SECOND AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated
as of December 10, 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 dated as of April 10,
1998, as amended by a First Amendment thereto dated as of June 11, 1998, (as
amended the "EXISTING AGREEMENT") 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;
WHEREAS, the Company has given the Agent notice of its desire to reduce the
amount of the Commitments to $150,000,000; and
WHEREAS, the parties wish to amend the Existing Agreement to (a) reduce the
amount of the Commitments, (b) modify certain covenants, and (c) increase
pricing;
NOW, THEREFORE, the parties agree as follows:
Section1. 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 as of October 31, 1998, which will be
deemed to occur upon 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.
Section2. 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 their entirety the definitions of
"APPLICABLE MARGIN" and "AUTHORIZED OFFICER" as follows and (ii) adding the
following new definitions in alphabetical order:
" "AEROTEST" shall mean Aerotest Operations, Inc., a California
corporation, together with its successors and assigns.
"AEROSPACE SECURITY AGREEMENT" shall mean the Security Agreement
between Aerospace and the Agent, as collateral agent, in substantially the
form of EXHIBIT K hereto, as the same may be amended from time to time.
"AEROTEST SECURITY AGREEMENT" shall mean the Security Agreement
between Aerotest and the Agent, as collateral agent, in substantially the
form of EXHIBIT K hereto, and the same may be amended from time to time.
"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
-------------------------------------------------------------------------------------------------------------
RATIO GREATER THAN LESS THAN 3.75:1.0 LESS THAN 3.0:1.0 LESS THAN 2.5:1.0 LESS THAN 2.0:1.0
OR EQUAL TO but GREATER but GREATER but GREATER
3.75:1.0 THAN OR THAN OR THAN OR
EQUAL TO EQUAL TO EQUAL TO
3.0:1.0 2.5:1.0 2.0:1.0
-------------------------------------------------------------------------------------------------------------
FACILITY 25.0 25.0 12.5 12.5 12.5
FEE
-------------------------------------------------------------------------------------------------------------
FED FUNDS 225 200 162.5 112.5 87.5
RATE
-------------------------------------------------------------------------------------------------------------
LIBOR RATE 225 200 162.5 112.5 87.5
-------------------------------------------------------------------------------------------------------------
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 I pricing shall apply until the fiscal
quarter ended on April 30, 1999.
"AUTHORIZED OFFICER" shall mean (a) (i) in the case of the Company,
its chief executive officer, its chief operating officer, its president,
automotive safety products, its
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chief financial officer, any Person designated as an "Authorized Officer"
of the Company in SCHEDULE 2 attached hereto or any other Person designated
as an "Authorized Officer" of the Company for the purpose of this
Agreement, the Security Documents to which it is a party and the documents
delivered by the Company in connection herewith or therewith in an
officer's certificate executed by the Company's secretary, assistant
secretary or chief financial officer and delivered to the Agent; (ii) in
the case of Aerospace, its President, Vice-President/Treasurer or
Secretary, any other Person designated as an "Authorized Officer" of
Aerospace in SCHEDULE 2 attached hereto or any other Person designated as
an "Authorized Officer" of Aerospace for purpose of the Security Documents
to which it is a party in an officer's certificate executed by Aerospace's
President, Vice-President/Treasurer or Secretary and delivered to the
Agent; and (iii) in the case of Aerotest, its President, Vice
President/Treasurer or Secretary, any other Person designated as an
"Authorized Officer" of Aerotest in SCHEDULE 2 attached hereto or any other
Person designated as an "Authorized Officer" of Aerotest for purposes of
the Security Documents to which it is a party in an officer's certificate
executed by Aerotest's President, Vice-President/Treasurer or Secretary and
delivered to the Agent; and (b) in the case of each Bank, any officer of
such Bank designated as its "Authorized Officer" in SCHEDULE 1 attached
hereto or any officer of such Bank designated as its "Authorized Officer"
for the purpose of this Agreement or any documents delivered in connection
herewith, in a certificate executed by one of its Authorized Officers. Any
action taken under this Agreement, the Security Documents to which it is a
party or other documents to which it is party in connection herewith or
therewith, on behalf of the Company, or the Security Documents to which it
is a party, on behalf of Aerospace or Aerotest, as applicable, by any
individual who on or after the date of this Agreement shall have been an
Authorized Officer thereof, and whom the Agent or any Bank in good faith
believes to be a Authorized Officer of the Company, Aerospace or Aerotest,
as applicable, at the time of such action shall be binding on the Company,
Aerospace, or Aerotest, as applicable, even though such individual shall
have ceased to be an Authorized Officer of the Company, Aerospace or
Aerotest, as applicable, and any action taken under this Agreement or the
Security Documents on behalf of any Bank by any individual who on or after
the date of this Agreement shall have been an Authorized Officer of such
Bank and whom the Company in good faith believes to be an Authorized
Officer of such Bank at the time of such action shall be binding on such
Bank even though such individual shall have ceased to be an Authorized
Officer of such Bank.
"COMPANY SECURITY AGREEMENT" shall mean the Security Agreement between
the Company and the Agent, as collateral agent, in substantially the form
of EXHIBIT L hereto, as the same may be amended from time to time.
"PYROINDUSTRIE LEASE TRANSACTIONS" shall have the meaning specified in
SECTION 2.5(b).
"SECURITY DOCUMENTS" means collectively, the Pledge Agreements, the
Company Security Agreement, Aerospace Security Agreement, Aerotest Security
Agreement and the French Filing Documents."
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(b) SECTION 2.5 OF THE EXISTING AGREEMENT SECTION 2.5 of the
Existing Agreement is hereby amended as of the date hereof by relettering clause
(b) as clause (c) and inserting a new clause (b) as follows:
"(b) The Company agrees to notify the Agent immediately upon
Pyroindustrie S.A. entering (i) any transaction involving the sale or
other transfer of any of its real property to any Person (other than
the Company or any Subsidiary) with the intent to lease such property
as lessee or (ii) any transaction involving the lease of any personal
property from any Person (other than the Company or any Subsidiary)
(collectively, the "PYROINDUSTRIE LEASE TRANSACTIONS"). Each such
notice shall describe such transactions, including the anticipated net
proceeds to Pyroindustrie, in the case of a sale/leaseback, or the
fair market value of the leased equipment, as applicable, under such
Pyroindustrie Lease Transactions, and the Agent shall promptly notify
the Banks of the content of such notice. Effective upon, in the case
of a sale/leaseback transaction, the date of receipt of the gross
proceeds less reasonable and customary expenses thereof by
Pyroindustrie, or the commencement date of the equipment lease, the
Commitments shall be automatically reduced in the amount of such net
proceeds, in the case of the sale/leaseback, or the fair market value
of the equipment under lease (as certified by the Authorized Officer
of the Company) in the case of an equipment lease, and the Company
agrees to prepay immediately the principal amount of the Loans
outstanding in excess of the reduced amount of the Commitments,
without any further notice or action by the Agent or the Banks."
(c) SECTION 2.11(c) OF THE EXISTING AGREEMENT. SECTION 2.11(c) of
the Existing Agreement is hereby amended by deleting the dollar amount
"$180,000,000" appearing therein and substituting the dollar amount
"$150,000,000" therefor.
(d) SECTIONS 7.3, 7.4, 7.5 AND 7.6 OF THE EXISTING AGREEMENT.
SECTIONS 7.3, 7.4, 7.5 and 7.6 of the Existing Agreement are hereby amended and
restated in their entirety as follows:
"7.3. LITIGATION. There are no legal or arbitral proceedings or any
proceedings by or before any governmental or regulatory authority or agency, now
pending or (to the knowledge of the Company) threatened against the Company or
any of its Subsidiaries which would have a material adverse effect on (i) the
financial condition, operations or business taken as a whole of the Company and
its Subsidiaries or (ii) the ability of the Company, Aerospace or Aerotest to
perform their respective obligations under this Agreement, the Notes, the
Security Documents or L/C Related Documents to which it is a party.
7.4. NO BREACH. The execution, delivery and performance by the
Company of this Agreement, the Notes, the L/C Related Documents and Security
Documents to which it is a party will not conflict with or result in a breach
of, or cause the creation of a Lien (other than as contemplated by the L/C
Related Documents or Security Documents to which it is a party) or require any
consent under, the certificate 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
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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, except for any
breach of, or failure to obtain any consent required under any such agreement or
instrument that would not have a material adverse effect on (i) the financial
condition, operations or business taken as a whole of the Company and its
Subsidiaries or (ii) the ability of the Company, Aerospace or Aerotest to
perform their respective obligations under this Agreement, the Notes, the
Security Documents or L/C Related Documents to which it is a party.
7.5. CORPORATE POWER AND ACTION; BINDING EFFECT. The Company has
all necessary corporate power and authority to execute, deliver and perform its
respective obligations under this Agreement, the Notes, the L/C Related
Documents and Security Documents to which it is a party; the execution, delivery
and performance by the Company of this Agreement, the Notes, the L/C Related
Documents and Security Documents to which it is a party have been duly
authorized by all necessary corporate action on its part; and this Agreement,
the L/C Related Documents and Security Documents to which it is a party have
been duly and validly executed and delivered by the Company, and constitute, and
each of the Notes when executed and delivered for value will constitute, legal,
valid and binding obligations, enforceable in accordance with its terms.
