in effect from time to
time.
(e) ROLE OF THE ISSUING BANK (i) Each Bank and the Company agree that, in
paying any drawing under a Letter of Credit, the Issuing Lender shall not have
any responsibility to obtain any document (other than any sight draft and
certificates expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.
(ii) Neither the Agent nor the Issuing Lender or their respective
officers, directors, employees or agents, nor any of the respective
correspondents, participants or assignees of the Issuing Lender shall be
liable to any Bank for: (A) any action taken or omitted in connection
herewith at the request or with the approval of the Banks (including the
Majority Banks, as applicable); (B) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (C) the due
execution, effectiveness, validity or enforceability of any L/C Related
Document.
(iii) The Company hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and
shall not, preclude the Company's pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other
agreement. Neither the Agent nor the Issuing Lender or their respective
officers, directors, employees or agents, nor any of the respective
correspondents, participants or assignees of the Issuing Lender, shall be
liable or responsible for any of the matters described in CLAUSES (i)
THROUGH (vii) of SECTION 2.12(f); provided, however, anything in such
clauses to the contrary notwithstanding, that the Company may have a claim
against the Issuing Lender, and the Issuing Lender may be liable to the
Company, to the extent, but only to the extent, of any direct, as opposed
to consequential or exemplary, damages suffered by the Company which the
Company proves were caused by the Issuing Lender's willful misconduct or
gross negligence or the Issuing Lender's willful failure to pay under any
Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions
of a Letter of Credit. In furtherance and not in limitation of the
foregoing: (A) the Issuing Lender may accept documents that appear on
their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary; and
(B) the Issuing Lender shall not be responsible for the validity or
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sufficiency of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.
(f) OBLIGATIONS ABSOLUTE. The obligations of the Company under this
Agreement and any L/C Related Document to reimburse the Issuing Lender for a
drawing under a Letter of Credit, and to repay any L/C Borrowing and any drawing
under a Letter of Credit converted into Loans, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C Related Document under all circumstances,
including the following:
(i) any lack of validity or enforceability of this Agreement or
any L/C Related Document;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of the Company in respect
of any Letter of Credit or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right
that the Company may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Issuing Lender or
any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C Related Documents or any
unrelated transaction;
(iv) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any
Letter of Credit;
(v) any payment by the Issuing Lender under any Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of any Letter of Credit; or any payment made by the
Issuing Lender under any Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of any Letter of Credit, including any
arising in connection with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
other guarantee, for all or any of the obligations of the Company in
respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Company or a guarantor.
-11-
(g) CASH COLLATERAL PLEDGE. Upon (i) the request of the Agent, (A) if the
Issuing Lender has honored any full or partial drawing request on any Letter of
Credit and such drawing has resulted in an L/C Borrowing hereunder, or (B) if,
as of the Termination Date, any Letters of Credit may for any reason remain
outstanding and partially or wholly undrawn, or (ii) the occurrence of the
circumstances described in SUBSECTION 3.2(c) requiring the Company to Cash
Collateralize Letters of Credit, then, the Company shall immediately Cash
Collateralize the L/C Obligations in an amount equal to such L/C obligations.
In connection with its Cash Collateralization requirements under this SECTION
2.12 or under other provisions of this Agreement, the Company hereby grants the
Agent, for the benefit of the Agent, the Issuing Lender and the Banks, a
security interest in all such cash and deposit account balances. Cash
Collateral shall be maintained in blocked, non-interest bearing deposit accounts
at The Northern Trust Company.
