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CONFORMED COPY
EXHIBIT 10.4
AMENDMENT No. 3 (this "Amendment"), dated as of March 7,
1997, to the 364-Day Competitive Advance and Revolving Credit
Facility Agreement dated as of March 21, 1994, as amended by
Amendment No. 1 thereto dated as of March 15, 1995, and
Amendment Xx. 0 xxxxxxx xxxxx xx xx Xxxxx 00, 0000 (xx so
amended, the "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 (as successor to
Chemical 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 Agreement for the limited
purposes described and on the terms and conditions set forth herein.
B. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to such terms in the 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.
Section 1.01 of the Agreement is hereby amended as follows:
(i) The definition of "Amendment Effective Date" is hereby amended
and restated in its entirety to read as follows:
"'Amendment Effective Date' shall mean the date on which each
condition to effectiveness set forth in Section 5 of Amendment No. 3
to this Agreement dated as of March 7, 1997, has been satisfied."
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(ii) 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; .150% .050%
AA- or higher by S&P
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Category 2
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A1 or A2 by Xxxxx'x; .170% .055%
A+ or A by S&P
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Category 3
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A3 by Xxxxx'x; .190% .060%
A- by S&P
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Category 4
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Baa1 by Xxxxx'x; .220% .080%
BBB+ by S&.P
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Category 5
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Baa2 by Xxxxx'x; .250% .100%
BBB by S&P
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Category 6
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Baa3 by Xxxxx'x; .275% .125%
BBB- by S&P
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Category 7
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Ba1 or lower by Xxxxx'x; .375% .250%
BB+ or lower by S&P
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(iii) The definition of "Maturity Date" is hereby amended and
restated in its entirety:
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"'Maturity Date' shall mean March 6, 1998."
SECTION 2. AMENDMENT OF SECTION 3.04. Each reference in Section
3.04(a) of the Agreement to "January 1, 1995" is hereby replaced with a
reference to "December 31, 1995", and each reference in Section 3.04(b) of the
Agreement to "October 1, 1995" is hereby replaced with a reference to "September
29, 1996".
SECTION 3. AMENDMENT OF SCHEDULES. (a) Schedule 2.01 to the
Agreement is hereby deleted and replaced with Schedule 2.01 to this Amendment.
It is understood and agreed upon that immediately prior to the effectiveness of
this Amendment the Company shall have terminated all the Commitments then
outstanding and that upon the effectiveness of this Amendment, notwithstanding
the provisions of Section 2.10(b) of the Agreement, the outstanding Commitments
shall be as set forth on Schedule 2.01 to this Amendment.
(b) Schedule 3.08 and Schedule 3.12(b) to the Agreement are hereby
deleted and replaced, respectively, with Schedule 3.08 and Schedule 3.12(b) to
this Amendment.
SECTION 4. Representations and Warranties. The Company represents
and warrants as of the Amendment Effective Date to each of the Lenders and the
Administrative Agent that:
(a) This Amendment has been duly authorized, executed and
delivered by the Company, and this Amendment is, and the Agreement, as
amended hereby, will upon the Amendment Effective Date be, the legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws affecting
the enforcement of creditors' rights generally or by equitable principles
relating to enforceability (whether enforcement is sought by proceedings
in equity or at law).
(b) The representations and warranties set forth in Article III of
the Agreement, as amended hereby, are true and correct in all material
respects with the same effect as if made on the Amendment Effective Date,
except to the extent such representations and warranties expressly relate
to an earlier date.
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(c) Immediately before and immediately after the effectiveness of
this Amendment, no Event of Default or Default has occurred and is
continuing.
