BEI ELECTRONICS, INC.
EIGHTH AMENDMENT TO CREDIT AGREEMENT
This EIGHTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as of
July 31, 1997 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, 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 and as amended by the
Seventh Amendment to Credit Agreement dated as of February 28, 1997 (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 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. The following definitions
in Section 1.01 of the Credit Agreement are hereby amended to read
in their entirety as follows:
"'Maturity Date': September 27, 1997, or, if earlier, the day
immediately prior to the distribution date of a tax free spin-off of
any of the Borrowers' Subsidiaries."
"'Revolving Commitment': The amount of $15,000,000 as such amount
may be reduced pursuant to Sections 2.1(c) and 2.1(d). As of the
Maturity Date, the Lenders' obligation to make Revolving Loans after
such date shall expire and the amount of the Revolving Commitment
shall be reduced to an amount equal to the Letter of Credit Usage as
of such date."
2. Conditions to Effectiveness. This Amendment shall be deemed effective as of
July 31, 1997 (the "Eighth 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 US
$6,000.00.
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 June 30, 1997 (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 the Borrowers or any of their
respective Subsidiaries, (ii) the Certificate of Incorporation or
Bylaws of any of the Borrowers, (iii) any order, judgement 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 or will not require any authorization or
approval of, or other action by, or notice to or filing with any
government 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 Eighth 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 by 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 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 CONFLICT 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: \Xxxxxx X. Xxxx\
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Title: Treasurer
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BEI SENSORS & SYSTEMS COMPANY, INC.
By: \Xxxxxx X. Xxxx\
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Title: Treasurer
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DEFENCE SYSTEMS COMPANY, INC.
By: \Xxxxxx X. Xxxx\
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Title: Treasurer
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BEI MEDICAL SYSTEMS COMPANY, INC.
By: \Xxxxxx X. Xxxx\
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Title: Treasurer
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CIBC INC., Individually and as Agent
By: \Xxx Xxxxx\
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Title: Authorized Signatory
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CANADIAN IMPERIAL BANK OF COMMERCE, as the
Designated Issuer
By: \Xxx Xxxxx\
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Title: Authorized Signatory
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