EXHIBIT 10 (A)
AMENDMENT AND WAIVER NO. 3
AMENDMENT AND WAIVER NO. 3, dated as of August 31, 2006 (this
"Amendment"), by and among EDO Corporation (the "Borrower"), the Lenders party
hereto and Citicorp USA, Inc., as administrative agent (in such capacity, the
"Administrative Agent").
WITNESSETH:
WHEREAS, the Borrower, the Lenders party hereto and the Administrative
Agent are parties to that certain Credit Agreement, dated as of November 4, 2005
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the Lenders and Issuers party thereto and the
Administrative Agent; and
WHEREAS, the Borrower has requested that the Lenders and the
Administrative Agent enter into this Amendment to amend and waive the Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
2. Amendments. Effective as of the Effective Date (as defined below)
and subject to the terms and conditions set forth herein, the Credit Agreement
is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by inserting
the following definitions among the existing definitions set forth in such
section in the appropriate alphabetical order:
"'Amendment No. 3' shall mean the Amendment No. 3, dated as of August
31, 2006, by and among the Borrower, the Lenders party thereto and the
Administrative Agent, to this Agreement."
"'Amendment No. 3 Effective Date' shall mean the Effective Date (as
defined in Amendment No. 3)."
"'Impact Science Promissory Note' shall mean the promissory note, in
the form of Exhibit A to the Impact Science Stock Purchase Agreement, of
the Borrower to the individuals listed on Schedule I attached thereto, in
the principal amount of $17,298,765 and issued pursuant to the terms of the
Impact Science Stock Purchase Agreement."
"'Impact Science Stock Purchase Agreement' shall mean the Stock
Purchase Agreement, dated as of July 26, 2006, by and among the Borrower
and the shareholders of Impact Science & Technology, Inc. listed on
Schedule I attached thereto, as in effect on the Amendment No. 3 Effective
Date."
"'NexGen Promissory Note' shall mean the Non-Negotiable Promissory
Note, dated December 20, 2005, in the principal amount of $7,000,000 issued
by the Borrower to Xxxx X. Xxxxx and Xxxxxxx X. Xxxxx, as in effect on the
Amendment No. 3 Effective Date."
(b) The definition of "Applicable Margin" in Section 1.1 of the Credit
Agreement is hereby amended by amending and restating the pricing grid in clause
(b) thereof in its entirety to read as follows:
LEVERAGE RATIO BASE RATE LOANS EURODOLLAR RATE LOANS
-------------- --------------- ---------------------
Greater than or equal to 4.0 to 1.0 1.50% 2.50%
Less than 4.0 to 1.0 and equal to or greater than
3.5 to 1.0 1.25% 2.25%
Less than 3.5 to 1.0 and equal to or greater than
3.0 to 1.0 1.00% 2.00%
Less than 3.0 to 1.0 and equal to or greater than
2.0 to 1.0 0.75% 1.75%
Less than 2.0 to 1.0 and equal to or greater than
1.5 to 1.0 0.50% 1.50%
Less than 1.5 to 1.0 and equal to or greater than
1.0 to 1.0 0.25% 1.25%
Less than 1.0 to 1.0 0.00% 1.00%
(c) Section 2.1(b)(i) of the Credit Agreement is hereby amended by
deleting the reference to "$100,000,000" in clause (A) of the proviso therein
and replacing it with the following: "$300,000,000, which amount shall be
reduced on the earlier of (x) the first anniversary of the Amendment No. 3
Effective Date and (y) the date on which the Borrower incurs Permitted Debt
pursuant to Section 8.1(k) in an aggregate principal amount of at least
$100,000,000 any time after the Amendment No. 3 Effective Date, to the lesser of
(1) $300,000,000 and (2) the sum of (I) $100,000,000 and (II) the aggregate
amount of all Incremental Term Loans and Revolving Credit Commitment Increases
incurred on or prior to such date".
(d) Section 2.1(b)(ii) of the Credit Agreement is hereby amended by
(i) replacing the word "and" at the end of clause (D) thereof with ",", (ii)
renumbering the existing clause (E) thereof as clause (F) and (iii) adding as a
new clause (E) thereof the following: "(E) shall require (as determined by the
Administrative Agent) the application of all mandatory prepayments pursuant to
Section 2.9(a) or (b) to the prepayment of such Incremental Term Loans prior to
the payment of any Swing Loans or Revolving Loans or the cash collateralization
of any Letter of Credit Obligations and".
(e) Section 5.1 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
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"The Borrower shall maintain, on the last day of each Fiscal Quarter
set forth below, a Leverage Ratio of not more than the maximum ratio set
forth below opposite such Fiscal Quarter:
FISCAL QUARTER ENDING MAXIMUM LEVERAGE RATIO
--------------------- ----------------------
December 31, 2005 to June 30, 2006 3.50 to 1.00
September 30, 2006 to March 31, 2008 4.50 to 1.00
June 30, 2008 to March 31, 2009 4.25 to 1.00
June 30, 2009 and each Fiscal Quarter
thereafter 4.00 to 1.00
(f) Section 8.1 of the Credit Agreement is amended by (i) deleting the
word "and" at the end of clause (n) thereof, (ii) renumbering the existing
clause (o) thereof as clause (p) and (iii) adding as a new clause (o) thereof
the following:
"(o) (i) the Impact Science Promissory Note, (ii) the NexGen
Promissory Note and (iii) other unsecured Indebtedness owed to the seller
of any property acquired in a Permitted Acquisition; provided, however,
that, in the case of this subclause (iii), (A) at the time of incurring
such Indebtedness and after giving effect thereto, the Borrower shall be in
compliance with the financial covenants contained in Article V (Financial
Covenants), and (B) the other terms of such Indebtedness shall be
reasonably satisfactory to the Administrative Agent (it being understood
that terms substantially similar to the Impact Science Promissory Note are
deemed to be satisfactory); provided, further, that the aggregate
outstanding principal amount of all Indebtedness pursuant to subclauses
(i), (ii) and (iii) shall not exceed $50,000,000 at any time; and".
(g) Section 8.2 of the Credit Agreement is amended by (i) deleting the
word "and" at the end of clause (g) thereof, (ii) renumbering the existing
clause (h) thereof as clause (i) and (iii) adding as a new clause (h) thereof
the following:
"(h) Liens on cash deposited as cash collateral for the NexGen
Promissory Note pursuant to the terms thereof; and".
3. Waiver. The Lenders hereby waive any possible Default or Event of
Default arising from any failure by the Borrower to comply with Section 8.1 and
Section 8.2 of the Credit Agreement in connection with the issuance by the
Borrower of the NexGen Promissory Note prior to giving effect to this Amendment.
4. Conditions to Effectiveness of this Amendment. This Amendment shall
become effective as of the date the following conditions precedent have been
satisfied (the "Effective Date"):
(a) The Administrative Agent shall have received (i) this Amendment,
duly executed and delivered by the Borrower and Lenders constituting the
Requisite Lenders and (ii) the Consent and Affirmation, in the form attached
hereto as Annex A, duly executed and delivered by each of the Guarantors.
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(b) The Administrative Agent shall have received copies of (i) the
Impact Science Stock Purchase Agreement, together with all exhibits and
schedules thereto, and (ii) the NexGen Promissory Note, each certified by a
Responsible Officer as complete and correct.
(c) After giving effect to this Amendment, each of the representations
and warranties made by any Loan Party in or pursuant to the Loan Documents shall
be true and correct in all material respects on and as of the date hereof, as if
made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date.
(d) After giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing on the date hereof.
5. Representations and Warranties. The Borrower hereby represents and
warrants to the Administrative Agent and the Lenders, on and as of the date
hereof, that:
(a) (i) The Borrower has taken all necessary action to authorize the
execution, delivery and performance of this Amendment, (ii) this Amendment has
been duly executed and delivered by the Borrower and (iii) this Amendment is the
legal, valid and binding obligation of the Borrower, enforceable against it in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles.
