AMENDMENT AND WAIVER XX. 0
XXXXXXXXX XXX XXXXXX XX. 0, dated as of March 6, 2006 (this
"Amendment"), by and among EDO Corporation (the "Borrower"), the Lenders party
hereto and Citicorp USA, Inc., as administrative agent (in such capacity, the
"Administrative Agent").
WITNESSETH:
WHEREAS, the Borrower, the Lenders party hereto and the Administrative
Agent are parties to that certain Credit Agreement, dated as of November 4, 2005
(the "Credit Agreement"), among the Borrower, the Lenders and Issuers party
thereto and the Administrative Agent; and
WHEREAS, the Borrower has requested that the Lenders and the
Administrative Agent enter into this Amendment to amend and waive the Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
2. Amendments. Effective as of the Effective Date (as defined
below) and subject to the terms and conditions set forth herein, the Credit
Agreement is hereby amended as follows:
(a) Section 6.1 (a) of the Credit Agreement is amended by (i)
adding immediately after the phrase "Within 45 days after the end of each Fiscal
Quarter of each Fiscal Year" the following: "(other than the last Fiscal Quarter
of each Fiscal Year)" and (ii) amending and restating the proviso at the end of
such Section in its entirety to read as follows: "provided, however, that
delivery of a Form 10-Q of the Borrower that is in compliance with all
applicable Requirements of Law or the requirements of this clause (a) shall
satisfy the delivery requirements of this clause (a)".
(b) Section 6.1(b) of the Credit Agreement is amended by amending
and restating the proviso at the end of such Section in its entirety to read as
follows: "provided, however, that delivery of a Form 10-K of the Borrower that
is in compliance with all applicable Requirements of Law or the requirements of
this clause (b) shall satisfy the delivery requirements of this clause (b)".
(c) Section 6.1(e) of the Credit Agreement is amended by amending
the reference to "60 days" therein to "90 days".
(d) Section 6.1(g) of the Credit Agreement is amended and restated
in its entirety to read as follows: "Together with each delivery of any
Financial Statement pursuant to clause (a) or (b) above, a "job status report"
substantially in the form previously provided to the
Lenders, certified by a Responsible Officer of the Borrower and current as of
the last Business Day of the preceding Fiscal Quarter."
3. Waiver. The Lenders hereby waive any Default or Event of
Default arising as a result of the Borrower's failure to furnish to the
Administrative Agent (a) Financial Statements for the Fiscal Quarter ended
December 31, 2005 within 45 days after the end of such Fiscal Quarter pursuant
to Section 6.1 (a) of the Credit Agreement prior to giving effect to this
Amendment, (b) the Borrower's annual business plan for the Fiscal Year 2006
within 60 days after the end of the preceding Fiscal Year pursuant to Section
6.1(e) of the Credit Agreement prior to giving effect to this Amendment and (c)
a job status report on or prior to the 20th day of the calendar quarter
commencing January 1,2006 pursuant to Section 6.1 (g) of the Credit Agreement
prior to giving effect to this Amendment.
4. Conditions to Effectiveness of this Amendment. This Amendment
shall become effective as of the date the following conditions precedent have
been satisfied (the "Effective Date"):
(a) The Administrative Agent shall have received (i) this
Amendment, duly executed and delivered by the Borrower and Lenders constituting
the Requisite Lenders and (ii) the Consent and Affirmation, in the form attached
hereto as Annex A, duly executed and delivered by each of the Guarantors.
(b) After giving effect to this Amendment, each of the
representations and warranties made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as of the
date hereof, as if made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date.
(c) After giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing on the date hereof.
5. Representations and Warranties. The Borrower hereby represents
and warrants to the Administrative Agent and the Lenders, on and as of the date
hereof, that:
(a) (i) The Borrower has taken all necessary action to authorize
the execution, delivery and performance of this Amendment, (ii) this Amendment
has been duly executed and delivered by the Borrower and (iii) this Amendment is
the legal, valid and binding obligation of the Borrower, enforceable against it
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles.
(b) After giving effect to this Amendment, each of the
representations and warranties made by any Loan Party in or pursuant to the Loan
Documents is true and correct in all material respects on and as of the date
hereof, as if made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties are true and correct in all material
respects as of such earlier date.
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(c) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing as of the date hereof.
6. Continuing Effect. Except as expressly set forth in this
Amendment, all of the terms and provisions of the Credit Agreement are and shall
remain in full force and effect and the Borrower shall continue to be bound by
all of such terms and provisions. This Amendment is limited to the specific
provisions of the Credit Agreement specified herein and shall not constitute an
amendment or waiver of, or an indication of the Administrative Agent's or the
Lenders' willingness to amend or waive, any other provisions of the Credit
Agreement or the same provisions for any other date or purpose.
7. Expenses. The Borrower agrees to pay and reimburse the
Administrative Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the negotiation, preparation, execution and delivery
of this Amendment, and all other documents prepared in connection herewith, and
the transactions contemplated hereby, including, without limitation, reasonable
fees and disbursements and other charges of counsel to the Administrative Agent.
