EXHIBIT 10(B)
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇, dated as of February 16, 2007 (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
(as amended, supplemented or otherwise modified from time to time, 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 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 1.1 of the Credit Agreement is hereby amended by inserting
the following definitions among the existing definitions set forth in such
section in the appropriate alphabetical order:
"'Amendment No. 4' shall mean the Amendment No. 4, dated as of
February 16, 2007, by and among the Borrower, the Lenders party thereto and
the Administrative Agent, to this Agreement."
"'Amendment No. 4 Effective Date' shall mean the Effective Date (as
defined in Amendment No. 4)."
(b) The definition of "Applicable Margin" in Section 1.1 of the Credit
Agreement is hereby amended by amending and restating the pricing grid in clause
(b) thereof in its entirety to read as follows:
LEVERAGE RATIO BASE RATE LOANS EURODOLLAR RATE LOANS
-------------- --------------- ---------------------
Greater than or equal to 4.5 to 1.0 1.75% 2.75%
Less than 4.5 to 1.0 and equal to or greater than
4.0 to 1.0 1.50% 2.50%
LEVERAGE RATIO BASE RATE LOANS EURODOLLAR RATE LOANS
-------------- --------------- ---------------------
Less than 4.0 to 1.0 and equal to or greater than
3.5 to 1.0 1.25% 2.25%
Less than 3.5 to 1.0 and equal to or greater than
3.0 to 1.0 1.00% 2.00%
Less than 3.0 to 1.0 and equal to or greater than
2.0 to 1.0 0.75% 1.75%
Less than 2.0 to 1.0 and equal to or greater than
1.5 to 1.0 0.50% 1.50%
Less than 1.5 to 1.0 and equal to or greater than
1.0 to 1.0 0.25% 1.25%
Less than 1.0 to 1.0 0.00% 1.00%
(c) Section 2.1(b)(i) of the Credit Agreement is hereby amended by
deleting the reference to "the first anniversary of the Amendment No. 3
Effective Date" in clause (A) of the proviso therein and replacing it with "the
first anniversary of the Amendment No. 4 Effective Date".
(d) Section 5.1 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
"The Borrower shall maintain, on the last day of each Fiscal Quarter
set forth below, a Leverage Ratio of not more than the maximum ratio set
forth below opposite such Fiscal Quarter:
FISCAL QUARTER ENDING MAXIMUM LEVERAGE RATIO
--------------------- ----------------------
December 31, 2005 to June 30, 2006 3.50 to 1.00
September 30, 2006 4.50 to 1.00
December 31, 2006 to March 31, 2007 5.00 to 1.00
June 30, 2007 to March 31, 2008 4.50 to 1.00
June 30, 2008 to March 31, 2009 4.25 to 1.00
June 30, 2009 and each Fiscal Quarter
thereafter 4.00 to 1.00"
(e) Section 5.2 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
"The Borrower shall maintain a Fixed Charge Coverage Ratio, as
determined as of the last day of each Fiscal Quarter set forth below, for
the four Fiscal Quarters ending on such day, of at least the minimum ratio
set forth below opposite such Fiscal Quarter:
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FISCAL QUARTER ENDING MINIMUM FIXED CHARGE COVERAGE RATIO
--------------------- -----------------------------------
December 31, 2005 to September 30, 2006 2.00 to 1.00
December 31, 2006 1.75 to 1.00
March 31, 2007 and each Fiscal Quarter
thereafter 2.00 to 1.00"
3. 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, the Administrative Agent 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) The Administrative Agent shall have received (i) a Guarantee
Supplement, in substantially the form of Exhibit A to the Guaranty, duly
executed and delivered by CAS Inc., Impact Science & Technology, Inc. and NexGen
Communications LLC (collectively, the "Additional Subsidiaries") and (ii) a
Joinder Agreement, in substantially the form of Annex 2 to the Pledge and
Security Agreement (the "Joinder Agreement"), together with all schedules
thereto, duly executed and delivered by the Additional Subsidiaries.
(c) The Administrative Agent shall have received all certificates,
instruments and other documents representing all Pledged Stock and all Pledged
Debt Instruments being pledged pursuant to the Joinder Agreement, together with
(i) in the case of certificated Pledged Stock, undated stock powers endorsed in
blank and (ii) in the case of Pledged Debt Instruments, endorsements in blank.
(d) The Administrative Agent shall have received a legal opinion from
in-house counsel to the Borrower relating to the Additional Subsidiaries, which
opinion shall be in form and substance reasonably satisfactory to the
Administrative Agent.
(e) The Administrative Agent shall have received evidence that the
UCC-1 financing statement filed by Sovereign Bank with respect to Impact Science
& Technology, Inc. has been terminated.
(f) 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.
(g) After giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing on the date hereof.
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4. 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.
(c) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing as of the date hereof.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
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10. 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.
11. Loan Document. This Amendment is a Loan Document.
12. 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: ▇.▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: SR. VP, CFO and Treasurer
---------------------------------
[SIGNATURE PAGE TO AMENDMENT NO. 4]
CITICORP USA, INC., as Administrative
Agent and Lender
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Managing Director
---------------------------------
[SIGNATURE PAGE TO AMENDMENT NO. 4]
Bank Leumi USA
By: /s/ ▇▇▇▇ ▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: First Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 4]
Commerce Bank, NA
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 4]
CITIZENS BANK OF PENNSYLVANIA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 4]
Wachovia Bank, National Association
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Director
[SIGNATURE PAGE TO AMENDMENT NO. 4]
_______________________________
COMERICA BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 4]
_______________________________
SOCIETE GENERALE
By: /s/ R.D. ▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: R.D. ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 4]
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PNC BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 4]
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: SVP
[SIGNATURE PAGE TO AMENDMENT NO. 4]
The Bank of New York
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
Title: Vice President
[Signature Page To Amendment No.4]
KEYBANK NATIONAL ASSOCIATION,
As Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 4]
Sovereign Bank
--------------
BY: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 4]
Manufacturers and Traders Trust Company
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
[ SIGNATURE PAGE TO AMENDMENT NO.4]
REGIONS BANK
BY: /S/ BERKIN ISTANBULLUOGLU
--------------------------
Name: Berkin Istanbulluoglu
Title: AVP
[SIGNATURE PAGE YO AMENDMENT NO.4]
-------------------------------
National City Bank
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 4]
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, N.A.
__________________________
▇▇ ▇▇▇▇▇▇ Chase Bank, N.A.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
_________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
[Signature Page To Amendment No.4]
CONSENT AND AFFIRMATION
Each Guarantor hereby consents to the Amendment No. 4 (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.
CAS INC.
IMPACT SCIENCE & TECHNOLOGY, INC.
NEXGEN COMMUNICATIONS LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SR. VP, CFO and Treasurer
[SIGNATURE PAGE TO CONSENT]
ANNEX A
CONSENT AND AFFIRMATION
Each Guarantor hereby consents to the Amendment No. 4 (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.
CAS INC.
IMPACT SCIENCE & TECHNOLOGY, INC.
NEXGEN COMMUNICATIONS LLC
By: ▇.▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: SR. VP, CFO and Treasurer
------------------------------