(b) After giving effect to this Amendment, each of the representations
and warranties made by any Loan Party in or pursuant to the Loan Documents is
true and correct in all material respects on and as of the date hereof, as if
made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties are true and correct in all material respects as
of such earlier date.
(c) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing as of the date hereof.
6. Continuing Effect. Except as expressly set forth in this Amendment,
all of the terms and provisions of the Credit Agreement are and shall remain in
full force and effect and the Borrower shall continue to be bound by all of such
terms and provisions. This Amendment is limited to the specific provisions of
the Credit Agreement specified herein and shall not constitute an amendment or
waiver of, or an indication of the Administrative Agent's or the Lenders'
willingness to amend or waive, any other provisions of the Credit Agreement or
the same provisions for any other date or purpose.
7. Expenses. The Borrower agrees to pay and reimburse the
Administrative Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the negotiation, preparation, execution and delivery
of this Amendment, and all other documents prepared in connection herewith, and
the transactions contemplated hereby, including, without limitation, reasonable
fees and disbursements and other charges of counsel to the Administrative Agent.
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8. Choice of Law. This Amendment and the rights and obligations of the
parties hereto shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York.
9. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties and separate counterparts, each of which
when so executed and delivered, shall be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. Delivery of
an executed counterpart of a signature page to this Amendment by facsimile or
e-mail shall be effective as delivery of a manually executed counterpart of this
Amendment.
10. Integration. This Amendment, together with the other Loan
Documents, incorporates all negotiations of the parties hereto with respect to
the subject matter hereof and is the final expression and agreement of the
parties hereto with respect to the subject matter hereof.
11. Severability. In case any provision in this Amendment shall be
invalid, illegal or unenforceable, such provision shall be severable from the
remainder of this Amendment and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
12. Loan Document. This Amendment is a Loan Document.
13. Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT
AND ANY OTHER LOAN DOCUMENT.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of
the date first above written.
EDO CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice president-Finance
Treasurer and Chief Financial Officer
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
CITICORP USA, INC., as Administrative
Agent and Lender
By: /s/ Xxxx Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxx Xxxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx X. Xxx
------------------------------------
Name: Xxxxxxx X. Xxx
Title: Director
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: SVP/Senior Credit
Products Officer
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
JPMORGAN CHASE
By: /s/ Xxxxx X. Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
SOVEREIGN BANK
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
NATIONAL CITY BANK
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Administrative Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
PNC BANK, N.A.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
SOCIETE GENERALE
By: /s/ R.D. Xxxx Xxxxxx
------------------------------------
Name: R.D. Xxxx Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
REGIONS BANK
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
BANK LEUMI USA
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: First Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
COMERICA BANK
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
COMMERCE BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
UNITED OVERSEAS BANK LIMITED, NY AGENCY
By: /s/ Xxxxxx Xxx
------------------------------------
Name: Xxxxxx Xxx
Title: FVP & General Manager
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: AVP
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT AND WAIVER NO. 3]
ANNEX A
CONSENT AND AFFIRMATION
Each Guarantor hereby consents to the Amendment and Waiver No. 3 (the
"Amendment") to which this Consent and Affirmation is attached and agrees that
the terms thereof shall not affect in any way its obligations and liabilities
under the Loan Documents (as amended and otherwise expressly modified by the
Amendment) to which it is a party, all of which obligations and liabilities
shall remain in full force and effect and each of which is hereby reaffirmed.
Consented to and agreed as of
the date of the Amendment:
DARLINGTON INC.
EDO AEROTECH LIMITED (UK)
EDO ARTISAN INC.
EDO COMMUNICATIONS AND COUNTERMEASURES SYSTEMS INC.
EDO MBM TECHNOLOGY LIMITED
EDO MTECH INC.
EDO PROFESSIONAL SERVICES INC.
EDO RECONNAISSANCE AND SURVEILLANCE SYSTEMS, INC.
EDO RUGGED SYSTEMS LIMITED
EDO (UK) LIMITED
EDO WESTERN CORPORATION
EVI TECHNOLOGY LLC
FIBER INNOVATIONS, INC.
SPECIALTY PLASTICS, INC.
By:
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Name:
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Title:
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