(H) LETTER OF CREDIT FEES. (i) The Company shall pay to the Agent for the
account of each of the Banks a letter of credit fee with respect to each
outstanding Letter of Credit equal to the Applicable Margin applicable to the
"LIBOR Rate" category for the Level of pricing in effect at the time of issuance
of such Letter of Credit times the average daily maximum amount available to be
drawn on such Letter of Credit, computed on a quarterly basis in arrears on the
last Business Day of each calendar quarter upon each Letter of Credit
outstanding for that quarter as calculated by the Agent. Such letter of credit
fees shall be due and payable quarterly in arrears on the Quarterly Dates during
which Letters of Credit are outstanding, commencing on the first such Quarterly
Date to occur after the issuance date, through the Termination Date (or such
later date upon which the outstanding Letters of Credit shall expire), with the
final payment to be made on the Termination Date (or such later expiration
date).
(ii) The Company shall pay to the Issuing Lender a letter of credit
fronting fee for each Letter of Credit issued by the Issuing Lender equal
to 1/8 of 1% of the face amount (or increased face amount, as the case may
be) of such Letter of Credit. Such Letter of Credit fronting fee shall be
due and payable on each date of issuance of a Letter of Credit.
(iii) The Company shall pay to the Issuing Lender from time to time
on demand the normal issuance, presentation, amendment, evergreen, drawing
and other processing fees, and other standard costs and charges, of the
Issuing Lender relating to letters of credit as from time to time in
effect.
(i) UNIFORM CUSTOMS AND PRACTICE The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce most
recently at the time of issuance of any Letter of Credit shall (unless otherwise
expressly provided in the Letters of Credit) apply to the Letters of Credit."
(k) SECTION 3.2(C) OF THE EXISTING AGREEMENT. A new SECTION 3.2(c) is
hereby added to the Existing Agreement as follows:
"(c) If on any date the amount of L/C Obligations exceeds the L/C
Commitment, the Company shall Cash Collateralize on such date the outstanding
Letters of Credit in an amount equal to the excess of the maximum amount then
available to be drawn
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under the Letters of Credit over the L/C Commitment. Subject to SECTION 5.5, if
on any date after giving effect to any Cash Collateralization made on such date
pursuant to the preceding sentence, the amount of all Loans then outstanding
plus the amount of all L/C Obligations exceeds the combined Commitments, the
Company shall immediately, and without notice or demand, prepay the outstanding
principal amount of the Loans and L/C Advances by an amount equal to the
applicable excess."
(l) SECTION 3.3(b). SECTION 3.3(b) of the Existing Agreement is
hereby amended by adding the phrase ", under any L/C Related Document" after the
phrase "on any interest" appearing therein.
(m) SECTION 4.1(a) AND (c) OF THE EXISTING AGREEMENT. SECTION
4.1(a) and (c) of the Existing Agreement is hereby amended by adding the phrase
"and any L/C Obligations" after the word "Agreement", "Loan" or "Loans" each
time they appear therein.
(n) SECTION 4.3 OF THE EXISTING AGREEMENT. SECTION 4.3 of the
Existing Agreement is hereby amended by adding the phrase "and any other fees"
after the phrase "facility fees" appearing therein.
(o) SECTION 5.1(a) OF THE EXISTING AGREEMENT. SECTION 5.1(a) of
the Existing Agreement including CLAUSE (i) thereunder is hereby amended and
restated in its entirety as follows:
"(a) The Company shall pay directly to each Bank from time to time
such amounts as such Bank may determine to be necessary to compensate it
for any costs which such Bank determines are attributable to its making or
maintaining of any Eurodollar Loans or participation in any Letter of
Credit or its obligation to make any Eurodollar Loans hereunder or to
participate in any Letters of Credit, or reduction in any amount receivable
by such Bank hereunder in respect of any such Loans or such participation
in any Letters of Credit, or in the case of the Issuing Lender, any
increase in the cost to such Issuing Lender of agreeing to issue, issuing
or maintaining any Letter of Credit or agreeing to make or making, funding
or maintaining any unpaid drawing under any Letter of Credit (such
increases in costs and reductions in amounts receivable being herein called
"ADDITIONAL COSTS"), resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to such
Bank under this Agreement or its Note in respect of any of such Loans or
under any L/C Related Document in respect of any L/C Obligation (other than
taxes on the overall net income of such Bank or its Applicable Lending
Office imposed by the jurisdiction in which such Bank has its principal
office or such Applicable Lending Office); or".