SECTION 5. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective as of and from the Amendment Effective Date when (a) the
Administrative Agent shall have received counterparts of this Amendment that,
when taken together, bear the signatures of all the parties hereto and (b) each
of the following conditions precedent shall have been satisfied in respect of
this Amendment:
(i) immediately prior to the effectiveness of this Amendment, the
Company shall have effectively terminated all the Commitments in
accordance with Section 2.10 of the Agreement (and, solely for purposes of
permitting each termination, the notice requirements of Section 2.10 are
hereby waived), and no Loan shall be outstanding;
(ii) the Administrative Agent shall have received the payment in
full of all the Borrowings and all other obligations of the Borrowers
outstanding under the Agreement, this Amendment or any related agreement,
including all Facility Fees accrued to but not including the Amendment
Effective Date, whether or not at the time due and payable;
(iii) the Administrative Agent shall have received a certificate,
dated the Amendment Effective Date and signed by a Financial Officer of
the Company, confirming (i) that the representations and warranties set
forth in Article III of the Agreement, as amended hereby, are true and
correct in all material respects, with the same effect as though made on
and as of the Amendment Effective Date, except to the extent that such
representations and warranties expressly relate to an earlier date, and
(ii) that no Event of Default or Default has occurred and is continuing;
(iv) the Administrative Agent shall have received certified copies
of the resolutions of the Board of Directors of the Company approving or
authorizing approval of the execution and delivery of this Amendment and
the performance of the Agreement as amended hereby;
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(v) the Administrative Agent shall have received a certificate of
the Clerk or an Assistant Clerk of the Company, dated the Amendment
Effective Date, (A) as to the absence of amendments to the certificate of
incorporation or the by-laws of the Company since July 31, 1995 (or, in
the event there shall have been any such amendments, setting forth copies
thereof certified by the Secretary of State of Massachusetts in the case
of amendments to the certificate of incorporation and by the Clerk or an
Assistant Clerk of the Company in the case of amendments to the by-laws),
and (B) certifying the incumbency and signatures of the officer or
officers of the Company signing this Amendment;
(vi) the Administrative Agent shall have received a favorable
written opinion of the General Counsel for the Company, dated the
Amendment Effective Date and addressed to the Lenders, to the effect set
forth in Exhibit D-1 of the Agreement, provided that, for purposes of the
foregoing, references in such Exhibit to execution and delivery of the
Agreement shall be deemed to refer to execution and delivery of this
Amendment and other references therein to the Agreement shall be deemed to
refer to the Agreement as amended hereby;
(vii) the Amendment Effective Date shall have occurred on or prior
to March 31, 1997.
(viii) Notwithstanding the foregoing, upon the execution and
delivery of this Amendment, and without regard to the satisfaction of the
foregoing conditions, the Maturity Date under the Agreement will be
extended to March 21, 1997.
SECTION 6. AGREEMENT. Except as specifically stated herein, the
provisions of the 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 Agreement as amended hereby.
SECTION 7. 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
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Lenders under the 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 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 Agreement in similar or different
circumstances. This Amendment shall apply and be effective only with respect to
the provisions of the Agreement specifically referred to herein.
SECTION 8. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. 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 10. 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.
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
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Treasurer
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THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent for the Lenders,
by
/s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
DRESDNER BANK A.G., NEW YORK BRANCH
AND GRAND CAYMAN BRANCH,
by
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
by
/s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Assistant Treasurer
THE FIRST NATIONAL BANK OF BOSTON,
by
/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
by
/s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Assistant Vice President
THE NORTHERN TRUST COMPANY,
by
/s/ Xxxxx F.T. Xxxxxxx
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Name: Xxxxx F.T. Xxxxxxx
Title: Vice President
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ROYAL BANK OF CANADA,
by
/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Senior Manager
SOCIETE GENERALE,
by
/s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Assistant Vice President
STANDARD CHARTERED BANK,
by
/s/ Xxxxx X. Cutting
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Name: Xxxxx X. Cuttin
Title: Senior Vice President
by
/s/ K.M. Xxxxx
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Name: K.M. Xxxxx
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.,
by
/s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
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Schedule 2.01
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LENDERS AND COMMITMENTS
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LENDER COMMITMENT
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The Chase Manhattan Bank $16,000,000
000 X. 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Dresdner Kleinwort Xxxxxx $10,500,000
North America LLC
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xx. Xxxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The First National Bank of Boston $10,500,000
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The First National Bank of Chicago $10,500,000
000 X. 00xx Xx.
Equitable Building, 8th Floor
Suite 4000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Northern Trust Company $10,500,000
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Mr. J. Xxxx XxXxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Royal Bank of Canada $10,500,000
New York Branch
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Societe Generale $10,500,000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Ms. Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Standard Chartered Bank $10,500,000
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Mr. Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Wachovia Bank of Georgia, N.A. $10,500,000
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
