EXECUTION COPY
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇, dated as of April 24,2006 (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
(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. Amendment. Effective as of the Effective Date (as defined
below) and subject to the terms and conditions set forth herein, Section 8.5(c)
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:
"(c) dividends and distributions declared and paid by the Borrower on
the outstanding Borrower Common Stock for any Fiscal Quarter in an
amount not to exceed (i) 50% of the Consolidated Net Income (after
deducting any net loss) of the Borrower for the immediately preceding
four Fiscal Quarters (treated as one accounting period) minus (ii) the
amount of all other dividends and distributions declared and paid by
the Borrower in such preceding four Fiscal Quarters pursuant to this
clause (c);"
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 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.
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
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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.
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: /s/ ▇.▇. ▇▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇▇
Title: CFO/Sr. V.P.
[Signature Page to Amendment No. 2]
CITICORP USA, INC., as Administrative
Agent and Lender:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
[Signature Page to Amendment No. 2]
National City Bank
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[INSERT NAME OF LENDER]
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
[Signature Page to Amendment No. 2]
Sovereign Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 2]
Wachovia Bank, National Association
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Director
[SIGNATURE PAGE TO AMENDMENT NO. 2]
Bank of America, NA
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[INSERT NAME OF LENDER]
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: SVP/Credit Product Officer
[SIGNATURE PAGE TO AMENDMENT NO. 2]
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JPMorganChase Bank, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 2]
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WestLB AG, New York Branch
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
[SIGNATURE PAGE TO AMENDMENT No. 2]
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COMERICA BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
[Signature Page to Amendment No. 2]
The Governor & Company
of the Bank of Ireland
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[INSERT NAME OF LENDER]
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: SENIOR MANAGER
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Authorised Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 2]
Commerce Bank, N.A.,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
[Signature Page to Amendment No. 2]
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MANUFACTURERS AND TRADERS
TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
[Signature Page to Amendment No. 2]
PNC Bank, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[Signature Page to Amendment No. 2]
The Bank of New York
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
[Signature Page to Amendment No. 2]
Societe Generale
By: /s/ R.D. ▇▇▇▇ ▇▇▇▇▇▇
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Name: R.D. ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 2]
ANNEX A
CONSENT AND AFFIRMATION
Each Guarantor hereby consents to the Amendment No. 2 (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/ ▇. ▇. ▇▇▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: CFO/Sr V.P.
