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Exhibit (b)(5)
FOURTH AMENDMENT (this "Amendment"), dated
as of November 20, 1998, to the 5-Year Competitive
Advance and Revolving Credit Facility Agreement dated
as of March 21, 1994 (as amended from time to time,
the "Credit Agreement"), among EG&G, INC., a
Massachusetts corporation (the "Company"), the
Borrowing Subsidiaries (as such term is defined
therein; together with the Company, the "Borrowers"),
the Lenders listed in Schedule 2.01 thereof (the
"Lenders") and THE CHASE MANHATTAN BANK, a New York
banking corporation, as administrative agent for the
Lenders (in such capacity, the "Administrative
Agent").
A. The Borrowers have requested and the Administrative Agent
and the Lenders are willing to amend certain provisions of the Credit Agreement
for the limited purposes described and on the terms and conditions set forth
herein.
B. Capitalized terms used and not defined herein are used with
the meanings assigned to such terms in the Credit Agreement.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree,
on the terms and subject to the conditions set forth herein, as follows:
SECTION 1. AMENDMENT OF SECTION 1.01 OF THE CREDIT AGREEMENT.
Section 1.01 of the Credit Agreement is hereby amended as follows:
In the definition of "Applicable Percentage", the Eurodollar
Spread and Facility Fee Percentage grid is hereby amended and restated
in its entirety:
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Category 1 Eurodollar Spread Facility Fee Percentage
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Aa3 or higher by Xxxxx'x; .230% .070%
AA- or higher by S&P
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Category 2
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A1 or A2 by Xxxxx'x; .300% .100%
A+ or A by S&P
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2
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Category 3
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A3 by Xxxxx'x; .375% .125%
A- by S&P
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Category 4
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Baa1 by Xxxxx'x; .450% .150%
BBB+ by S&P
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Category 5
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Baa2 by Xxxxx'x; .575% .175%
BBB by S&P
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Category 6
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Baa3 by Xxxxx'x; .650% .225%
BBB- by S&P
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Category 7
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Ba1 or lower by Xxxxx'x; .700% .300%
BB+ or lower by S&P
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SECTION 2. AMENDMENT OF SECTION 2.07 OF THE CREDIT AGREEMENT.
Section 2.07(a)(i) of the Credit Agreement is hereby amended and restated as
follows:
"(i) in the case of each Eurodollar Standby Loan, the LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Percentage from time to time in effect plus an additional .125% per annum on any
day on which (A) the sum of (1) the outstanding aggregate principal amount of
all Standby Loans made by all Lenders plus (2) the outstanding aggregate
principal amount of all Competitive Loans made by all Lenders exceeds (B) 33% of
the Total Commitment and"
SECTION 3. AMENDMENT OF SECTION 5.01 OF THE CREDIT AGREEMENT.
Section 5.01 of the Credit Agreement is hereby amended by adding the following
after the heading thereof:
"The Company will give the Administrative Agent prompt written
notice of any change in any Rating that results in a change in the Category on
which the Applicable Percentage is based."
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SECTION 4. AMENDMENT OF SECTION 5.07 OF THE CREDIT AGREEMENT.
Section 5.07(b)(ii) of the Credit Agreement is hereby amended by replacing the
reference to "0.35:1.00" with a reference to "0.55:1.00".
SECTION 5. AMENDMENT OF SECTION 5.08 OF THE CREDIT AGREEMENT.
Section 5.08(h) of the Credit Agreement is hereby amended and restated as
follows:
"(h) to the extent that the value of all Margin Stock owned by
the Company and its Consolidated Subsidiaries (determined in accordance with
Regulation U) exceeds 25% of the value of the total assets of the Company and
its Consolidated Subsidiaries subject to this Section 5.08 (as so determined),
Liens on such excess Margin Stock (it being understood that Margin Stock not in
excess of 25% of the value of such assets will be subject to the restrictions of
this Section 5.08)."
SECTION 6. AMENDMENT OF SECTION 5.09 OF THE CREDIT AGREEMENT.
Section 5.09 of the Credit Agreement is hereby amended by adding the following
at the end thereof:
"(c) Notwithstanding anything in the foregoing to the
contrary, to the extent that the value of all Margin Stock owned by the Company
and its Consolidated Subsidiaries (determined in accordance with Regulation U)
exceeds 25% of the value of the total assets of the Company and its Consolidated
Subsidiaries subject to this Section 5.09 (as so determined), the restrictions
contained in subsections (a)(ii) and (b)(ii) of this Section 5.09 shall not
apply to such excess Margin Stock (it being understood that Margin Stock not in
excess of 25% of the value of such assets will be subject to the restrictions of
this Section 5.09)."
SECTION 7. AMENDMENT OF ARTICLE V OF THE CREDIT AGREEMENT.
Article V of the Credit Agreement is hereby amended by adding the following at
the end thereof:
"SECTION 5.10. OWNERSHIP OF MARGIN STOCK. The Company will
not, and will not permit its Subsidiaries to, own Margin Stock to the extent the
value of such Margin Stock would exceed 28% of the value of the total assets of
the Company and its Consolidated Subsidiaries."
SECTION 8. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to each of the Lenders and the Administrative Agent, on
and as of the date hereof, that:
(a) This Amendment has been duly authorized, executed and
delivered by the Company, and each of this Amendment and the Credit
Agreement, as amended hereby, constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms.
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(b) The representations and warranties set forth in Article
III of the Credit Agreement are true and correct in all material
respects with the same effect as if made on and as of the date hereof,
except to the extent such representations and warranties expressly
relate to an earlier date.
(c) Immediately before and immediately after the effectiveness
of this Amendment, no Event of Default or Default has occurred and is
continuing.
(d) Any reprogramming required to permit the proper
functioning, in and following the year 2000, of (i) the Company's and
each Subsidiary's computer systems and (ii) equipment containing
embedded microchips (including systems and equipment supplied by others
or with which the Company's or any Subsidiary's systems interface) and
the testing of all such systems and equipment, as so reprogrammed, will
be completed by July 1, 1999 except to the extent that the failure to
complete such reprogramming and testing could not in the aggregate
result in a Material Adverse Effect. The cost to the Company and the
Subsidiaries of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the Company and the
Subsidiaries (including, without limitation, reprogramming errors and
the failure of others' systems or equipment) will not result in a
Default or a Material Adverse Effect. Except for such of the
reprogramming referred to in the preceding sentence as may be
necessary, the computer and management information systems of the
Company and each Subsidiary are and, with ordinary course upgrading,
replacement and maintenance, will continue for the term of this
Agreement to be, sufficient to permit the Company and each Subsidiary
to conduct its business without a Material Adverse Effect.
SECTION 9. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective when the Administrative Agent shall have received counterparts
of this Amendment that, when taken together, bear the signatures of the Required
Lenders.
SECTION 10. CREDIT AGREEMENT. Except as specifically stated
herein, the provisions of the Credit Agreement are and shall remain in full
force and effect. As used therein, the terms "Agreement", "herein", "hereunder",
"hereinafter", "hereto", "hereof" and words of similar import shall, unless the
context otherwise requires, refer to the Credit Agreement as amended hereby.
SECTION 11. EFFECT OF AMENDMENT. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of or otherwise affect the rights and remedies of the
Lenders under the Credit Agreement, and shall not alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements
contained in the Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and
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effect. Nothing herein shall be deemed to entitle the Borrowers to a consent to,
or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein.
SECTION 12. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 13. COUNTERPARTS. This Amendment may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract.
SECTION 14. EXPENSES. The Company agrees to reimburse the
Administrative Agent for all reasonable out-of-pocket expenses incurred by it in
connection with this Amendment, including, but not limited to, the reasonable
fees, charges and disbursements of Cravath, Swaine & Xxxxx, counsel for the
Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
EG&G, INC.,
by
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Name:
Title:
THE CHASE MANHATTAN BANK, individually and
as Administrative Agent for the Lenders,
by
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Name:
Title:
DRESDNER BANK A.G., NEW YORK BRANCH AND
GRAND CAYMAN BRANCH,
by
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Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
by
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Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
by
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Name:
Title:
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THE NORTHERN TRUST COMPANY,
by
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Name:
Title:
ROYAL BANK OF CANADA,
by
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Name:
Title:
SOCIETE GENERALE,
by
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Name:
Title:
STANDARD CHARTERED BANK,
by
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Name:
Title:
WACHOVIA BANK OF GEORGIA, N.A.,
by
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Name:
Title:
