Exhibit 10.9b
AMENDMENT NO. 1 TO NOTE AGREEMENT
THIS AMENDMENT dated as of September 30, 1998 (this "Amendment") to
the Note Agreement dated as of July 15, 1992 and as amended (the "Note
Agreement") is between Esterline Technologies Corporation, a Delaware
corporation (the "Company"); Angus Electronics Co., a Delaware corporation;
Armtec Defense Products Co., a Delaware corporation; Auxitrol Co., a
Delaware corporation; Auxitrol U.S.A., Inc., a Delaware corporation;
Equipment Sales Co., a Connecticut corporation; Excellon Automation Co., a
California corporation; Excellon U.K., a California corporation; Federal
Products Co., a Delaware corporation; Federal Products U.K. Ltd., a Delaware
corporation; H.A. Sales Co. (formerly Hollis Automation Co.), a Delaware
corporation; Hytek Finishes Co., a Delaware corporation; Scientific Columbus
Co. (formerly Jemtec Electronics Co.), a Delaware corporation; Korry
Electronics Co., a Delaware corporation; Midcon Cables Co., a Delaware
corporation; Republic Electronics Co., a Delaware corporation; TA Mfg. Co.,
a California corporation; Tulon Co., a California corporation; W.A. Whitney
Co., an Illinois corporation (each of the foregoing being a direct or
indirect subsidiary of the Company and hereinafter referred to individually
a "Co-Obligor" and collectively as "Co-Obligors"); and The Northwestern
Mutual Life Insurance Company and the Metropolitan Life Insurance Company
(the "Noteholders").
RECITALS:
A. The Company, together with the Co-Obligors, and the Noteholders
have heretofore entered into the Note Agreement. The Company and such
Co-Obligors have heretofore issued the $40,000,000 Original Principal Amount
of 8.75% Senior Notes Due July 30, 2002 (the "Notes") pursuant to the Note
Agreement. The Noteholders are the holders of 100% of the outstanding
principal amount of the Notes.
B. The Company, the Co-Obligors and the Noteholders now desire to
amend the Note Agreement and the Notes as of September 30, 1998 (the
"Effective Date") in the respects, but only in the respects, hereinafter set
forth.
C. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Agreement unless herein defined or the context
shall otherwise require.
NOW THEREFORE, upon the full and complete satisfaction of the conditions
precedent to the effectiveness of the Amendment set forth in [Section
Sign]4.1 hereof, and in consideration of good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Company, the
Co-Obligors and the Noteholders do hereby agree as follows:
SECTION 1. AMENDMENTS
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1.1. Tulon Co. shall be deleted from the title page of the Note
Agreement and the definition of Co-Obligor and Co-Obligors and shall cease
to be a Co-Obligor under the Note Agreement and the Note.
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1.2. The Note shall be amended to reflect the deletion described
above in Section 1.1 of this Agreement.
SECTION 2. AFFIRMATION OF THE COMPANY AND CO-OBLIGORS
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2.1. The Company and each Co-Obligor confirms to the Noteholders
that, both before and after giving effect to the Amendment, its respective
obligations under the Note Agreement and the Note remain in full force and
effect, and reaffirms its obligations thereunder.
