SEVENTH AMENDMENT
This SEVENTH AMENDMENT, dated as of May 10, 1994 among ROHR, INC.
(formerly known as Rohr Industries, Inc.) (the "Borrower"), the financial
institutions listed on the signature pages hereof under the heading "Lenders"
(collectively the "Lenders"), BANKERS TRUST COMPANY, as "Assignor" under, and as
defined in, Section 3 hereof, and CITIBANK, N.A. ("Citibank"), as resigning
Agent for such Lenders pursuant to Section 2 below, and CITICORP USA, INC., a
Delaware corporation ("CUSA"), as successor Agent for the Lenders from time to
time pursuant to said Section 2.
PRELIMINARY STATEMENT. The Borrower has entered into a Credit
Agreement dated as of April 26, 1989, as amended by the First Amendment dated as
of July 21, 1989, the Second Amendment dated as of January 25, 1990, the Third
Amendment dated as of April 30, 1990, the Letter Amendment dated as of October
31, 1992, the Fifth Amendment dated as of July 9, 1993, and the Sixth Amendment
dated as of September 24, 1993 (said Credit Agreement, as so amended, being the
"Credit Agreement", the terms defined therein being used herein as therein
defined unless otherwise defined herein), with the Lenders party thereto and the
Agent. The Borrower and the Lenders have agreed to amend and modify the Credit
Agreement as hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendment to Credit Agreement. The Credit Agreement is,
-----------------------------
effective as of the date hereof and subject to the satisfaction of the
conditions set forth in Section 4 below, hereby amended as follows:
(a) Section 1.01 is hereby amended by adding the following definitions
in appropriate alphabetical order:
"'Affiliate' means, as to any Person, any other Person that,
---------
directly or indirectly, controls, is controlled by or is under common
control with such Person."
"'Agent's Account' means the account of the Agent maintained by
---------------
the Agent with Citibank at its office at 399 Park Avenue, New York, New
York 10043, Account No. 36852248, Attention: Rohr, Inc. Account."
"'Agent's Syndication Account' means the account of the Agent
---------------------------
maintained by the Agent with Citibank at its office at 399 Park
Avenue, New York,
2
New York 10043, Account No. 36852248, Attention: Rohr, Inc. Account."
"'Borrower's Account' means the account of the Borrower maintained
------------------
by the Borrower with Citibank at its offices at 399 Park Avenue, New
York, New York 10043, Account No. 38007777."
"'CUSA' means Citicorp USA, Inc., a Delaware corporation."
----
"'Debt Date' means the date of issuance and sale by the Borrower
---------
of the Senior Notes and the Subordinated Debt."
"'Environmental Action' means any administrative, regulatory or
--------------------
judicial action, suit, demand, demand letter, claim, notice of non-
compliance or violation, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law,
Environmental Permit or Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory
authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief."
"'Environmental Permit' means any permit, approval, identification
--------------------
number, license or other authorization required under any applicable
Environmental Law."
"'Gross Operating Income' means, for any period, sales less costs
---------------------- ----
and expenses attributable to sales (other than amortization and
depreciation), in each case as reflected on the consolidated statements
of operations and cash flows of the Borrower and the Subsidiaries for
such period."
"'Hazardous Materials' means petroleum and petroleum products, by
-------------------
products or breakdown products, radioactive materials, asbestos-
containing materials, radon gas and any other chemicals, materials or
substances designated, classified or regulated as being 'hazardous' or
'toxic', or words of similar import, under any federal, state, local or
foreign statute, law, ordinance, rule,
3
regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance."
"'Insufficiency' means, with respect to any Plan, the amount, if
-------------
any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA."
"'Material Adverse Effect' means a material adverse effect of (a)
-----------------------
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its
Subsidiaries taken as a whole, (b) the rights and remedies of the Agent
or any Lender under this Agreement or any Note or (c) the ability of
the Borrower to perform its obligations under this Agreement or any
Note."
"'Senior Notes' means promissory notes of the Borrower that are
------------
(i) publicly issued after April 1, 1994 and (ii) subject to such terms
and provisions as shall be (a) acceptable to the Majority Lenders and
the Agent and (b) substantially similar to those terms and provisions
described in the draft prospectus of April 19, 1994 filed by the
Borrower with the Securities and Exchange Commission in connection with
the offering of the Borrower's Senior Notes due 2003."
"'Seventh Amendment' means the Seventh Amendment, dated as of May
-----------------
10, 1994 among the Borrower, the Lenders, Bankers Trust Company (as an
'Assignor' thereunder) and the Agent (including Citibank as resigning
Agent and CUSA as successor Agent)."
(b) The definitions of "Commitment", "Eligible Assignee",
"Environmental Laws", "ERISA Event", "Lenders", "Permitted Liens",
"Repayment Date", "Subordinated Debt", and "Termination Date" in Section
1.01 are hereby amended to read, respectively, as follows:
"'Commitment' means, with respect to any Lender at any time, the
----------
amount set forth opposite such Lender's name on the signature pages of
the Seventh Amendment or, if such Lender has entered into one or more
Assignments and Acceptances after the date of the Seventh Amendment,
set forth for such Lender in the Register maintained by the Agent
pursuant to
4
Section 8.07(c) as such Lender's 'Commitment', as such amount may be
reduced at or prior to such time pursuant to Section 2.05."
"'Eligible Assignee' means (a) any Affiliate of any Lender, (b)
-----------------
any Federal Reserve Bank (other than with respect to any assignment of
a Commitment) or (c) any Person approved by the Agent and the Borrower,
such approval not to be unreasonably withheld; provided, that in the
--------
case of clauses (a) and (c) of this definition, such Affiliate or
Person is a financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary
course of its business; and provided, further, however, that an
-------- ------- -------
Affiliate of the Borrower shall not qualify as an Eligible Assignee
under clause (c) of this definition."
"'Environmental Law' means any federal, state, local or foreign
-----------------
statute, law, ordinance, rule, regulation, code, order, judgment or
decree or written judicial or agency interpretation, policy or guidance
having the force of law relating to the environment, health, safety or
Hazardous Materials."
"'ERISA Event' means (i) the occurrence of a reportable event,
-----------
within the meaning of Section 4043(b) of ERISA (other than an event
described in Section 4043(b)(3)), unless the 30-day notice requirement
with respect thereto was waived by the PBGC as of the date of the
Seventh Amendment, (ii) the provision by the administrator of any Plan
of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA), (iii) the cessation
of operations at a facility in the circumstances described in Section
4062(e) of ERISA, (iv) the withdrawal by the Borrower or an ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA,
(v) the failure by the Borrower or any ERISA Affiliate to make a
payment to a Plan required under Section 302(f)(1) of ERISA, which
Section imposes a lien for failure to make required payments, (vi) the
adoption of an amendment to a Plan requiring the provision of security
to such Plan, pursuant to
5
Section 307 of ERISA, or (vii) the institution by the PBGC of
proceedings to terminate a Plan, pursuant to Section 4042 of ERISA, or
the occurrence of any event or condition which would constitute grounds
under Section 4042(a)(i) and (ii) of ERISA for the termination of, or
the appointment of a trustee to administer, a Plan."
