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AMENDMENT dated as of August 2, 1996, to
the Credit Agreement dated as of
September 23, 1990 (as amended and restated
as of September 29, 1995, and subsequently
amended) (the "Credit Agreement"), among ESCO
ELECTRONICS CORPORATION, a Missouri
corporation ("ESCO"), DEFENSE HOLDING CORP.,
a Delaware corporation (the "Borrower"), the
BANKS party thereto (the "Banks") and XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as Agent
(the "Agent").
A. Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in
the Credit Agreement, as amended hereby.
X. XXXX and the Borrower have requested that
certain provisions of the Credit Agreement be amended as set
forth herein. The Banks are willing to so amend the Credit
Agreement subject to the terms and conditions set forth
herein.
Accordingly, in consideration of the mutual
agreements herein contained and other good and valuable
consideration, the sufficiency and receipt of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Amendments. (a) Section 1.01 of the
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Credit Agreement is hereby amended to include the following
definition in its appropriate alphabetical order:
"Excluded Items" means (i) an after-tax, non-
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recurring charge attributable to cost growth in System &
Electronics, Inc.'s 60K Loader contract, not to exceed
$18,800,000, (ii) an after-tax, non-recurring, non-cash
charge attributable to the write-off of certain of the
Borrower's and its Subsidiaries' inventory, not to exceed
$14,300,000, (iii) an after-tax, non-recurring charge
attributable to the reduction of the anticipated claim
receivable of System and Electronics, Inc. against the
United States government under the M1000 program, not to
exceed $8,500,000, and (iv) the after-tax, non-recurring
gain attributable to the Xxxxxxxxx Transaction; provided
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that Excluded Items shall not include any charge taken after
September 30, 1996.
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(b) Section 5.21 of the Credit Agreement is
hereby amended to add the following proviso at the end of
such Section: "; provided that, for purposes of determining
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such ratio for any period that includes either or both of
the two fiscal quarters ended June 30 and September 30,
1996, Consolidated Adjusted EBIT shall be determined
excluding (to the extent otherwise included therein) the
Excluded Items".
SECTION 2. Representations and Warranties. Each
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of ESCO and the Borrower hereby represents and warrants to
each Bank, on and as of the date hereof, that:
(a) This Amendment has been duly authorized,
executed and delivered by each of ESCO and the Borrower, and
each of this Amendment and the Credit Agreement as amended
by this Amendment constitutes a legal, valid and binding
obligation of each of ESCO and the Borrower, enforceable in
accordance with its terms.
(b) The representations and warranties of each of
ESCO and Borrower contained in the Credit Agreement and in
each other Loan Document are true and correct in all
respects with the same effect as if made on and as of the
date hereof, except to the extent that such representations
and warranties expressly relate to an earlier date.
(c) After giving effect to this Amendment, no
Default has occurred and is continuing.
SECTION 3. Effectiveness. This Amendment shall
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become effective upon receipt by the Agent of counterparts
hereof signed by each of ESCO, the Borrower and the Required
Banks.
SECTION 4. Miscellaneous. (a) This Amendment
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constitutes the entire agreement and understanding of the
parties with respect to the subject matter hereof and
supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
(b) Section headings used herein are for
convenience of reference only and are not to affect the
construction of, or to be taken into consideration in
interpreting, this Amendment.
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(c) This Amendment shall be construed in
accordance with and governed by the law of the State of
New York.
(d) Each reference to a party hereto shall be
deemed to include its successors and assigns, all of whom
shall be bound by this Amendment and to whose benefit the
provisions of this Amendment shall inure.
(e) This Amendment may be executed in any number
of counterparts, each of which shall be an original but all
of which, when taken together, shall constitute but one
instrument.
(f) Except as specifically amended or modified
hereby, the Credit Agreement shall continue in full force
and effect in accordance with the provisions thereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed by their respective
authorized officers as of the date first above written.
ESCO ELECTRONICS CORPORATION
by
/s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice Pres. & Treas.
DEFENSE HOLDING CORP.
by
/s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Sr. Vice Pres. & CFO
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XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Agent
by
/s/ Xxxxx X. X'Xxxxx
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Name: Xxxxx X. X'Xxxxx
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
by
/s/ Xxxxx X. X'Xxxxx
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Name: Xxxxx X. X'Xxxxx
Title: Vice President
THE XXXXXXX'X NATIONAL BANK
OF ST. LOUIS
by
/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Jasma
Title: Vice President
THE BANK OF NEW YORK
by
/s/ R. Xxx Xxxxx
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Name: R. Xxx Xxxxx
Title: VP & Division Head
THE BANK OF NOVA SCOTIA
by
/s/ F.C.H. Xxxxx
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Name: F.C.H. Xxxxx
Title: Senior Manager Loan
Operations
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THE SUMITOMO BANK, LIMITED
by
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
/s/ Xxxxxxx X.X. Xxxxx
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Name: Xxxxxxx X.X. Xxxxx
Title: Vice President
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
by
/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
SANWA BUSINESS CREDIT
CORPORATION
by
/s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