SECTION 3. REPRESENTATIONS AND WARRANTIES
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3.1. To induce the Noteholders to execute and deliver this Amendment,
the Company and each Co-Obligor represents and warrants to the Noteholders
(which representations shall survive the execution and delivery of this
Amendment) that:
(a) this Amendment has been duly authorized, executed and delivered
by it and this Amendment constitutes the legal, valid and binding
obligation, contract and agreement of the Company and each Co-Obligor
enforceable against it in accordance with its terms except as enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles relating to or limiting creditors'
rights generally;
(b) the Note Agreement, as amended by this Amendment, constitutes the
legal, valid and binding obligation, contract and agreement of the Company
and each Co-Obligor enforceable against it in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles relating
to or limiting creditors' rights generally;
(c) the execution, delivery and performance by the Company and each
Co-Obligor of this Amendment (i) have been duly authorized by all requisite
corporate action and, if required, shareholder action, (ii) do not require
the consent or approval of any governmental or regulatory body or agency,
and (iii) will not (A) violate (1) any provision of law, statute, rule or
regulation or its certificate of incorporation or bylaws, (2) any order of
any court or any rule, regulation or order of any other agency or government
binding upon it, (B) violate or require any consent under or with respect to
any provision of any material indenture, agreement or other instrument to
which it is a party or by which its properties or assets are or may be
bound, or (C) result in a breach or constitute (alone or with due notice or
lapse of time or both) a default under any such indenture, agreement or
other instrument;
(d) as of the date hereof and after giving effect to this Amendment,
no Default or Event of Default has occurred which is continuing; and
(e) since October 31, 1997, there has been no change in the financial
condition, operations, business or properties of the Company or any
Subsidiary that, individually or in the aggregate, could reasonably be
expected to have a material adverse effect on the financial condition,
operations, business or properties of the Company and its subsidiaries.
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SECTION 4. CONDITIONS PRECEDENT; MISCELLANEOUS.
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4.1. This Amendment shall not become effective until each and
everyone of the following conditions shall have been satisfied:
(a) executed counterparts of this Amendment, duly executed by the
Company, each Co-Obligor and the Noteholders, shall have been delivered to
the Noteholders; and
(b) The Noteholders shall have received a certificate, in form
satisfactory to it, of an appropriate officer of the Company to the effect
that the representations and warranties of the Company and each Co-Obligor
set forth in [Section Sign]3 hereof are true and correct on and with respect
to the date hereof.
Upon receipt of all of the foregoing, this Amendment shall become
effective as of the Effective Date referred to in Paragraph B of the
Recitals.
4.2. This Amendment shall be construed in connection with and as part
of the Note Agreement, and except as modified and expressly amended by this
Amendment, all terms, conditions and covenants contained in the Note
Agreement and the Notes are hereby ratified and shall be and remain in full
force and effect.
4.3. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Amendment may refer to the Note Agreement without making specific reference
to this Amendment but nevertheless all such references shall include this
Amendment unless the context otherwise requires.
4.4. The descriptive headings of the various Sections or parts of
this Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
4.5. This Amendment shall be governed by and construed in accordance
with Illinois law.
4.6. This Amendment may be executed in any number of counterparts,
each executed counterpart constituting an original, but all together only
one agreement.
ESTERLINE TECHNOLOGIES CORPORATION
By: /s/ R.W. Stevenson
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Title: Executive Vice President and Chief
Financial Officer
ANGUS ELECTRONICS CO.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
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ARMTEC DEFENSE PRODUCTS CO.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
AUXITROL CO.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
AUXITROL U.S.A., INC.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
EQUIPMENT SALES CO.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
EXCELLON AUTOMATION CO.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
EXCELLON U.K.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
FEDERAL PRODUCTS CO.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
FEDERAL PRODUCTS U.K. LTD.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
H.A. SALES CO.
(formerly Hollis Automation Co.)
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
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HYTEK FINISHES CO.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
SCIENTIFIC COLUMBUS CO.
(formerly Jemtec Electronics Co.)
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
KORRY ELECTRONICS CO.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
MIDCON CABLES CO.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
REPUBLIC ELECTRONICS CO.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
TA MFG. CO.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
TULON CO.
By: /s/ R.W. Stevenson
1 -----------------------------------
Title: Vice President
W.A. WHITNEY CO.
By: /s/ R.W. Stevenson
-----------------------------------
Title: Vice President
Accepted and Agreed to as of
September 30, 1998:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ John M. Bremen
-----------------------------------
Its: Executive Vice President, General
Counsel & Secretary
27A
METROPOLITAN LIFE INSURANCE COMPANY
By: _________________________________
Title: ______________________________
27B