"'Lenders' means (i) the financial institutions listed on the
-------
signature pages of the Seventh Amendment under the heading 'Lenders'
and (ii) each Eligible Assignee that shall become a party hereto
pursuant to Section 8.07."
"'Permitted Liens' means such of the following as to which no
---------------
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced (except as permitted below):
[clauses (i) through (viii) remain unchanged]
. . .
"(ix) pledges or deposits of cash or Permitted Investments
to secure obligations in respect of letters of credit issued in
connection with any workers' compensation or self-insurance or
reinsurance program established by the Borrower or any of its
Subsidiaries;"
[clauses (x) and (xi) remain unchanged]
. . .
"(xii) the lien required by paragraph 5I(ii) of the Amended
and Restated Note Agreements relating to the Borrower's 9.33% and
9.35% senior notes, respectively, and satisfying the requirements
of Section 4(d) of the Seventh Amendment."
"'Repayment Date' means the date on which any Debt (other than (i)
--------------
Debt resulting from Advances, (ii) Debt owed to any Subsidiary of the
Borrower, and (iii) Debt described in clause (vi) of the definition of
"Debt" contained in Section 1.01) of the Borrower is prepaid, redeemed,
purchased, defeased or otherwise satisfied prior to the scheduled
repayment date or stated maturity thereof; provided, however, that the
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date on which any of the following occurs shall not be a Repayment
Date: (a) the satisfaction
6
of Debt through its surrender to the Borrower in payment for stock
issuable upon exercise of a warrant issued pursuant to the Warrant
Agreement dated as of July 31, 1993 between the Borrower and the
purchasers identified therein, and (b) prepayments, redemptions,
purchases, defeasances or other satisfactions of Debt (other than Debt
evidenced by the Borrower's 9.35% and 9.33% senior notes due 2000 and
2002, respectively, 9.25% subordinated notes due 2017, 7% convertible
subordinated notes due 2012, Senior Notes and Subordinated Debt)
aggregating not more than $500,000 in any Fiscal Year, and provided,
--------
further, that it is understood and agreed that the scheduled repayment
-------
date or stated maturity of the industrial development bonds (in an
aggregate principal amount up to $16,500,000) related to the Borrower's
San Marcos, Texas facility shall include the date on which such bonds
shall be prepaid, redeemed or purchased in connection with the
expiration of the letter of credit related thereto or upon tender by
the holders thereof in accordance with the terms of the indenture
governing such bonds."
"'Subordinated Debt' means Debt of the Borrower that is (i)
-----------------
publicly issued after April 1, 1994, (ii) convertible into shares of
common stock of the Borrower, and (iii) subject to such other terms and
provisions as shall be (A) acceptable to the Majority Lenders and the
Agent and (B) substantially similar to those terms and provisions
described in the draft prospectus of April 19, 1994 filed by the
Borrower with the Securities and Exchange Commission in connection with
the offering of the Borrower's Convertible Subordinated Notes due
2004."
"'Termination Date' means April 25, 1997 or the earlier date of
----------------
termination in whole of the Commitments pursuant to Section 2.05 or
6.01."
(c) Section 1.01 is hereby further amended by deleting the definitions
of "Consolidated Cash Flow", "Liquidity Fund", "Liquidity Fund Amount", "P
Commitment", "P Commitment Increase Date", "P Commitment Reduction Date", "S
Commitment" and "Subordinated Debt Date".
(d) Section 1.01 is hereby further amended by amending in their
entirety the last sentence of the definition of the term "Adjusted
Consolidated Tangible Net Worth" and the proviso to the definition of the
-------
term "Tangible Net Worth" to read as follows, respectively:
7
"Notwithstanding the foregoing, (A) net deferred income tax assets recorded
in accordance with Statement of Financial Accounting Standards No. 109,
Accounting for Income Taxes ('SFAS 109') shall be treated as a tangible
asset (and not deducted pursuant to clause (i) or (iv) of this definition)
and shall be calculated without regard to any valuation allowance with
respect to such net deferred tax asset recorded by the Borrower in
accordance with SFAS 109, and (B) any asset established pursuant to
Statement of Financial Accounting Standards No. 87, Employers' Accounting
for Pensions ('SFAS 87') which corresponds to an additional minimum pension
liability recorded pursuant to SFAS 87 and any prepaid pension asset which
arises from amounts funded by the Borrower in accordance with Internal
Revenue Service regulations in excess of amounts expensed in accordance with
SFAS 87 shall be treated as a tangible asset (and not deducted pursuant to
clause (i) or (iv) of this definition)."
"; provided, however, that in calculating Tangible Net Worth (A) a net
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deferred tax asset recorded by the Borrower in accordance with Statement of
Financial Accounting Standards No. 109, Accounting for Income Taxes ('SFAS
No. 109'), shall be treated as a tangible asset and shall be calculated
without regard to any valuation allowance with respect to such net deferred
tax asset recorded by the Borrower in accordance with SFAS No. 109 and (B)
any asset established pursuant to Statement of Financial Accounting
Standards No. 87, Employers' Accounting for Pensions ('SFAS No. 87'), which
corresponds to an additional minimum pension liability recorded by the
Borrower in accordance with SFAS No. 87 and any prepaid pension asset which
arises from amounts funded by the Borrower in accordance with Internal
Revenue Service regulations in excess of amounts expensed in accordance with
SFAS 87, shall be treated as a tangible asset."
(e) Section 2.01 is hereby amended in its entirety to read as follows:
"SECTION 2.01. The A Advances. Each Lender severally agrees, on
--------------
the terms and conditions hereinafter set forth, to make A Advances to
the Borrower from time to time on any Business Day during the period
from the date hereof until the Termination Date in an aggregate amount
not to exceed at any time outstanding (i) such Lender's Commitment on
such Business Day less (ii) the aggregate amount of such
----
8
Lender's Participation in the then outstanding aggregate amount of all
Letter of Credit Liability related to all Letters of Credit; provided
--------
that the aggregate amount of the Commitments of the Lenders shall be
deemed used from time to time to the extent of the aggregate amount of
the B Advances then outstanding and such deemed use of the aggregate
amount of the Commitments shall be applied to the Lenders ratably
according to their respective Commitments (such deemed use of the
aggregate amount of the Commitments being a 'B Reduction'). Each A
Borrowing shall be in an aggregate amount of $4,000,000 or an integral
multiple of $1,000,000 in excess thereof and shall, subject to the
provisions of Section 2.02(b), consist of A Advances of the same Type
made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment
in effect from time to time, the Borrower may borrow under this Section
2.01, repay pursuant to Section 2.06 or prepay pursuant to Section 2.09
and reborrow under this Section 2.01."