7.6. APPROVALS. Except for notice filings with the appropriate
governmental authorities, 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 Agreement, the Notes, the L/C Related Documents or Security Documents to
which it is a party or for the validity or enforceability thereof."
(e) SECTION 7.12(b)(ii), (c)(ii) AND (e)(ii) OF THE EXISTING
AGREEMENT. SECTIONS 7.12(b)(ii), (c)(ii) and (e)(ii) of the Existing Agreement
are hereby amended and restated as follows: "or (ii) the ability of the
Company, Aerospace or Aerotest to perform their respective obligations under
this Agreement, the Notes, the Security Documents or the L/C Related Documents
to which it is a party."
(f) SECTION 8.5 OF THE EXISTING AGREEMENT. SECTION 8.5 of the
Existing Agreement is hereby amended by adding the phrase "Except for the
Pyroindustrie Lease Transactions," at the beginning thereof.
(g) SECTION 8.6(h) OF THE EXISTING AGREEMENT. SECTION 8.6(h) of
the Existing Agreement is hereby amended by deleting the phrase "Pledge
Agreements and French Filing Documents" appearing therein and substituting the
phrase "Security Documents" therefor.
(h) 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:
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For Fiscal Quarter(s) Ending On Consolidated Tangible Net Worth
-------------------------------- --------------------------------
October 31, 1998 $155,000,000
January 31, 1999 $148,000,000
April 30, 1999 $150,000,000
July 31,1999 $150,000,000
October 31, 1999 and Thereafter $150,000,000 plus 50% of Net Income
(if positive), for each fiscal
quarter ended after October 31,
1999 determined on a cumulative
basis, plus the net proceeds of the
issuance of any capital stock of
the Company and its Subsidiaries
issued at any time."
(i) 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
------------------------- -----
October 31, 1998 5.5:1.0
January 31, 1999 7.0:1.0
April 30, 1999 5.0:1.0
July 31, 1999 3.5:1.0
October 31, 1999 3.0:1.0
January 31, 2000 3.0:1.0
Thereafter 2.75:1.0"
(j) SECTION 8.13 OF THE EXISTING AGREEMENT. SECTION 8.13 of the
Existing Agreement is hereby amended and restated in its entirety as follows:
"8.13. MINIMUM INTEREST COVERAGE. The Company will not permit the
ratio of EBITDA for the 12-month period ending on the last day of each
fiscal quarter listed below to Interest Expense for the 12-month period
ending on the last day of such fiscal quarter to be less than the ratio
specified below for the time period indicated, all calculated in accordance
with GAAP:
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12-Month Period Ending On Ratio
------------------------- -----
October 31, 1998 2.5:1.0
January 31, 1999 1.5:1.0
April 30, 1999 2.0:1.0
July 31, 1999 and Thereafter 3.0:1.0"
(k) SECTION 9(c) OF THE EXISTING AGREEMENT. SECTION 9(c) of the
Existing Agreement is hereby amended by deleting the phrase "Pledge Agreement
and L/C Related Documents" appearing therein and substituting the phrase
"Security Document or any L/C Related Document" therefor.
(l) SECTION 9(d) OF THE EXISTING AGREEMENT. SECTION 9(d) of the
Existing Agreement is hereby amended by adding the section reference "2.5(b)"
immediately after the word "SECTION" appearing therein.
(m) SECTION 9(k) OF THE EXISTING AGREEMENT. SECTION 9(k) of the
Existing Agreement is hereby amended and restated as follows:
"(k) a default shall occur under any Security Document or L/C
Related Document; any Security Document or L/C Related Document shall at
any time and for any reason (other than its express terms) be discontinued
or cease to be in full force and effect; the Lien purported to be created
by any Security Document shall at any time and for any reason cease to be a
duly perfected first priority Lien on the "Collateral," as defined therein,
or".
(n) SECTION 10 OF THE EXISTING AGREEMENT. SECTION 10 of the
Existing Agreement is hereby amended by (i) deleting the phrase "Pledge
Agreements" each time it appears therein and substituting the phrase "Security
Documents" therefor and (ii) deleting the word "Aerospace" each time it appears
therein and substituting the phrase "Aerospace or Aerotest" therefor.
(o) SECTION 11.1 OF THE EXISTING AGREEMENT. SECTION 11.1 of the
Existing Agreement is hereby amended by deleting the phrase "Pledge Agreements"
each time it appears therein and substituting the phrase "Security Documents"
therefor.