(p) SECTION 5.1(a)(iii) OF THE EXISTING AGREEMENT. SECTION
5.1(a)(iii) of the Existing Agreement is amended by adding the phrase ", any L/C
Related Document" before the phrase "or Commitment" appearing therein.
-13-
(q) SECTION 5.1(c) OF THE EXISTING AGREEMENT. SECTION 5.1(c) of
the Existing Agreement is amended by adding the phrase "or any L/C Obligation"
after the word "Loan" or "Loans" each time they appear therein.
(r) SECTION 5.1(f) OF THE EXISTING AGREEMENT. SECTION 5.1(f) of
the Existing Agreement is hereby amended to add the phrase "and Cash
Collateralize such Bank's Pro Rata Share of the L/C Obligations" at the end of
CLAUSE (I) therein.
(s) SECTION 5.6 OF THE EXISTING AGREEMENT. SECTION 5.6 of the
Existing Agreement is hereby amended by (i) adding the phrase "or in
participating in any Letter of Credit" after the phrase "Commitment hereunder"
appearing therein and (ii) adding the phrase "or participation in such Letter of
Credit" after the word "Loan" appearing in the last line thereof.
(t) SECTION 5.7 OF THE EXISTING AGREEMENT. SECTION 5.7 of the
Existing Agreement is hereby amended by adding the phrase "or under any L/C
Obligation" after the word "Notes" or "Note" each time they appear therein.
(u) SECTION 6.3 OF THE EXISTING AGREEMENT. SECTION 6.3 of the
Existing Agreement is hereby amended and restated in its entirety as follows:
"6.3. INITIAL AND SUBSEQUENT LOANS AND LETTERS OF CREDIT. The
obligations of the Banks to make any Loan (including the initial Loan but
other than Loans which would not increase the aggregate Dollar amount of
Loans outstanding) and the obligation of the Issuing Lender to issue any
Letters of Credit are subject to the further conditions precedent that,
both immediately prior to such Loan or issuance of the Letter of Credit and
also after giving effect thereto: (a) no Default shall have occurred and be
continuing; (b) the representations and warranties in SECTION 7 hereof, in
any Pledge Agreement or in any L/C Related Document shall be true and
correct on and as of the date of the making of such Loans or issuance of
the Letter of Credit with the same force and effect as if made on and as of
such date except to the extent such representations and warranties state
that they relate solely to a specified date; and (c) the Agent and the
Issuing Lender shall have received an L/C Application or L/C Amendment
Application, as required by SECTION 2.12. Each notice of borrowing by the
Company hereunder or request for a Letter of Credit or amendment thereto
shall constitute a certification by the Company to the effect set forth in
the preceding sentence."
(v) SECTION 6.4 OF THE EXISTING AGREEMENT. SECTION 6.4 of the
Existing Agreement is hereby amended by adding the phrase "and the L/C
Obligations" after the word "Notes" each time it appears therein.
(w) SECTION 7.17 OF THE EXISTING AGREEMENT. A new SECTION 7.17 is
hereby added to the Existing Agreement as follows:
"Section 7.17. YEAR 2000 COMPLIANCE.
(a) The Company and each Subsidiary has:
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(i) conducted an analysis of all of its products, services,
business and operations, including without limitation surveys of its
Systems (as defined below) and surveys of and discussions with customers,
suppliers and vendors, to determine the extent to which the Company or such
Subsidiary may be adversely affected by its failure to be Year 2000
Compliant (as defined below);
(ii) developed a plan (the "YEAR 2000 PLAN") to become Year
2000 Compliant and remedy any material loss it may suffer if it fails to be
Year 2000 Compliant on a timely basis; and
(iii) implemented and continues to proceed with the Year 2000
Plan materially in accordance with its terms and timetables.