(f) Section 2.02(a) is hereby amended by amending:
(i) the first sentence thereof by replacing the time "11:00 A.M.
(New York City time)" with the time "12:00 Noon (New York City time)"
and the words "the third Business Day prior to the date of the proposed
A Borrowing" with the words "the first Business Day prior to the date
of the proposed A Borrowing if it is comprised of Base Rate Advances,
or the third Business Day prior to the date of the proposed A Borrowing
if it is comprised of A Advances of any other Type", and
(ii) the fourth and fifth sentences thereof to read as follows:
"Each Lender shall, before 1:00 P.M. (New York City time) on the
date of such A Borrowing, make available for the account of its
Applicable Lending Office to the Agent at the Agent's Syndication
Account, in same day funds, such Lender's ratable portion of such
A Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III,
the Agent will make such funds available to the Borrower by
crediting the Borrower's Account; provided, however, that the
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Agent shall first make a portion of such funds equal to any
drawing
9
under any Letter of Credit which has remained unreimbursed for at
least two Business Days available to Citibank, as issuing bank of
such Letter of Credit, for reimbursement of such drawing as
contemplated by Section 2.14(c)."
(g) Section 2.03(a)(v) is hereby amended by adding to the end thereof
the following sentence:
"The failure of any Lender to make the B Advance to be made by it, if
any, as part of any B Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make the B Advance to be made by
such other Lender, if any, on the date of such B Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make
the B Advance, if any, to be made by such other Lender on the date of
any B Borrowing."
(h) Section 2.05 is hereby amended in its entirety to read as follows:
"SECTION 2.05. Reduction of the Commitments.
----------------------------
(a) Automatic Reduction. The Commitment of each Lender
-------------------
(determined without giving effect to any B Reduction on such day) shall
automatically reduce on October 25, 1995, April 25, 1996 and October
25, 1996 (each such day being an 'Amortization Date'), to the amount
obtained by multiplying the percentage set opposite the applicable
Amortization Date below times the Commitment of such Lender on the date
of the Seventh Amendment (determined after giving effect to any
subsequent Assignment and Acceptance but without giving effect to any B
Reduction on such day):
Amortization Date Percentage
----------------- ----------
October 25, 1995 90.90909%
April 25, 1996 81.81818%
October 25, 1996 72.72727%
provided, however, that on the Termination Date the Commitment of each
-------- -------
Lender shall be zero.
(b) Optional Reduction. The Borrower shall have the right, upon
------------------
at least two Business Days'
10
notice to the Agent, to terminate in whole or reduce ratably in part
the unused portions of the respective Commitments of the Lenders;
provided that each partial reduction shall be in the aggregate amount
--------
of $4,000,000 or an integral multiple of $1,000,000 in excess thereof.
(c) Mandatory Reduction. On each Repayment Date, the Commitment
-------------------
of each Lender shall automatically reduce by such Lender's ratable
share of the Pro Rata Amount in respect of such Repayment Date."
(i) Section 2.10 is hereby amended by deleting subsections (b), (e),
(f) and (g) thereof, and by amending subsection (d) thereof, to read as
follows:
"(d) On the Debt Date, the Borrower shall prepay (ratably, if in
part) the outstanding aggregate principal amount of the Advances in an
amount equal to the lesser of (i) the aggregate principal amount of the
Advances then outstanding and (ii) the net cash proceeds (net of all
related taxes, costs and expenses) of the issuance of the Senior Notes
and the Subordinated Debt, together with (y) accrued interest to the
date of such prepayment on the principal amount prepaid and (z), in the
case of any prepayment of any Adjusted CD Rate Advance or Eurodollar
Rate Advance, any additional amount for which the Borrower shall be
obligated pursuant to Section 8.04(b). The Agent shall immediately
distribute such prepayment in accordance with Section 2.12."
(j) Section 2.12(a) is hereby amended by amending the first sentence
thereof to read as follows:
"The Borrower shall make each payment hereunder and under the Notes,
irrespective of and without condition or deduction for any
counterclaim, defense, recoupment or setoff, not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the Agent
at the Agent's Account in same day funds."
(k) Section 2.14(a) is hereby amended by (i) increasing the figure
"$8,500,000" contained therein as the Letter of Credit Subfacility to the
figure "$30,000,000" and (ii) replacing the parenthetical "(except itself)"
contained in the third sentence thereof
11
with the parenthetical "(except itself but including CUSA)".
(l) Section 2.14(b)(i) is hereby amended by amending the second
sentence thereof by adding to the end thereof a new clause (F) to read as
follows:
"and (F) purpose for such Letter of Credit, which purpose may only be
to support the Borrower's or any Subsidiary's industrial revenue or
similar bonds, or the Borrower's or any Subsidiary's obligations in
connection with any workers' compensation or self-insurance or
reinsurance program, or the Borrower's or any Subsidiary's trade
obligations incurred in the ordinary course of its business."
(m) Section 2.14(c) is hereby amended by:
(i) amending the first sentence thereof to add after the words
"which shall be a Base Rate Advance" the parenthetical "(or, if the
Borrower shall request an A Borrowing comprised of A Advances of any
other Type on any day after the second Business Day following such
drawing, on which day any amount of such drawing shall remain
unreimbursed, an Advance of the Type so requested by the Borrower)",
(ii) amending the third and fourth sentences thereof to read as
follows:
"Each such Lender shall, on the first Business Day following such
notification, make an A Advance, which shall be a Base Rate
Advance, in an amount equal to the amount of its Participation in
such drawing for application to reimburse Citibank (but without
any requirement for compliance with the provisions of Sections
2.01 and 2.02 or the conditions set forth in Article III) and
---- ---- ------- ---
shall make available for the account of its Applicable Lending
Office to the Agent for the account of Citibank, by deposit to the
Agent's Account in same day funds, the amount of such A Advance.
If and to the extent that any such Lender shall not have so made
the amount of such A Advance available to the Agent, such Lender
and the Borrower severally agree to pay to the Agent forthwith on
demand such amount together with interest thereon, for each day
from the date of demand by Citibank until the date such amount
12
is paid to the Agent, at (i) in the case of the Borrower, the Base
Rate (or, if the Borrower shall request an A Borrowing comprised
of A Advances of a Type other than Base Rate Advances on any day
after the second Business Day following the applicable drawing, on
which day any amount of such drawing shall remain unreimbursed,
the Eurodollar Rate or Adjusted CD Rate, as applicable to such A
Advances), and (ii) in the case of such Lender, the Federal Funds
Rate." and
(iii) amending the last sentence thereof to read as follows:
"For purposes of Sections 2.14(a) and 3.03, until any A Advance
made by Citibank under this subsection (c) is repaid from the A
Advances made by the other Lenders under this subsection (c), such
A Advance made by Citibank shall not be considered outstanding as
an A Advance but rather outstanding solely as Letter of Credit
Liability."