(p) SECTION 11.3 OF THE EXISTING AGREEMENT. SECTION 11.3 of the
Existing Agreement is hereby amended by deleting the phrase "Pledge Agreements"
each time it appears therein and substituting the phrase "Security Documents"
therefor.
(q) SECTION 11.6 OF THE EXISTING AGREEMENT. SECTION 11.6 of the
Existing Agreement is hereby amended by deleting the phrase "Pledge Agreement"
each time it appears therein and substituting the phrase "Security Documents to
which it is a party" therefor.
(r) SECTIONS 11.11, 11.12 AND 11.13 OF THE EXISTING AGREEMENT.
SECTIONS 11.11, 11.12 and 11.13 of the Existing Agreement are hereby amended by
deleting the
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phrase "OEA Pledge Agreement" each time it appears therein and substituting the
phrase "Security Documents to which it is a party" therefor.
(s) SCHEDULES 1 AND 2 OF THE EXISTING AGREEMENT. SCHEDULES 1
and 2 to the Existing Agreement are hereby amended to be in the form of
SCHEDULES 1 and 2 hereto.
(t) EXHIBITS L AND K. The Existing Agreement is hereby amended as
of the date hereof to add EXHIBITS L and K thereto in the form of EXHIBITS L and
K hereto.
SECTION3. 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 and the Majority Banks
shall have executed and delivered this Amendment.
(b) SECURITY DOCUMENTS. The Company, Aerospace and Aerotest shall
have executed and delivered to the Agent the Company Security Agreement,
Aerospace Security Agreement and Aerotest Security Agreement, as applicable.
(c) 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.
(d) CERTIFICATE OF INCORPORATION. The Company shall have
delivered 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 certificate of incorporation and by-laws of the Company
have not been amended since June 11, 1998 or (ii) setting forth a true and
correct copy of any amendment to the certificate of incorporation or by-laws of
the Company adopted on or after June 11, 1998.
(e) COMPANY RESOLUTIONS. The Company shall have delivered to the
Agent a copy, duly certified by the secretary or an assistant secretary of the
Company, of (i) resolutions of the Company's Board of Directors authorizing or
ratifying the execution and delivery of this Amendment, the Security Documents
to which it is a party and the Replacement Notes and authorizing the borrowings
under the Existing Agreement, as amended hereby, (ii) all documents evidencing
other necessary corporate action, and (iii) all approvals or consents, if any,
with respect to this Amendment, the Security Documents and Replacement Notes.
(f) COMPANY INCUMBENCY CERTIFICATE. The Company shall have
delivered to the Agent 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 Security Documents to which it is a party, the Replacement
Notes and all other documents or certificates to be delivered hereunder,
together with the true signatures of such officers.
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(g) AEROSPACE AND AEROTEST ARTICLES OF INCORPORATION. Each of
Aerospace and Aerotest shall have provided to the Agent a certificate of the
secretary or assistant secretary of each of Aerotest and Aerospace as to their
respective articles of incorporation and by-laws.
(h) AEROSPACE AND AEROTEST RESOLUTIONS. Each of Aerospace and
Aerotest shall have provided to the Agent a copy, duly certified by the
secretary or an assistant secretary of each of Aerospace and Aerotest, of
(i) resolutions of their respective Board of Directors authorizing or ratifying
the execution and delivery of the Security Documents to which it is a party,
(ii) all documents evidencing other necessary corporate action, and (iii) all
approvals or consents, if any, with respect to the Security Documents to which
it is a party.
(i) AEROSPACE AND AEROTEST INCUMBENCY CERTIFICATE. The Agent
shall have received a certificate of the secretary or an assistant secretary of
each of Aerospace and Aerotest certifying the names of their respective officers
authorized to sign the Security Documents to which it is a party and all other
documents or certificates to be delivered hereunder, together with the true
signatures of such officers.
(j) REPLACEMENT NOTES. The Company shall have delivered to each
Bank a promissory note of the Company (each a "REPLACEMENT NOTE" and
collectively, the "REPLACEMENT NOTES"), substantially in the form of EXHIBIT A
hereto, payable to the order of such Bank in the amount of such Bank's
Commitment Amount. Upon receipt of its Replacement Note, each Bank will:
(i) record the aggregate unpaid principal amount of its Note dated April 10,
1998 (with respect to such Bank, its "ORIGINAL NOTE") issued under the Existing
Agreement in its records, or, at its option, on the schedule attached to its
Replacement Note as the aggregate unpaid principal amount of the Replacement
Note; (ii) xxxx its Original Note as replaced by its Replacement Note; and
(iii) return the Original Note to the Company. Thereafter, all references in
the Existing Agreement and in any and all instruments or documents provided for
therein or delivered or to be delivered thereunder or in connection therewith to
the Note or Notes shall be deemed references to each Replacement Note or the
Replacement Notes. The replacement of an Original Note with a Replacement Note
shall not be construed to deem paid or forgiven the unpaid principal amount of,
or unpaid accrued interest on, such Original Note outstanding at the time of
replacement.