8. Choice of Law. This Amendment and the rights and obligations
of the parties hereto shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
9. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties and separate counterparts, each of which
when so executed and delivered, shall be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. Delivery of
an executed counterpart of a signature page to this Amendment by facsimile or
e-mail shall be effective as delivery of a manually executed counterpart of this
Amendment.
10. Integration. This Amendment, together with the other Loan
Documents, incorporates all negotiations of the parties hereto with respect to
the subject matter hereof and is the final expression and agreement of the
parties hereto with respect to the subject matter hereof.
11. Severability. In case any provision in this Amendment shall be
invalid, illegal or unenforceable, such provision shall be severable from the
remainder of this Amendment and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
12. Loan Document. This Amendment is a Loan Document.
13. Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT
AND ANY OTHER LOAN DOCUMENT.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of
the date first above written.
EDO CORPORATION
By: /s/ X.X. Xxxxxxx
--------------------------------
Name: X.X. Xxxxxxx
Title: CFO
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
CITICORP USA, INC., as Administrative
Agent and Lender
By: /s/ Xxxx Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxx Xxxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
Wachovia Bank, N.A.
By: /s/ Xxxxxxx X. Xxx
-------------------------------
Name: Xxxxxxx X. Xxx
Title: Director
Bank of America, N.A.
-------------------------------------
[INSERT NAME OF LENDER]
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title SVP/CPO
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
JPMorgan
-------------------------------------
[INSERT NAME OF LENDER]
By: /s/ Andrsa Compten
-------------------------------
Name: Andrsa Compten
Title VP
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
Sovereign Bank
-------------------------------------
[INSERT NAME OF LENDER]
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title Senior Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
-------------------------------------
NATIONAL CITY BANK
By: /s/ Xxxxxx X. XxXxxxxxx
-------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title Senior Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
MANUFACTURERS AND TRADERS
TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
PNC Bank, N.A.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
[Signature Page to Amendment and Waiver No. 1]
--------------------------------------
SOCIETE GENERALE
By: /s/ R.D. Xxxx Xxxxxx
----------------------------------
Name: R.D. Xxxx Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
Key Bank National Association
--------------------------------------
[INSERT NAME OF LENDER]
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------
Name: XXXXXXXX XXXXXX
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
Regions Bank
--------------------------------------
[INSERT NAME OF LENDER]
By: /s/ Xxx Xxxxxxxx
----------------------------------
Name: Xxx Xxxxxxxx
Title: S.V.P.
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
The Governor & Company
of the Bank of Ireland
----------------------------------------
[INSERT NAME OF LENDER]
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Manager
/s/ Xxx XxxXxxxx
------------------------------------
Xxx XxxXxxxx
Authorized Signatory
[Signature Page to Amendment and Waiver No. 1]
---------------------------------
Bank Leumi USA
By: /s/ Xxxx Xxxx
------------------------------
Name: Xxxx Xxxx
Title: First Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
---------------------------------
COMERICA BANK
By: /s/ Xxxxx X. Xxxx
-----------------------------
Name: Xxxxx X. Xxxx
Title: Assistant Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
Commerce Bank, N.A.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
The Bank of New York
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
UNITED OVERSEAS BANK LIMITED,
New York Agency
By: /s/ Xxxxx Yew Xxxx
-------------------------------
Name: Xxxxx Yew Xxxx
Title: FVP & General Manager
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: VP & Deputy General Manager
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
EDO CORPORATION
Xxxxx Xxxx Bank Co., Ltd. New York
Agency
By: /s/ Chun-Kai Hu
----------------------------------
Name: Chun-Kai Hu
Title: VP & DGM
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 1]
ANNEX A
CONSENT AND AFFIRMATION
Each Guarantor hereby consents to the Amendment and Waiver No. 1 (the
"Amendment") to which this Consent and Affirmation is attached and agrees that
the terms thereof shall not affect in any way its obligations and liabilities
under the Loan Documents (as amended and otherwise expressly modified by the
Amendment) to which it is a party, all of which obligations and liabilities
shall remain in full force and effect and each of which is hereby reaffirmed.
Consented to and agreed as of
the date of the Amendment:
DARLINGTON INC.
EDO AEROTECH LIMITED (UK)
EDO ARTISAN INC.
EDO COMMUNICATIONS AND COUNTERMEASURES SYSTEMS INC.
EDO MBM TECHNOLOGY LIMITED
EDO MTECH INC.
EDO PROFESSIONAL SERVICES INC.
EDO RECONNAISSANCE AND SURVEILLANCE SYSTEMS, INC.
EDO RUGGED SYSTEMS LIMITED
EDO (UK) LIMITED
EDO WESTERN CORPORATION
EVI TECHNOLOGY LLC
FIBER INNOVATIONS, INC.
SPECIALTY PLASTICS, INC.
By: /s/ X. X. Xxxxxxx
--------------------------
Name: X. X. Xxxxxxx
Title: VP Finance