(b) Company and each Subsidiary reasonably believes that the Year
2000 Plan, if implemented in accordance with its terms, will result in it being
Year 2000 Complaint on a timely basis.
(c) Company and each Subsidiary reasonably believes that each of
its customers, suppliers and vendors whose failure to be Year 2000 Compliant
would have a material and adverse effect on the Company or such Subsidiary, is
Year 2000 Compliant or has developed a plan to become Year 2000 Compliant and
remedy any material loss such person may suffer if it fails to be Year 2000
Compliant on a timely basis with respect to all of its own computer systems and
applications.
The term "Year 2000 Compliant" means that all of such person(s) computer
systems and applications, including without limitation software and hardware
("SYSTEMS"), will function prior to, during, and after the calendar Year 2000,
and that no change in or to such calendar year will have a material adverse
effect on the performance of the Systems or on the functioning of the Company's
or such Subsidiary's business.
Company acknowledges and agrees that the foregoing representations and any
other representation, warranty, schedule, certificate, statement, report, notice
or other writing now or hereafter furnished by or on behalf of Company or any
Subsidiary to the Agent or any Bank in connection with being Year 2000 Compliant
or its Year 2000 Plan is material to the Agent and the Banks and that the Agent
and the Banks have relied and will continue to rely thereon. The Company agrees
and shall cause each Subsidiary to provide such information, financial,
technical, or otherwise, concerning the Company's or such Subsidiary's Year 2000
Plan as the Agent may reasonably request form time to time."
(x) SECTIONS 7.3, 7.4, 7.5, 7.6, 7.12 AND 8.6(H). SECTIONS 7.3,
7.4, 7.5, 7.6, 7.12 AND 8.6(H) of the Existing Agreement are hereby amended by
adding the phrase "the L/C Related Documents" after the phrase "OEA Pledge
Agreement" or "Pledge Agreements" each time they appear in such Sections.
(y) SECTION 8 OF THE EXISTING AGREEMENT. SECTION 8 of the
Existing Agreement is hereby amended by adding the phrase "or any Letter of
Credit is outstanding" after the phrase "Commitment is in effect" appearing
therein.
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(z) AMENDMENT TO SECTION 8.10. SECTION 8.10 of the Existing
Agreement is hereby amended and restated in its entirety as follows:
"8.10. TANGIBLE NET WORTH. The Company shall maintain, as at the
last day of each fiscal quarter, a Consolidated Tangible Net Worth of not less
than that specified below for the period indicated:
For Fiscal Quarter(s) Ending on Consolidated Tangible Net Worth
------------------------------- -------------------------------
Through January 31, 1999 $155,000,000
April 30, 1999 $160,000,000
July 31, 1999 $165,000,000
Thereafter $165,000,000 plus 50% of Net Income (if
positive), for each fiscal quarter ended
after July 31, 1999 through and
including the fiscal quarter ended on a
cumulative basis, plus the net proceeds
of the issuance of any capital stock of
the Company and its Subsidiaries."
(aa) AMENDMENT TO SECTION 8.11. SECTION 8.11 of the Existing
Agreement is hereby amended and restated in its entirety as follows:
"8.11 INDEBTEDNESS TO EBITDA. The Company will not permit the ratio
of the consolidated Indebtedness of the Company and its Subsidiaries for
the 12-month period ending on the last day of each fiscal quarter listed
below to the sum of EBITDA plus interest income for the 12-month period
ending on the last day of such fiscal quarter to be greater than the ratio
specified for such quarter below, all calculated in accordance with GAAP:
12-Month Period Ending On Ratio
------------------------- -----
May 1, 1998 3.0:1.0
July 31, 1998 3.0:1.0
October 31, 1998 3.5:1.0
January 31, 1999 4.0:1.0
April 30, 1999 3.25:1.0
July 31, 1999 3.0:1.0
October 31, 1999 2.75:1.0
January 31, 2000 2.75:1.0
Thereafter 2.5:1.0"
(bb) SECTION 8.12 OF THE EXISTING AGREEMENT. SECTION 8.12 of the
Existing Agreement is hereby amended and restated in its entirety as follows:
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"8.12. INDEBTEDNESS TO TOTAL CAPITALIZATION. The Company will not
permit, as at the last day of each fiscal quarter, the consolidated
Indebtedness of the Company and its Subsidiaries to exceed the percentage
of Total Capitalization specified below for the time period indicated, all
calculated in accordance with GAAP:
For Fiscal Quarter(s) Ending On Percentage of Total Capitalization
------------------------------- ----------------------------------
Through October 31, 1998 50%
January 31, 1999 52%
April 30, 1999 52%
July 31, 1999 50%
October 31, 1999 47.5%
January 31, 2000 47.5%
April 30, 2000 45.0%
July 31, 2000 45%
Thereafter 40%"
(cc) SECTION 9 OF THE EXISTING AGREEMENT. SECTION 9 of the
Existing Agreement is hereby amended by (i) adding the phrase "or any
reimbursement obligation in connection with any L/C Obligation" after the word
"Loan" in SECTION 9(a); (ii) adding the phrase "or any L/C Related Document"
after the phrase "Pledge Agreement" appearing in SECTION 9(c) and, (iii) adding
the phrase "or any L/C Related Document after the phrase "Pledge Agreement" each
time it appears in SECTION 9(k).
(dd) SECTION 9 OF THE EXISTING AGREEMENT. The clause beginning
with "THEREUPON" in SECTION 9 of the Existing Agreement is hereby amended and
restated in its entirety as follows:
"THEREUPON: (i) in the case of an Event of Default (other than one referred
to in SUBSECTION (g) or (h) of this SECTION 9 with respect to the Company), the
Agent, upon request of the Majority Banks, may, by notice to the Company, cancel
the Commitments, declare any obligation of the Issuing Lender to issue Letters
of Credit to be terminated, declare the principal amount then outstanding of,
and the accrued interest on, the Loans and all other amounts payable by the
Company hereunder and under the Notes (including, without limitation, any
amounts payable under SECTION 5.5 hereof) to be forthwith due and payable and/or
declare an amount equal to the maximum aggregate amount that is or at any time
thereafter may become available for drawing under any outstanding Letters of
Credit (whether or not any beneficiary shall have presented, or shall be
entitled at such time to present, the drafts or other documents required to draw
under such Letters of Credit) to be immediately due and payable, whereupon such
amounts shall be immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by the Company; and (ii) in the case of the occurrence of an Event of
Default referred to in SUBSECTION (g) or (h) of this SECTION 9 with respect to
the Company, the Commitments shall automatically be canceled, the obligations of
the Issuing Lender to issue Letters of Credit shall terminate automatically and
the principal amount then outstanding of, and the accrued interest on, the Loans
and all other amounts payable by the Company hereunder, under the Notes
(including, without limitation, any amounts payable under SECTION 5.5 hereof)
and as aforesaid with respect to Letters of Credit shall automatically become
-17-
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by the
Company."
(EE) SECTION 10 OF THE EXISTING AGREEMENT. SECTION 10 of the
Existing Agreement is hereby amended by adding the phrase "L/C Related
Documents" after the phrase "Pledge Agreements" each time it appears therein.