(k) LIEN SEARCHES. Satisfactory lien search results concluded
against the Company, Aerospace and Aerotest.
(l) UCC FINANCING STATEMENTS. Such duly executed financing
statements and other documents together with such other acts and things as the
Agent may have required to establish and maintain a valid lien and security
interest in the collateral described in the Security Documents.
(m) LEGAL OPINION. The Company shall have delivered to the Agent
an opinion of the Company's, Aerospace's and Aerotest's counsel, in the form and
substance satisfactory to the Agent.
(n) AMENDMENT FEE. The Company shall have paid to the Agent, for
the account of the Banks who have approved in writing the transactions
contemplated by this
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Amendment on or before December 2, 1998, a non-refundable fee equal to the
product of 10 basis points times the Commitment Amount of such approving Bank to
be in effect on the Effective Date.
(o) OTHER. The Company shall have delivered such other documents
as the Agent may reasonably request.
SECTION4. 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.
SECTION5. TERMINATION. If the Effective Date shall not have occurred on
or before December 30, 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.
SECTION6. RATIFICATION. The parties agree that the Existing Agreement,
the Pledge Agreements 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.
SECTION7. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Agent and the Banks that:
(a) NO BREACH. The execution, delivery and performance by the
Company of this Amendment, the Existing Agreement, as amended hereby, and the
Security Documents to which it is a party and Replacement Notes will not
conflict with or result in a breach of, or cause the creation of a Lien (other
than as contemplated by the Company Security Agreement) or require any consent
under, the certificate 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 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, the Security Documents to
which it is a party and the Replacement Notes; the execution, delivery and
performance by the Company of this Amendment, the Existing Agreement, as amended
hereby, the Security Documents to which it is a party and the Replacement Notes
have been duly authorized by all necessary corporate action on its part; and
this Amendment, the Security Documents which it is a party and the Replacement
Notes have been duly and validly executed
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and delivered by the Company and constitute legal, valid and binding
obligations, 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, the Security
Documents to which it is a party or the Replacement Notes or for the validity or
enforceability thereof.
SECTION8. 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.
SECTION9. SUCCESSORS AND ASSIGNS. This Amendment, the Security
Documents to which it is a party and the Replacement Notes 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.
SECTION10. GOVERNING LAW. This Amendment shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
Illinois.
SECTION11. 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.
SECTION12. 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 Security Document, the Replacement Notes and the other
agreements, documents and instruments referred to herein or therein, including
the reasonable fees and expenses of Xxxxxxx, Carton & Xxxxxxx, special counsel
to the Agent, and (ii) any Bank in connection with enforcement of this
Amendment, the Existing Agreement as amended hereby, any Security Document, its
Replacement Note and the agreements, documents and instruments referred to
herein or therein, including the reasonable fees and expenses of counsel to such
Bank.
-11-
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/ X. Xxxxxxxx XxXxxxxxx
-------------------------------------
Name: X. Xxxxxxxx XxXxxxxxx
Title: Vice President Finance
THE NORTHERN TRUST COMPANY,
as Agent
By: /s/ Xxxxx F.T. Monhart
-------------------------------------
Name: Xxxxx F.T. Xxxxxxx
Title: Senior Vice President
THE NORTHERN TRUST COMPANY,
as Issuing Lender
By: /s/ Xxxxx F.T. Monhart
-------------------------------------
Name: Xxxxx F.T. Xxxxxxx
Title: Senior Vice President
BANKS:
THE NORTHERN TRUST COMPANY, individually
By: /s/ Xxxxx F.T. Monhart
-------------------------------------
Name: Xxxxx F.T. Xxxxxxx
Title: Senior Vice President
BANQUE NATIONALE DE PARIS, individually
and as Co-Agent
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President &
Manager
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
individually and as Co-Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
individually and as Co-Agent
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
CREDIT AGRICOLE INDOSUEZ, individually
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx, F.V.P.
Title: Head of Corporate Banking
Chicago
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President &
Branch Manager
LASALLE NATIONAL BANK, individually
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., individually
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President &
Team Leader
