EXECUTION VERSION
NINTH AMENDMENT
TO
CREDIT AGREEMENT
This NINTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
September 19, 1997, is entered into by and among:
(1) BEI Electronics, Inc., a Delaware corporation, BEI Sensors &
Systems Company, Inc., a Delaware corporation ("BEI Sensors"), Defense
Systems Company, Inc. a Delaware corporation, and BEI Medical Systems
Company, Inc., a Delaware corporation (each a "Prior Borrower" and,
collectively, the "Prior Borrowers");
(2) Each of the financial institutions listed on the signature pages
hereof (each a "Lender" and, collectively, the "Lenders");
(3) CIBC Inc., as agent for the Lenders (the "Agent"); and
(4) Canadian Imperial Bank of Commerce, as the existing Designated
Issuer (the "Existing Designated Issuer").
RECITALS
A. Reference is made to that certain Credit Agreement dated as of June 1,
1993, as amended by the First Amendment to Credit Agreement dated as of
September 3, 1993, as amended by the Second Amendment to Credit Agreement and
Limited Waiver dated as of April 1, 1994, as amended by the Third Amendment to
Credit Agreement dated as of September 30, 1994, as amended by the Fourth
Amendment to Credit Agreement dated as of June 1, 1995, as amended by the Fifth
Amendment to Credit Agreement dated as of June 1, 1996, as amended by the Sixth
Amendment to Credit Agreement dated as of October 31, 1996, as amended by the
Seventh Amendment to Credit Agreement dated as of February 28, 1997, and as
amended by the Eighth Amendment to Credit Agreement dated as of July 31, 1997
(as so amended, the "Credit Agreement") by and among the Prior Borrowers, the
Lenders, the Agent and the Existing Designated Issuer. Capitalized terms used
herein without definition shall have the same meanings herein set forth in the
Credit Agreement.
B. The Prior Borrowers now have requested the Lenders, the Agent and the
Existing Designated Issuer to amend the Credit Agreement in certain respects so
as to provide that as of the effectiveness of this Amendment, only BEI Sensors
shall be
permitted to request Borrowings under the Revolving Commitment and shall be
obligated thereunder. The Lenders, the Agent and the Existing Designated Issuer
are willing to agree to such amendments upon the terms and subject to the
conditions set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Prior Borrowers, the Agent, the Lenders and the Existing
Designated Issuer hereby agree as follows:
1. Definitions, Interpretation. All capitalized terms defined above and
elsewhere in this Amendment shall be used herein as so defined. Unless otherwise
defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in the Credit Agreement, as amended by
this Amendment.
2. Credit Agreement Amendments. Subject to the satisfaction of the
conditions set forth in paragraph 3 below, the Credit Agreement is hereby
amended as follows:
(a) The introductory paragraph of the Credit Agreement is hereby
amended to read in its entirety as follows:
This Credit Agreement dated as of June 1, 1993 (as amended) is
entered into among BEI Sensors & Systems Company, Inc., a Delaware
corporation (the "Borrower"), the financial institutions named on the
signature pages hereof (each a "Lender" and collectively the
"Lenders"), CIBC Inc., as Agent for the Lenders (the "Agent"), and
Canadian Imperial Bank of Commerce.
(b) The definition of "Borrower" and "Borrowers" set forth in Section
1.1 of the Credit Agreement is hereby amended to read in its entirety as
follows:
"Borrower": As defined in the introductory paragraph of this
Agreement.
(c) The definition of "Borrower Guarantor" set forth in Section 1.1 of
the Credit Agreement is hereby deleted.
(d) The definition of "Maturity Date" set forth in Section 1.1 of the
Credit Agreement is hereby amended to read in its entirety as follows:
"Maturity Date": October 31, 1997.
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(e) (i) Each reference in the Credit Agreement to "a Borrower", "the
Borrowers", "the Borrower or Borrowers", "any Borrower", "any of the
Borrowers", "each Borrower", "such Borrower", "such Borrower or Borrowers,
"each such Borrower", "each such Borrower or Borrowers" and "the applicable
Borrower or Borrowers" is hereby changed to "the Borrower; provided,
however, that each reference to "any Borrower" in the definition of
"Disclosure Letter", "Employee Benefit Plan" and "Multi-Employer Plan" is
hereby changed to "BEI and its consolidated Subsidiaries"; (ii) each
reference in the Credit Agreement to "the Borrowers'" is hereby changed to
"the Borrower's"; (iii) each reference in the Credit Agreement to "each of
their respective" is hereby changed to "its"; and (iv) each reference in
the Credit Agreement to "the Borrowers agree", "the Borrowers hereby
agree", "the Borrowers desire", "the Borrowers hereby grant", "the
Borrowers warrant and represent", "the Borrowers each acknowledge" and each
similar reference in which it is suggested that there are multiple
Borrowers is hereby changed so that each such reference refers to only a
single Borrower.