(ff) SECTION 10.1 OF THE EXISTING AGREEMENT. SECTION 10.1 of the
Existing Agreement is further amended by adding the following at the end
thereof:
"The Issuing Lender shall act on behalf of Banks with respect to any
Letters of Credit issued by it and the documents associated therewith
until such time and except for so long as the Agent may agree at the
request of the Majority Banks to act for such Issuing Lender with
respect thereto; provided, however, that the Issuing Lender shall have
all of the benefits and immunities (x) provided to the Agent in this
SECTION 10 with respect to any acts taken or omissions suffered by the
Issuing Lender in connection with Letters of Credit issued by it or
proposed to be issued by it and the application and agreements for
letters of credit pertaining to the Letters of Credit as fully as if
the term "Agent", as used in this SECTION 10, included the Issuing
Lender with respect to such acts or omissions, and (y) as additionally
provided in this Agreement with respect to the Issuing Lender."
(gg) SECTION 11.1 OF THE EXISTING AGREEMENT. SECTION 11.1 of the
Existing Agreement is hereby amended by adding the phrase "or L/C Related
Documents" after the phrase "Pledge Agreements" appearing therein.
(hh) SECTION 11.3 OF THE EXISTING AGREEMENT. SECTION 11.3 of the
Existing Agreement is hereby amended by (i) adding the phrase "Issuing Lender"
after the word "Agent" each time it appears therein and (ii) adding the phrase
"L/C Related Documents" after the phrase "Pledge Agreements" each time it
appears therein.
(ii) SECTION 11.4 OF THE EXISTING AGREEMENT. SECTION 11.4 of the
Existing Agreement is hereby amended in its entirety as follows:
"11.4. AMENDMENTS, ETC. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement or L/C Related Document may
be waived, amended or modified only by an instrument in writing signed by
the Company, the Agent and the Majority Banks; provided that no amendment
modification or waiver shall, unless by an instrument signed by the Agent,
the Company and all of the Banks (a) increase or extend the term, or extend
the time or waive any requirement for the reduction or termination, of any
of the Commitments (except as specifically provided in SECTION 2.11), (b)
extend the date fixed for the payment of principal of or interest on any
Loan or L/C Obligation (except as specifically provided in SECTION 2.11),
(c) reduce the amount of any payment of principal thereof or the rate at
which interest is payable thereon or any fee payable hereunder or under any
L/C Related Document, (d) alter the terms of this SECTION 11.4, (e) amend
the definition of the term "Majority Banks", (f) waive any condition
precedent set forth in SECTION 6 hereof, or (g) release the "Collateral"
referred to in the
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, the French Filing Documents or L/C Related Documents
from the Lien in favor of the Agent, on behalf of the Banks or release any
guaranty except for the release of any applicable Cash Collateral upon
irrevocable repayment in full or expiration (assuming no draws have been
made) of the related L/C Obligation; and provided further, that no
amendment, waiver or consent shall, unless in writing and signed by the
Issuing Lender in addition to the Majority Banks or all the Banks, as the
case may be, affect the rights or duties of the Issuing Lender under this
Agreement or any L/C Related Document relating to any Letter of Credit
issued or to be issued by it.
(jj) SECTION 11.6 OF THE EXISTING AGREEMENT. SECTION 11.6 of the
Existing Agreement is hereby amended by adding the phrase "L/C Obligation"
(i) after the word "Pledge Agreement" in CLAUSE (a) thereof; (ii) at the end of
the first sentence in CLAUSE (b) thereof and after the word "Agreement" in the
last sentence of said CLAUSE (b); (iii) after the word "Commitment" each time it
appears in CLAUSE (c); (iv) at the end of the first sentence of CLAUSE (e); and
(v) after the word "Commitment" each time it appears in CLAUSE (f) thereof.
(kk) SECTION 11.7 OF THE EXISTING AGREEMENT. SECTION 11.7 of the
Existing Agreement is hereby amended by adding the phrase "or L/C Obligation"
after the word "Loans" appearing therein.
(ll) SECTION 11.12 AND 11.13 OF THE EXISTING AGREEMENT. SECTIONS
11.12 and 11.13 of the Existing Agreement are hereby amended by adding the
phrase "or L/C Related Documents" after the word "Notes" each time it appears
therein.