(n) Section 2.16 is hereby amended in its entirety to read as follows:
"SECTION 2.16. Use of Proceeds. The proceeds of the Advances
---------------
shall be available (and the Borrower agrees that it shall use such
proceeds) solely to provide working capital for the Borrower (it being
understood that such working capital shall not include funds for
repayment, prepayment, redemption, purchase, defeasance or other
satisfaction of Debt or for providing cash or other collateral to
secure any Debt)."
(o) Section 3.03 is hereby amended in its entirety to read as follows:
"SECTION 3.03. Conditions Precedent to Certain A Borrowings and
------------------------------------------------
each Letter of Credit. The obligation of the Lenders to make that
---------------------
portion of the A Advances on the occasion of any A Borrowing which
would be used to repay any B Advances or would otherwise cause the sum
of the aggregate outstanding amount of A Advances owing to the Lenders
plus the then outstanding aggregate amount of all Letter of Credit
----
Liability related to all Letters of Credit, to increase over the sum of
such aggregate outstanding amount of A Advances plus outstanding
----
13
aggregate amount of Letter of Credit Liability immediately prior to the
making of such A Advances on the occasion of such A Borrowing, and the
right of the Borrower to request, and the obligation of Citibank in
respect of, the Issuance of each Letter of Credit which Issuance would
cause the sum of the aggregate outstanding amount of all Letter of
Credit Liability related to all Letters of Credit plus the then
----
outstanding aggregate amount of all A Advances owing to the Lenders, to
increase over the sum of such aggregate outstanding amount of Letter of
Credit Liability plus outstanding aggregate amount of A Advances
----
immediately prior to the Issuance of such Letter of Credit, shall in
each such case be subject to the further conditions precedent that on
the date of such A Borrowing or Issuance the following statements shall
be true (and the acceptance by the Borrower of the proceeds of such A
Borrowing, and the Issuance of such Letter of Credit, shall constitute
a representation and warranty made by the Borrower that on the date of
such A Borrowing or Issuance such statements are true): (i) the
representations and warranties contained in subsections (e), (f) and
(j) of Section 4.01 are correct on and as of the date of such A
Borrowing or Issuance, before and after giving effect to such A
Borrowing or Issuance and to the application of the proceeds therefrom,
as though made on and as of such date, and (ii) no event has occurred
and is continuing, or would result from such A Borrowing or Issuance or
from the application of the proceeds therefrom, which would constitute
an Event of Default but for the requirement that notice be given or
time elapse or both."
(p) Article III is hereby amended by renumbering Sections 3.04 and 3.05
as Sections 3.05 and 3.06, respectively, and by adding to Article III a new
Section 3.04 to read as follows:
"SECTION 3.04. Conditions Precedent to certain Letters of Credit.
-------------------------------------------------
The right of the Borrower to request, and the obligation of Citibank in
respect of, the Issuance of each Letter of Credit that supports any
Debt described in clause (i) or (ii) of the definition of 'Debt'
contained in Section 1.01 (subject to the requirements of clause (F) of
Section 2.14(b)(i)) shall be subject to the further conditions
precedent that on the date of such Issuance this Agreement shall have
been amended, and the Agent shall have received such documents, as the
14
Agent shall reasonably request in order to secure and otherwise protect
the obligations of the Borrower to Citibank and the Lenders in respect
of such Letter of Credit in the same manner as such Debt is secured and
otherwise protected."
(q) Section 4.01(e) is hereby amended in its entirety to read as
follows:
"(e) The Consolidated balance sheet of the Borrower and the
Subsidiaries as at July 31, 1993 and the related Consolidated
statements of operations, shareholders' equity and cash flows of the
Borrower and the Subsidiaries for the Fiscal Year then ended,
accompanied by an opinion of Deloitte & Touche, independent public
accountants, and the Consolidated balance sheet of the Borrower and the
Subsidiaries as at January 30, 1994, and the related Consolidated
statements of operations, shareholders' equity and cash flows of the
Borrower and the Subsidiaries for the six months then ended, duly
certified by the chief financial officer of the Borrower, copies of
which have been furnished to each Lender, fairly present, subject, in
the case of said balance sheet as at January 30, 1994, and said
statements of operations, shareholders' equity and cash flows for the
six months then ended, to year-end audit adjustments, the Consolidated
financial condition of the Borrower and the Subsidiaries as at such
dates and the Consolidated results of the operations and cash flows of
the Borrower and the Subsidiaries for the periods ended on such dates,
all in accordance with generally accepted accounting principles applied
on a consistent basis; and since July 31, 1993, there has been no
material adverse change in the financial condition or operations of the
Borrower and the Subsidiaries taken as a whole. The Lenders agree that
charges in the third Fiscal Quarter of Fiscal Year 1994 to
shareholders' equity in connection with increases in the underfunded
status of the Borrower's pension plans, and to income in connection
with the expensing of unamortized pension benefit past service costs,
each as described in the Borrower's Quarterly Report on Form 10-Q for
the Fiscal Quarter ended January 30, 1994, will not constitute such a
material adverse change."
(r) Section 4.01 is hereby amended by amending subsection (k) to read
as follows:
15
"(k) Set forth in Schedule V is a complete and accurate list, as
of the date of the Seventh Amendment, of all the outstanding Debt of
the Borrower and its Subsidiaries (other than Debt owed by the Borrower
to any of its Subsidiaries or by any of its Subsidiaries to the
Borrower or any other of its Subsidiaries and Debt described in clause
(vi) of the definition of 'Debt' contained in Section 1.01) and the
instruments and agreements, and amendments, supplements and other
modifications thereto, evidencing such Debt."
and by adding to Section 4.01 a new subsection (l) to read as follows:
"(l) The obligations of the Borrower under this Agreement and the
Notes constitute, and are entitled to the benefits of, 'Senior
Indebtedness' and 'Designated Senior Indebtedness' as defined in, and
under, the indenture related to the Subordinated Debt."