(f) Each reference in the Credit Agreement to "for whose account the
Letter of Credit was issued" is hereby deleted.
(g) Clause (b) of the definition of "Interest Period" set forth in
Section 1.1 of the Credit Agreement is hereby amended to read in its
entirety as follows:
(b) the Borrower may not select an Interest Period with respect
to any portion of principal of a Eurodollar Rate Loan which extends
beyond a date on which the Borrower is required to make a scheduled
payment of that portion of principal; and
(h) Article VIII of the Credit Agreement is hereby deleted and replaced
with the word "RESERVED".
3. Effective Date. The amendments effected by paragraph 2 above shall be
effective as of September 19, 1997 (the "Effective Date"), subject to receipt by
the Agent on or prior to the date of this Amendment of each of the following,
each in form and substance satisfactory to the Agent:
(a) This Amendment, duly executed by the Prior Borrowers, BEI Sensors,
the Lenders, the Agent and the Designated Issuer;
(b) New Notes, duly executed by BEI Sensors and made payable to each
Lender; and
(c) Evidence satisfactory to the Agent that all corporate and other
proceedings taken or to be taken in
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connection with the transactions contemplated hereby and all documents
incidental thereto not previously found acceptable by the Agent, acting on
behalf of the Lenders, and its counsel shall be satisfactory in form and
substance to the Agent and such counsel, and the Agent and such counsel
shall have received all such counterpart originals or certified copies of
such documents as the Agent may reasonably request.
4. Borrowers' Representations and Warranties. In order to induce the
Lenders, the Agent and the Designated Issuer to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, BEI Sensors represents
and warrants to the Lenders, the Agent and the Designated Issuer that the
following are true and correct on the date of this Amendment and that, after
giving effect to the amendments set forth in paragraph 2 above, the following
will be true and correct on the Effective Date:
(a) The representations and warranties of BEI Sensors set forth in the
Credit Agreement are true and correct in all material respects;
(b) No Event of Default or Potential Event of Default has occurred and
is continuing; and
(c) The Credit Agreement is in full force and effect.
5. Effect of this Amendment. On and after the Effective Date, each
reference in the Credit Agreement and any related documents to the Credit
Agreement shall mean the Credit Agreement as amended by this Amendment. Except
as specifically amended by this Amendment, the Credit Agreement shall remain in
full force and effect and is hereby ratified and affirmed. Except as otherwise
expressly provided in this Amendment, the execution, delivery and effectiveness
of this Amendment shall not operate as a waiver of any right, power, or remedy
of any Lender, the Agent or the Designated Issuer, nor constitute a waiver of
any provision of the Credit Agreement or any related documents.
6. Expenses. BEI Sensors shall pay on demand all reasonable fees and
expenses, including reasonable attorneys' fees and expenses, incurred by the
Agent in connection with the negotiation, preparation, execution and delivery of
this Amendment and all related documents, instruments and agreements.
7. Counterparts. This Amendment may be executed in any number of identical
counterparts, any set of which signed by all the parties hereto shall be deemed
to constitute a complete, executed original for all purposes.
8. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of California.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first written above.
PRIOR BORROWERS: BEI ELECTRONICS, INC.
By: Xxxxxx X. Xxxx
---------------------------------
Title: TREASURER
------------------------------
BEI SENSORS & SYSTEMS COMPANY, INC.
By: Xxxxxx X. Xxxx
---------------------------------
Title: TREASURER
------------------------------
DEFENSE SYSTEMS COMPANY, INC.
By: Xxxxxx X. Xxxx
---------------------------------
Title: TREASURER
------------------------------
BEI MEDICAL SYSTEMS COMPANY, INC.
By: Xxxxxx X. Xxxx
---------------------------------
Title: TREASURER
------------------------------
NEW BORROWER: BEI SENSORS & SYSTEMS COMPANY, INC.
By: Xxxxxx X. Xxxx
---------------------------------
Title: TREASURER
------------------------------
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LENDERS AND AGENT: CIBC INC., Individually and as Agent
By: Xxx X. Xxxxx
---------------------------------
Title: AUTHORIZED SIGNATORY
------------------------------
CANADIAN IMPERIAL BANK of COMMERCE,
as the Designated Issuer
By: Xxx X. Xxxxx
---------------------------------
Title: AUTHORIZED SIGNATORY
------------------------------
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