SECTION 3. CONDITIONS TO EFFECTIVE DATE. The occurrence of the Effective
Date shall be subject to the satisfaction, on and as of the Effective Date, of
the following conditions precedent:
(a) AMENDMENT. The Company, the Agent, the Issuing Lender and all
of the Banks shall have executed and delivered this Amendment.
(b) NO DEFAULT. No Default shall have occurred and be continuing
under the Existing Agreement and the representations and warranties of the
Company in SECTION 7 of the Existing Agreement as amended hereby and in
SECTION 7 hereof shall be true and correct on and as of the Effective Date
(except to the extent such representations and warranties state that they relate
solely to a specified date) and the Company shall have provided to the Agent a
certificate of a senior officer of the Company to that effect.
(c) ARTICLES OF INCORPORATION. The Company shall have provided to
the Agent, in form and substance satisfactory to the Agent, a certificate of the
secretary or assistant secretary of the Company (i) confirming that the articles
of incorporation and by-laws of the Company have not been amended since April
10, 1998 or (ii) setting forth a true and correct copy of any amendment to the
articles of incorporation or by-laws of the Company adopted on or after
April 10, 1998.
(d) COMPANY RESOLUTIONS. A copy, duly certified by the secretary
or an assistant secretary of the Company, of (i) resolutions of the Company's
Board of Directors
-19-
authorizing or ratifying the execution and delivery of this Amendment,
authorizing the borrowings under the Existing Agreement, as amended hereby, and
authorizing the execution and delivery of L/C Related Documents (ii) all
documents evidencing other necessary corporate action, and (iii) all approvals
or consents, if any, with respect to this Amendment.
(e) COMPANY INCUMBENCY CERTIFICATE. A certificate of the
secretary or an assistant secretary of the Company certifying the names of the
Company's officers authorized to sign this Amendment, any L/C Related Documents
and all other documents or certificates to be delivered hereunder, together with
the true signatures of such officers.
(f) LEGAL OPINION. The Company shall have delivered to the Agent
an opinion of the Company's counsel, substantially in the form of EXHIBIT A
hereto.
(g) AMENDMENT FEE. The Company shall have paid to the Agent, for
the account of the Banks, a non-refundable fee of $180,000.
(h) OTHER. The Company shall have delivered such other documents
as the Agent may reasonably request.
SECTION 4. EFFECTIVE DATE NOTICE. Promptly following the occurrence of
the Effective Date, the Agent shall give notice to the parties hereto of the
occurrence of the Effective Date, which notice shall be conclusive, and all
parties may rely thereon; provided, that such notice shall not waive or
otherwise limit any right or remedy of the Agent or any Bank arising out of any
failure of any condition precedent set forth in SECTION 3 to be satisfied.
SECTION 5. TERMINATION. If the Effective Date shall not have occurred on
or before June 15, 1998, the Agent on instructions of the Majority Banks may
terminate this Amendment by notice in writing to the Company at any time before
the occurrence of the Effective Date; provided, that the obligations of the
Company under SECTION 12 shall survive such termination.
SECTION 6. RATIFICATION. The parties agree that the Existing Agreement
and the Notes have not lapsed or terminated, are in full force and effect, and
are and from and after the Effective Date shall remain binding in accordance
with their terms, as amended hereby.
SECTION 7. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Agent and the Banks that:
(a) NO BREACH. The execution, delivery and performance of this
Amendment, and the Existing Agreement as amended hereby, and the L/C Related
Documents will not conflict with or result in a breach of, or cause the creation
of a Lien or require any consent under, the articles of incorporation or by-laws
of the Company, or any applicable law or regulation, or any order, injunction or
decree of any court or governmental authority or agency, or any agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which any of them is bound.
(b) INCORPORATION, CORPORATE POWER AND ACTION, BINDING EFFECT.