(s) Section 5.01(c) is hereby amended in its entirety to read as
follows:
"(c) Maintenance of Consolidated Tangible Net Worth. Maintain
----------------------------------------------
for each day (or, for any day on which all of the long-term public
senior debt securities of the Borrower are rated at least BBB- by
Standard & Poor's Corporation and Baa3 by Moody's Investors Service,
Inc., for the last day of the Fiscal Quarter in which such day occurs)
a Consolidated Tangible Net Worth of not less than $125,000,000 to and
including July 31, 1994, and thereafter the sum of (i) $125,000,000
plus (ii) 50% of the sum of the positive Consolidated Net Income, if
----
any, during the period from August 1, 1994 to such day (or, for any day
on which all of the long-term public senior debt securities of the
Borrower have such ratings, to the last day of such Fiscal Quarter),
plus (iii) the aggregate amount of all capital contributions
----
(including, without limitation, all amounts attributable to the
conversion of Debt of the Borrower to equity of the Borrower) received
by the Borrower or any Subsidiary (other than such contributions
originally made by the Borrower or any of its Subsidiaries) in cash, in
other property, or by conversion of Debt of the Borrower at any time
after the date of the Seventh Amendment."
16
(t) Section 5.01(d) is hereby amended in its entirety to read as
follows:
"(d) Maintenance of Ratio of Net Income Available for Fixed
------------------------------------------------------
Charges to Fixed Charges. Maintain for each day (or, for any day on
------------------------
which all of the long-term public senior debt securities of the
Borrower are rated at least BBB- by Standard & Poor's Corporation and
Baa3 by Moody's Investors Service, Inc., for the last day of the Fiscal
Quarter in which such day occurs) a ratio of Consolidated Net Income
Available for Fixed Charges for the period of 365 consecutive days (or
366 consecutive days for any such period that includes February 29)
ending on such day (or, for any day on which all of the long-term
public senior debt securities of the Borrower have such ratings, ending
on the last day of the Fiscal Quarter in which such day occurs), to
Consolidated Fixed Charges for such period of not less than the ratio
set forth opposite the period set forth below in which such day occurs:
Period Ratio
------ -----
From the date of the 1.40 to 1
Seventh Amendment to
July 31, 1994
From August 1, 1994 to 1.55 to 1
July 31, 1995
From August 1, 1995 to 1.90 to 1
July 31, 1996
From August 1, 1996 to 2.00 to 1"
the Termination Date
(u) Section 5.01 is hereby amended by deleting the existing subsection
(e) thereof and by adding thereto a new subsection (e) to read as follows:
"(e) Compliance with Environmental Laws. Comply, cause each of
----------------------------------
its Subsidiaries to comply and use its best efforts to cause all other
Persons occupying its properties to comply, with all Environmental Laws
and Environmental Permits applicable to its operations and properties;
obtain and renew all Environmental Permits necessary for its operations
and properties; and conduct, and cause each of its Subsidiaries to
conduct, any
17
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all applicable Environmental Law; in each case unless
------
the failure to so act would not be reasonably likely to have a Material
Adverse Effect; provided, however, that neither the Borrower nor any of
-------- -------
its Subsidiaries shall be required to undertake any such investigation,
study, sampling and testing, cleanup, removal, remedial or other action
to the extent that its obligations to do so is being contested in good
faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances."
(v) Section 5.02(a) is hereby amended in its entirety to read as
follows:
"(a) Debt Ratio. Permit the Debt Ratio for any day (or, for any
----------
day on which all of the long-term public senior debt securities of the
Borrower are rated at least BBB- by Standard & Poor's Corporation and
Baa3 by Moody's Investors Service, Inc., for the last day of the Fiscal
Quarter in which such day occurs) to be greater than the ratio set
forth opposite the period set forth below in which such day occurs:
Period Ratio
------ -----
From the date of the 5.60 to 1
Seventh Amendment to
July 31, 1994
From August 1, 1994 to 5.00 to 1
July 31, 1995
From August 1, 1995 to 4.10 to 1
July 31, 1996
From August 1, 1996 to 3.20 to 1"
the Termination Date
(w) Section 5.02(d) is hereby amended by adding to the end thereof a
new clause (iii) to read as follows:
"and (iii) all or substantially all of the assets of Rohr Aero
Services, Inc. and Rohr Aero Services
18
Europe may be sold (whether in one transaction or in a series of
transactions and, in the case of the assets of Rohr Aero Services
Europe, whether indirectly through the sale of its stock or directly)
if such sales comply with the requirements of Section 5.02(j)."
(x) Section 5.02(e) is hereby amended by deleting in its entirety
paragraph (v) of the except clause thereof, and Section 5.02(h) is hereby
------
amended by deleting in its entirety clause (iii) thereof.
(y) Section 5.02(j) is hereby amended by:
(i) replacing the term "Consolidated Cash Flow" contained in
Section 5.02(j) with the term "Gross Operating Income"; and
(ii) amending Section 5.02(j)(iii) to read as follows:
"(iii) in the good faith opinion of the board of directors
of the Borrower (or a committee of such board to whom such matter
has been properly delegated), the sale, lease, transfer or other
disposition is for fair market value and is in the best interests
of the Borrower; and".
(z) Section 5.02 is hereby amended by adding to the end thereof a new
subsection (k) to read as follows:
"(k) Incurrence of Debt. Incur, or permit any Subsidiary to
------------------
incur, any Debt other than:
(i) Debt incurred from time to time hereunder;
(ii) Debt evidenced by the Senior Notes in an aggregate
principal amount not to exceed $100,000,000, and Subordinated Debt
in an aggregate principal amount not to exceed $57,500,000;
(iii) Debt in an aggregate principal amount not to exceed
$10,000,000 at any time outstanding; provided, however, that no
-------- -------
more than $5,000,000 of such amount may be Debt of Subsidiaries at
any time;
19
(iv) Debt of Subsidiaries under revolving credit facilities,
so long as the aggregate amount of all such Debt outstanding at
any time shall not exceed $5,000,000;
(v) Debt of any Subsidiary to the Borrower or any of its
other Subsidiaries or of the Borrower to any of its Subsidiaries,
provided that in each case such Debt was incurred in the ordinary
--------
course of business;
(vi) any refinancing, renewal, extension or refunding of
outstanding Debt not resulting in an increase in the principal
amount thereof, provided that such Debt is pari passu in right of
-------- ---- -----
payment to the Debt refinanced, renewed, extended or refunded;
(vii) Debt described in clause (vi) of the definition of
'Debt' contained in Section 1.01;
(viii) Debt in an aggregate principal amount not to exceed
$16,500,000 incurred in connection with the sale or resale of
industrial development bonds relating to the Borrower's San
Marcos, Texas facility, provided, however, that such Debt may be
-------- -------
incurred only if the Borrower previously prepaid, redeemed or
purchased $16,500,000 principal amount of such bonds in connection
with the expiration of the letter of credit related thereto; and
(ix) Debt incurred in connection with the resale of the
industrial development bonds referred to in clause (viii) above
that were prepaid or purchased by the Borrower upon tender by the
holders thereof in accordance with the terms of the indenture
governing such bonds;
provided, that in the case of clauses (ii) through (vii) above the Debt
--------
referred to in such clauses shall be unsecured."
(aa) Section 5.03 is hereby amended by deleting subsection (m) thereof.
