BEI ELECTRONICS, INC.
SIXTH AMENDMENT TO CREDIT AGREEMENT
This SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as
of October 31, 1996 and entered into by and among BEI Electronics, Inc., a
Delaware corporation, BEI Sensors & Systems Company, Inc., a Delaware
corporation, Defense Systems Company, Inc., a Delaware corporation, and BEI
Medical Systems Company, Inc., a Delaware corporation (each a "Borrower" and
collectively the "Borrowers"), the financial institutions listed 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, as the Designated Issuer, and is made with reference 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, and as amended by the Fifth Amendment to Credit Agreement dated as of June
1, 1996 (as so amended, the "Credit Agreement") by and among the Borrowers, the
Lenders, the Agent and the Designated Issuer. Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the
Credit Agreement.
RECITALS
WHEREAS, the Borrowers have requested an extension of the Maturity Date
of the Credit Agreement, and the Lenders, the Agent and the Designated Issuer
have so agreed;
WHEREAS, the Borrowers, the Lenders, the Agent and the Designated
Issuer desire to amend the Credit Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
1. Amendments to the Credit Agreement.
1.1 Amendments to Section 1.01: Defined Terms.
1.1.1 The following definitions in Section 1.01 of
the Credit Agreement are hereby amended in to read in their entirety as follows:
"'Maturity Date': February 28, 1997, or, if earlier, the day
immediately prior to the distribution date of a tax free spin-off of
any of the Borrowers' Subsidiaries."
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2. Conditions to Effectiveness.
This Amendment shall be deemed effective as of October 31,
1996 (the "Sixth Amendment Effective Date") upon the satisfaction of all of the
following conditions precedent:
2.1 The Agent shall have received for each Lender and the
Designated Issuer counterparts hereof duly executed on behalf of the Borrowers,
the Agent and the Lenders (or notice of the approval of this Amendment by the
Lenders satisfactory to the Agent shall have been received by the Agent).
2.2 The Agent shall have received a closing fee in the amount
of $2,500.00.
2.3 All corporate and other proceedings taken or to be taken
in 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.
3. Borrowers' Representations and Warranties.
In order to induce the Lenders to enter into this Amendment
and to amend the Credit Agreement in the manner provided herein, the Borrowers
represent and warrant to each Lender that the following statements are true,
correct and complete:
3.1 Corporate Power and Authority. The Borrowers have all
requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform their respective
obligations under, the Credit Agreement as amended by this Amendment (the
"Amended Agreement"). The Certificate of Incorporation and Bylaws of each of the
Borrowers have not been amended since September 30, 1994, except for the bylaws
of BEI Electronics, Inc. which were amended as of April 1, 1996 (a copy of the
amended bylaws have been delivered to Agent).
3.2 Authorization of Agreements. The execution and delivery of
this Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of the Borrowers.
3.3 No Conflict. The execution and delivery by the Borrowers
of this Amendment and the performance by the Borrowers of the Amended Agreement
do not and will not contravene (i) any law or regulation binding on or affecting
any of
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the Borrowers or any of their respective Subsidiaries, (ii) the Certificate of
Incorporation or Bylaws of any of the Borrowers, (iii) any order, judgment or
decree of any court of other agency of government binding on any of the
Borrowers or any of their respective Subsidiaries or (iv) any contractual
restriction binding on or affecting any of the Borrowers or any of their
respective Subsidiaries.
3.4 Governmental Consents. The execution and delivery by the
Borrowers of this Amendment and the performance by the Borrowers of the Amended
Agreement do not and will not require any authorization or approval of, or other
action by, or notice to or filing with any governmental authority or regulatory
body.
3.5 Binding Obligation. This Amendment and the Amended
Agreement have been duly executed and delivered by the Borrowers and are the
binding obligations of the Borrowers, enforceable against the Borrowers in
accordance with their respective terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or
other similar laws of general application and equitable principles relating to
or affecting creditors' rights.
3.6 Absence of Default. No event has occurred and is
continuing or will result from the consummation of the transactions contemplated
by this Amendment that would constitute an Event of Default or a Potential Event
of Default.
4. Miscellaneous.
4.1 Reference to and Effect on the Credit Agreement and the
Other Loan Documents.
4.1.1 On and after the Sixth Amendment Effective
Date, each reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit Agreement,
and each reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.
4.1.2 Except as specifically amended by this
Amendment, the Credit Agreement and the other Loan Documents shall remain in
full force and effect and are hereby ratified and confirmed.
4.1.3 Without limiting the generality of the
provisions of Section 10.01 of the Credit Agreement, nothing in this Amendment
shall be deemed to (a) constitute a waiver of compliance by the Borrowers with
respect to any term, provision or condition of the Credit Agreement or any other
instrument or agreement referred to therein or (b) prejudice any right or remedy
that the Agent or any Lender
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may now have or may have in the future under or in connection with the Credit
Agreement or any other instrument or agreement referred to therein.
4.2 Fees and Expenses. The Borrowers acknowledge that all
costs, fees and expenses as described in Section 10.05 of the Credit Agreement
incurred by the Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of the
Borrowers.
4.3 Headings. Section and subsection headings in this
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
4.4 Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
4.5 Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BEI ELECTRONICS, INC.
By: /s/ Xxxxxx X. Xxxx
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Title: Treasurer
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BEI SENSORS & SYSTEMS
COMPANY, INC.
By: /s/ Xxxxxx X. Xxxx
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Title: Treasurer
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