The Company has been duly incorporated and is validly existing in good standing
under the laws of
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the State of Delaware and has all necessary corporate power and authority to
execute, deliver and perform its obligations under this Amendment, the Existing
Agreement as amended hereby and the L/C Related Documents; the execution,
delivery and performance by the Company of this Amendment, the Existing
Agreement, as amended hereby, and the L/C Related Documents have been duly
authorized by all necessary corporate action on its part; and this Amendment has
been duly and validly executed and delivered by the Company and constitutes a
legal, valid and binding obligation, enforceable in accordance with its terms.
(c) APPROVALS. No authorizations, approvals or consents of, and
no filings or registrations with, any governmental or regulatory authority or
agency are necessary for the execution, delivery or performance by the Company
of this Amendment, the Existing Agreement as amended hereby or the L/C Related
Documents or for the validity or enforceability thereof.
SECTION 8. CERTAIN USAGES. From and after the Effective Date, each
reference to the Existing Agreement in the Existing Agreement or in other
agreements, documents or instruments referred to or provided for in or delivered
under the Existing Agreement shall be deemed to refer to the Existing Agreement,
as amended hereby.
SECTION 9. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the Company, the Agent, the Banks and their
respective successors and assigns, except that the Company may not transfer or
assign any of its rights or interest hereunder.
SECTION 10. GOVERNING LAW. This Amendment shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
Illinois.
SECTION 11. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and any party hereto may execute any one or more of such
counterparts, all of which shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be as effective as delivery of a manually executed counterpart
of this Amendment.
SECTION 12. EXPENSES. Whether or not the Effective Date shall occur,
without limiting the obligations of the Company under the Existing Agreement,
the Company agrees to pay, or to reimburse on demand, all reasonable costs and
expenses incurred by (i) the Agent in connection with the negotiation,
preparation, execution, delivery, modification, amendment or enforcement of this
Amendment, any L/C Related Document and the other agreements, documents and
instruments referred to herein or therein, including the reasonable fees and
expenses of ▇▇▇▇▇▇▇, Carton & ▇▇▇▇▇▇▇, special counsel to the Agent, and any
other counsel engaged by the Agent, and (ii) any Bank in connection with
enforcement of this Amendment, the Existing Agreement as amended hereby, any L/C
Related Document and the agreements, documents and instruments referred to
herein or therein, including the reasonable fees and expenses of counsel to such
Bank.
SECTION 13. WAIVER. On and after the Effective Date, the restriction
limiting the amount of Loans outstanding to $150,000,000 contained in that
certain Waiver to Amended and Restated Revolving Credit Agreement dated as of
May 11, 1998 among the Company, the Banks, the Co-Agents and the Agent shall
have no force or effect
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the day and year first above
written.
OEA, INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President Finance
THE NORTHERN TRUST COMPANY,
as Agent
By: /s/ ▇▇▇▇▇ F.T. Monhart
-------------------------------------
Name: ▇▇▇▇▇ F.T. ▇▇▇▇▇▇▇
Title: Senior Vice President
THE NORTHERN TRUST COMPANY,
as Issuing Lender
By: /s/ ▇▇▇▇▇ F.T. Monhart
-------------------------------------
Name: ▇▇▇▇▇ F.T. ▇▇▇▇▇▇▇
Title: Senior Vice President
BANKS:
THE NORTHERN TRUST COMPANY, individually
By: /s/ ▇▇▇▇▇ F.T. Monhart
-------------------------------------
Name: ▇▇▇▇▇ F.T. ▇▇▇▇▇▇▇
Title: Senior Vice President
BANQUE NATIONALE DE PARIS, individually
and as Co-Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
& Manager
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
individually and as Co-Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
individually and as Co-Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Assistant Vice President
CREDIT AGRICOLE INDOSUEZ, individually
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇, F.V.P.
Title: Head of Corporate Banking
Chicago
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Branch Manager
LASALLE NATIONAL BANK, individually
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., individually
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Team Leader