(bb) Section 6.01 is hereby amended by amending subsection (g) to read
as follows:
20
"(g) There shall occur any 'Change of Control' as defined in the
indenture relating to the Senior Notes or the Subordinated Debt; or"
and by adding to Section 6.01 new subsections (h), (i), (j) and (k) to read
as follows:
"(h) any non-monetary judgment or order shall be rendered against
the Borrower or any of its Subsidiaries that is reasonably likely to
have a Material Adverse Effect, and there shall be any period of 45
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; or
"(i) any ERISA Event shall have occurred with respect to a Plan
of the Borrower or any of its ERISA Affiliates and the sum (determined
as of the date of occurrence of such ERISA Event) of the Insufficiency
of such Plan and the Insufficiency of any and all other Plans of the
the Borrower and its ERISA Affiliates with respect to which an ERISA
Event shall have occurred and then exist (or the liability of the
Borrower and its ERISA Affiliates related to such ERISA Event) exceeds
$5,000,000; or
"(j) the Borrower or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Borrower and its ERISA Affiliates as Withdrawal Liability
(determined as of the date of such notification, exceeds $5,000,000 or
requires payments exceeding $2,500,000 per annum; or
"(k) the Borrower or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of the Borrower or any
of its ERISA Affiliates that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV
of ERISA, and as a result of such reorganization or termination the
aggregate annual contributions of the Borrower and its ERISA Affiliates
to all Multiemployer Plans that are then in reorganization or being
terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the plan years of such Multiemployer
Plans immediately preceding the plan
21
year in which such reorganization or termination occurs by an amount
exceeding $5,000,000;".
(cc) Section 8.07 is hereby amended by:
(i) replacing the words "P Commitment and S Commitment" each place
such words appear therein with the term "Commitment";
(ii) amending the proviso to the first sentence of subsection (a)
-------
thereof by adding to the end thereof new clauses (vi) and (vii) thereof
to read as follows:
", (vi) any Lender assigning all of its obligations shall not be
released from its obligations under Section 7.05 to the extent
relating to the period during which it was a Lender and (vii) in
the case of any assignee organized under the laws of a
jurisdiction outside the United States, such assignee shall have
delivered to the Agent the forms prescribed by the Internal
Revenue Service of the United States certifying as to such
assignee's status for purposes of determining exemption from
United States withholding taxes with respect to all payments to be
made to such assignee under this Agreement or such other documents
as are necessary to indicate that all such payments are subject to
such rates at a rate reduced by an applicable tax treaty";
(iii) amending clause (y) of the second sentence of subsection (a)
thereof by adding after the words "an assigning Lender's rights and
obligations" in the parenthetical contained therein the parenthetical
"(other than its obligations under Section 7.05 to the extent relating
to the period during which it was a Lender)"; and
(iv) amending the first sentence of subsection (d) thereof by
adding after the words "representing that it is an Eligible Assignee"
the words ", and, if such assignee is organized under the laws of a
jurisdiction outside the United States, the forms referred to in clause
(vii) of the proviso to Section 8.07(a),".
-------
(dd) Article VIII is hereby amended by adding thereto new Sections 8.10,
8.11 and 8.12 to read as follows:
22
"SECTION 8.10. Indemnification. (a) The Borrower agrees to
---------------
indemnify and hold harmless the Agent and each Lender and each of their
Affiliates and their officers, directors, employees and agents (each,
an 'Indemnified Party') from and against any and all claims, damages,
-----------------
losses, liabilities and expenses (including, without limitation,
reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of, or in connection with the
preparation for a defense of, any investigation, litigation or
proceeding arising out of, related to or in connection with (i) any
credit extended or used under the Notes or this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or (ii) the actual or alleged presence of
Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the
Borrower or any of its Subsidiaries, in each case whether or not such
investigation, litigation or proceeding is brought by the Borrower or
its directors or shareholders (other than in the case of any litigation
for breach of this Agreement by any Indemnified Party which litigation
results in a final, non-appealable judgment against such Indemnified
Party) or its creditors or an Indemnified Party or any other Person or
any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated; provided,
--------
however, that no Indemnified Party shall be entitled to be indemnified
-------
or held harmless hereunder to the extent such claim, damage, loss,
liability or expense resulted from (x) a dispute solely between or
among the Agent, one or more Lenders, any other Indemnified Party
and/or one or more holders of participations herein, or (y) such
Indemnified Party's gross negligence or willful misconduct.
(b) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the obligations of the Borrower contained in
subsection (a) of this Section 8.10 shall survive the payment in full
of principal, interest and all other amounts payable hereunder and
under the Notes.
"SECTION 8.11. Jurisdiction, Etc. (a) The Borrower hereby
------------------
irrevocably and unconditionally submits to the nonexclusive
jurisdiction of any
23
New York State court or federal court of the United States of America
sitting in New York City, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Agreement
or the Notes, or for recognition or enforcement of any judgment, and
the Borrower hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted
by law, in such federal court. The Borrower hereby also consents to
the service of copies of the summons and complaint and any other
process which may be served in any such action or proceeding by the
mailing of copies of such summons, complaint and other process to the
Borrower at its address specified in Section 8.02. The Borrower agrees
that a final, non-appealable judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit
on the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that the Borrower, any Lender or
the Agent may otherwise have to bring any action or proceeding relating
to this Agreement or the Notes in the courts of any other jurisdiction.
(b) The Borrower irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any action or
proceeding arising out of or relating to this Agreement or the Notes in
any New York State or federal court. The Borrower hereby irrevocably
waives, to the fullest extent permitted by law, the defense of any
inconvenient forum to the maintenance of such action or proceeding in
any such court.
"SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the
--------------------
Agent and the Lenders hereby irrevocably waives all right to trail by
jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this
Agreement or the Notes or the actions of the Borrower, the Agent or any
Lender in the negotiation, administration, performance or enforcement
thereof or any amendment thereof."
(ee) The term "P Commitment", used throughout the Credit Agreement in
provisions that have not been amended by the foregoing subsections (a)
through (dd), is hereby amended to read "Commitment".
24
(ff) Paragraph 3 of Exhibit C to the Credit Agreement is hereby amended
by adding to the end thereof a new clause (vii) to read as follows:
"and (vii) if the Assignee is organized under the laws of a
jurisdiction outside the United States, delivers to the Agent herewith
the forms prescribed by the Internal Revenue Service of the United
States certifying as to the Assignee's status for purposes of
determining exemption from United States withholding taxes with respect
to all payments to be made to the Assignee under the Agreement or such
other documents as are necessary to indicate that all such payments are
subject to such rates at a rate reduced by an applicable tax treaty."
(gg) A new Schedule V is hereby added to the Credit Agreement, to read
in the form of Schedule V attached hereto.
SECTION 2. Successor Agent. Notwithstanding anything to the contrary
---------------
contained in Section 7.06 of the Credit Agreement, effective as of the date
hereof and subject to the satisfaction of the conditions set forth in Section 4
below:
(a) Citibank hereby resigns as Agent under the Credit Agreement.
(b) The Lenders hereby appoint CUSA as successor Agent under the Credit
Agreement as amended by this Seventh Amendment, the Borrower hereby approves
such appointment of CUSA as Agent, and CUSA hereby accepts such appointment
as Agent.
(c) The term "Agent" as used in the Credit Agreement and each Note, in
each case as amended by this Seventh Amendment and by each subsequent
amendment or other modification of the Credit Agreement or such Note, is and
shall be and mean CUSA in its capacity as Agent under such Credit Agreement.
(d) Each reference to "Citibank, N.A." as Agent in (i) each Note, (ii)
the form of B Note attached to the Credit Agreement as Exhibit A-2, (iii)
the form of Notice of A Borrowing attached to the Credit Agreement as
Exhibit B-1, (iv) the form of Notice of B Borrowing attached to the Credit
Agreement as Exhibit B-2, (v) the form of Assignment and Acceptance attached
to the Credit Agreement as Exhibit C, and (vi) the form of Business Status
Report attached to the Credit Agreement as
25
Exhibit F, is and shall be amended to be a reference to "Citicorp USA, Inc."
in its capacity as Agent under the Credit Agreement as amended hereby and by
each subsequent amendment thereof.
SECTION 3. Assignment. Notwithstanding anything to the contrary
----------
contained in Section 8.07 of the Credit Agreement, effective as of the date
hereof and subject to the satisfaction of the conditions set forth in Section 4
below:
(a) Citibank hereby sells and assigns to CUSA, and Bankers Trust
Company (together with Citibank, the "Assignors") hereby sells and assigns
to each Lender listed as an Assignee on Annex A hereto (each, together with
CUSA, an "Assignee"), and CUSA hereby purchases and assumes from Citibank
one hundred percent of, and each other Assignee hereby purchases and assumes
from Bankers Trust Company the percentage interest specified on Annex A
hereto for such Assignee in and to, all of such Assignor's rights and
obligations under the Credit Agreement as amended by this Seventh Amendment
(without giving effect to the reduction in the Commitment of such Assignor
pursuant to Section 3 of this Seventh Amendment) as of the date hereof
(other than such Assignor's obligations under Section 7.05 thereof to the
extent relating to the period during which it was a Lender and, in the case
of the assignment by Citibank, its rights and obligations under Sections
2.14 and 2.15 thereof and otherwise in connection with any Letter of Credit
or any Issuance thereof), including, without limitation, (i) such Commitment
of such Assignor, (ii) the aggregate outstanding principal amount of A
Advances owing to such Assignor as of the date hereof, and (iii) the A Note
held by such Assignor, so that as a result of such sale, assignment,
purchase and assumption, the Commitment of CUSA is as set forth on the
signature pages hereof and the aggregate outstanding principal amount of A
Advances owing to CUSA is the aggregate outstanding principal amount of A
Advances owing to Citibank immediately prior to giving effect to this
Seventh Amendment, and the Commitment of each such other Assignee is as set
forth on Annex A hereto and the signature pages hereof and the aggregate
outstanding principal amount of A Advances (prior to any payment required
under Section 2.10(d) of the Credit Agreement and Section 4(c) hereof) owing
to such Assignee is as set forth on Annex A hereto.
(b) Each Assignor and each Assignee hereby agrees that the sale and
assignment by such Assignor and to such Assignee, respectively, pursuant
to subsection (a) above,
26
and the purchase and assumption by such Assignee and from such Assignor,
respectively, pursuant to subsection (a) above, is and shall be made on the
terms set forth in paragraphs 2 and 3 of the form of Assignment and
Acceptance attached to the Credit Agreement as Exhibit C thereto, as amended
by this Seventh Amendment. Without limiting the generality of the
foregoing, each Assignee hereby (i) appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers under
the Credit Agreement as amended by this Seventh Amendment as are delegated
to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, (ii) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement as amended by this Seventh Amendment are required to be
performed by it as a Lender, and (iii) other than in the case of CUSA,
delivers herewith the forms referred to in clause (vii) of such paragraph 3.
(c) Each Assignee specifies as its CD Lending Office, Domestic Lending
Office (and address for notices) and Eurodollar Lending Office the office
set forth next to its name on the Annex A hereto or, in the case of CUSA, on
the signature pages hereof.
(d) This Section 3 and Annex A hereto, and the signature pages hereof,
is and will be referred to as the Assignment and Acceptance pursuant to
which each Assignee became a Lender under, and for purposes of, the Credit
Agreement.
(e) The Borrower hereby approves each Assignee as an "Eligible
Assignee" under the Credit Agreement for purposes of Section 8.07 thereof
and otherwise.
SECTION 4. Conditions of Effectiveness. This Seventh Amendment shall
---------------------------
become effective as of the date hereof when
(a) the Agent shall have received (i) counterparts of this Seventh
Amendment executed by the Borrower and all of the Lenders and the Assignor,
or, as to any of the Lenders or the Assignor, advice satisfactory to the
Agent that such Lenders have, or that the Assignor has, executed
counterparts of this Seventh Amendment, and (ii) for purposes of Section 3
above, in the case of any Assignee other than CUSA, the forms referred to in
clause (iii) of Section 3(b),
27
(b) the Borrower shall have paid to the Agent (i) for the ratable
account of the Lenders, (A) the amendment fee equal to 1/4 of 1% of the
Lenders' Commitments (as defined in the Credit Agreement in effect
immediately before the effectiveness of the Seventh Amendment) and (B) the
maturity extension fee equal to 3/4 of 1% of such Commitments, (ii) for the
account of each Lender whose new Commitment (as defined in the Credit
Agreement as amended by this Seventh Amendment) exceeds such Lender's old
Commitment (as defined in the Credit Agreement immediately before the
effectiveness of this Seventh Amendment), the increased commitment fee equal
to 2% of the amount by which such new Commitment exceeds such old
Commitment, and (iii) for the account of the Agent (as defined in the Credit
Agreement as modified by Section 2 of this Seventh Amendment) the agency fee
as shall have been agreed upon between the Borrower and the Agent,
(c) the Borrower shall have received at least $100,000,000 in gross
cash proceeds from the issuance and sale of the Senior Notes and at least
$50,000,000 in gross cash proceeds from the issuance and sale of the
Subordinated Debt, and shall have paid to the Agent, pursuant to Section
2.10(d), the amount of such proceeds specified by Section 2.10(d),
(d) the Agent shall have received (i) copies, certified to be true, of
the instruments, agreements, amendments, supplements and modifications
listed in Schedule V of the Credit Agreement as amended hereby, and (ii)
copies, certified to be true, of amendments to that Debt listed in such
Schedule V indicated therein as being amended, which amendments will (A)
permit the transactions contemplated by subsection (c) above, (B) provide
for the elimination of all requirements relating to the Liquidity Fund, and
(C) otherwise be in form and substance satisfactory to the Majority Lenders,
and
(e) the Agent shall have additionally received all of the following
documents, each document (unless otherwise indicated) being dated the date
of receipt thereof by the Agent (which date shall be the same for all such
documents), in form and substance satisfactory to the Agent:
(1) New Notes to the order of the Lenders, respectively, in the
principal amounts of their respective Commitments (in exchange for the
existing Notes cancelled by the Banks),
28
(2) certified copies of the executed indentures relating to the
Senior Notes and the Subordinated Debt,
(3) certified copies of the resolutions of the Board of Directors
of the Borrower approving this Seventh Amendment and the matters
contemplated thereby,
(4) a certificate of the Secretary or an Assistant Secretary of
the Borrower certifying the names and true signatures of its officers
authorized to sign this Seventh Amendment and the other documents to be
delivered hereunder,
(5) a favorable opinion of Gibson, Dunn & Crutcher, counsel for
the Borrower, in substantially the form of Exhibit A hereto,
(6) a favorable opinion of Richard W. Madsen, Esq., general
counsel for the Borrower, in substantially the form of Exhibit B
hereto,
(7) a favorable opinion of Shearman & Sterling, counsel for the
Agent, in substantially the form of Exhibit C hereto, and
(8) a certificate of a duly authorized officer of the Borrower to
the effect that:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement as amended by this Seventh Amendment,
and in Section 5 of this Seventh Amendment, are correct on and as
of the date of such certificate as though made on and as of such
date,
(B) no event has occurred and is continuing, or would result
from the issuance and sale of the Senior Notes and the
Subordinated Debt or from the application of the proceeds
therefrom, which would constitute an Event of Default or an event
which with the lapse of time or the giving of notice, or both,
would constitute an Event of Default, and
(C) the Borrower has issued and sold, and received proceeds
from the issuance and sale of, the Senior Notes and the
Subordinated Debt as required by Section 4(c) above.
29
Each statement made by the Borrower in the certificate delivered pursuant to
clause (8) of Section 4(e) above shall be a representation and warranty made by
the Borrower in connection with the Credit Agreement for purposes of, and within
the meaning of, Section 6.01(b) of the Credit Agreement.
SECTION 5. Representations and Warranties of the Borrower. The
------------------------------------- --------
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, and is duly
qualified and in good standing as a foreign corporation in the State of
California.
(b) The execution, delivery and performance by the Borrower of this
Seventh Amendment are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action and do not contravene (i) the
Borrower's charter or by-laws, or (ii) law or any contractual restriction
binding on or affecting the Borrower.
(c) No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Borrower of this Seventh
Amendment.
(d) This Seventh Amendment constitutes legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance
with its terms.
SECTION 6. Reference to and Effect on the Credit Agreement. (a) Upon
-----------------------------------------------
the effectiveness of this Seventh Amendment, on and after the date hereof (i)
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 Notes to the "Credit Agreement", "thereunder",
"thereof", "therein" or words of like import referring to the Credit Agreement,
shall mean and be a reference to the Credit Agreement as amended or otherwise
modified by this Seventh Amendment and (ii) each reference in each Note to "this
Note", "hereunder", "hereof", "herein" or words of like import referring to such
Note, and each reference in the Credit Agreement to any or all of the Notes,
"thereunder", "thereof", "therein" or words of like import referring to such
Note or Notes, shall mean and be a reference to such Note or Notes as amended by
this Seventh Amendment.
30
(b) Except as specifically amended above, the Credit Agreement and the
A Notes, and each B Note outstanding on the date hereof, shall remain in full
force and effect and are hereby ratified and confirmed.
(c) Except as the Credit Agreement may expressly be modified hereby,
the execution, delivery and effectiveness of this Seventh Amendment shall not
operate as a waiver of any right, power or remedy of any Lender or the Agent
under the Credit Agreement or any of the Notes nor constitute a waiver of any of
the provisions contained therein.
SECTION 7. Costs and Expenses. The Borrower agrees to pay on demand
------------------
all costs and expenses of the Agent in connection with the preparation,
execution and delivery of this Seventh Amendment, including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Agent with
respect hereto and with respect to advising the Agent as to its rights and
responsibilities hereunder.
SECTION 8. Execution in Counterparts. This Seventh 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 to be an original and all of which taken together shall constitute but
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Seventh Amendment, or of any document required to be delivered
hereunder, by telecopier shall be effective as delivery of a manually executed
counterpart of this Seventh Amendment or such document.
SECTION 9. Governing Law. This Seventh Amendment shall be governed
-------------
by, and construed in accordance with, the laws of the State of New York.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
31
IN WITNESS WHEREOF, the parties hereto have caused this Seventh
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
ROHR, INC.
By:____________________________
Title:
CITIBANK, N.A.,
as resigning Agent
By:____________________________
Vice President
CITICORP USA, INC.,
as successor Agent
By:____________________________
Vice President
Lenders
-------
Commitment
- ----------
$ 0 CITIBANK, N.A.
By:____________________________
Vice President
$ 30,000,000 CITICORP USA, INC.
By:____________________________
Vice President
399 Park Avenue
New York, New York 10043
c/o Citicorp USA, Inc.
725 South Figueroa Street
Los Angeles, California 90017
Attention: National Corporate
Division/Loan Administration
Telex No.: 127001 GCN:LAXIS
Telephone: 213-239-1432
Telecopy: 213-623-3592
32
$ 30,000,000 WELLS FARGO BANK, N.A.
By:____________________________
Title:
$ 25,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By:____________________________
Title:
$ 5,000,000 MANUFACTURERS BANK
By:____________________________
Title:
$ 5,000,000 ROYAL BANK OF CANADA
By:____________________________
Title:
$ 5,000,000 THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
Los Angeles Agency
By:____________________________
Title:
$ 2,500,000 BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By:____________________________
Title:
By:____________________________
Title:
$ 2,500,000 BANCA COMMERCIALE ITALIANA,
Los Angeles Foreign Branch
By:____________________________
Title:
By:____________________________
Title:
33
$ 2,500,000 BANCO CENTRAL HISPANOAMERICANO, S.A.
By:____________________________
Title:
$ 2,500,000 THE MITSUBISHI TRUST AND BANKING CORPORATION,
LOS ANGELES AGENCY
By:____________________________
Title:
- ---------------------------
$110,000,000 Total of the Commitments
===========
Assignors
---------
CITIBANK, N.A. (other than with
respect to Letters of Credit)
By:____________________________
Vice President
BANKERS TRUST COMPANY
By:____________________________
Title: