SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
(Mark-One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1996.
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ________ TO _________
COMMISSION FILE NUMBER 0-9514
ANDREW CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 36-2092797
(State or other jurisdiction of (IRS Employer
incorporation or organization identification No.)
10500 W. 153RD STREET, ORLAND PARK, ILLINOIS 60462
(Address of principal executive offices and zip code)
(708) 349-3300
(Registrant's telephone number, including area code)
NO CHANGE
(Former name, former address and former fiscal year, if changed since last
report)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period as the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
----- -----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practical date.
Common Stock, $.01 Par Value--60,332,047 shares as of July 12, 1996
<PAGE>
INDEX
ANDREW CORPORATION
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements (Unaudited)
Consolidated balance sheets--June 30, 1996 and September 30, 1995.
Consolidated statements of income--Three months ended June 30, 1996
and 1995; Nine months ended June 30, 1996 and 1995.
Consolidated statements of cash flows--Nine months ended
June 30, 1996 and 1995.
Notes to consolidated financial statements--June 30, 1996.
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K.
Exhibit 10 Material Contracts.
Exhibit 11 Computation of Earnings per Share.
Exhibit 27 Financial Data Schedule
SIGNATURES
<PAGE>
<TABLE>
ANDREW CORPORATION
CONSOLIDATED BALANCE SHEETS
(In thousands)
<CAPTION>
JUNE 30 September 30
1996 1995
--------- ---------
(Unaudited)
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 22,903 $ 46,064
Accounts receivable, less allowances
(Jun. $3,411; Sept. $3,071) 161,976 147,598
Inventories
Finished products 57,229 45,333
Materials and work in process 107,796 78,992
--------- ---------
165,025 124,325
Miscellaneous current assets 6,145 4,758
--------- ---------
TOTAL CURRENT ASSETS 356,049 322,745
OTHER ASSETS
Cost in excess of net assets of businesses
acquired, less accumulated amortization
(Jun. $18,903; Sept. $16,524) 40,643 35,667
Investment in and advances to affiliates 41,184 33,480
Investments and other assets 15,421 10,661
PROPERTY, PLANT AND EQUIPMENT
Land and land improvements 10,417 9,402
Building 67,752 55,069
Equipment 241,803 212,952
Allowances for depreciation and amortization (193,062) (174,862)
--------- ---------
126,910 102,561
--------- ---------
TOTAL ASSETS $ 580,207 $ 505,114
========= =========
<FN>
The balance sheet at September 30, 1995 has been derived from the audited
financial statements at that date.
See Notes to Consolidated Financial Statements
</FN>
</TABLE>
<PAGE>
<TABLE>
ANDREW CORPORATION
CONSOLIDATED BALANCE SHEETS
(In thousands, except share amounts)
(continued)
<CAPTION>
JUNE 30 September 30
1996 1995
--------- ---------
(Unaudited)
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Notes payable $ -- $ 2,450
Accounts payable 35,877 30,628
Accrued expenses and other liabilities 18,810 17,893
Compensation and related expenses 24,203 25,815
Income taxes 19,164 13,994
Current portion of long-term debt 4,576 4,801
--------- ---------
TOTAL CURRENT LIABILITIES 102,630 95,581
DEFERRED LIABILITIES 5,748 7,087
LONG-TERM DEBT, LESS CURRENT PORTION 45,013 45,255
MINORITY INTEREST 8,618 --
STOCKHOLDERS' EQUITY
Common stock (par value, $.01 a share:
100,000,000 shares authorized;
68,479,351 shares issued, including treasury) 685 457
Additional paid-in capital 36,892 35,588
Foreign currency translation 273 1,077
Retained earnings 427,727 368,517
Treasury stock, at cost (8,147,351 shares in 1996;
8,431,449 shares in 1995) (47,379) (48,448)
--------- ---------
418,198 357,191
--------- ---------
TOTAL LIABILITIES AND EQUITY $ 580,207 $ 505,114
========= =========
<FN>
The balance sheet at September 30, 1995 has been derived from the audited
financial statements at that date.
See Notes to Consolidated Financial Statements
</FN>
</TABLE>
<PAGE>
<TABLE>
ANDREW CORPORATION
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
(In thousands, except per share amounts)
<CAPTION>
Three Months Ended Nine Months Ended
June 30 June 30
---------------------- ----------------------
1996 1995 1996 1995
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
SALES $ 197,209 $ 170,478 $ 558,292 $ 485,945
Cost of Products sold 112,173 96,790 328,585 284,023
--------- --------- --------- ---------
GROSS PROFIT 85,036 73,688 229,707 201,922
OPERATING EXPENSES
Sales and administrative 38,594 37,552 109,464 108,967
Research and development 8,239 6,419 23,675 18,665
--------- --------- --------- ---------
46,833 43,971 133,139 127,632
--------- --------- --------- ---------
OPERATING INCOME 38,203 29,717 96,568 74,290
OTHER
Interest expense 1,470 1,051 4,211 4,064
Interest income (585) (214) (1,772) (1,594)
Other (income) expense (240) (855) 1,610 1,477
--------- --------- --------- ---------
645 (18) 4,049 3,947
--------- --------- --------- ---------
INCOME BEFORE INCOME TAXES 37,558 29,735 92,519 70,343
Income taxes 13,551 10,775 33,309 25,300
--------- --------- --------- ---------
NET INCOME $ 24,007 $ 18,960 $ 59,210 $ 45,043
========= ========= ========= =========
NET INCOME PER AVERAGE
SHARE OF COMMON STOCK
OUTSTANDING $ 0.39 $ 0.31 $ 0.97 $ 0.74
========= ========= ========= =========
AVERAGE SHARES OUTSTANDING 61,317 60,723 61,248 60,477
========= ========= ========= =========
<FN>
See Notes to Consolidated Financial Statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
ANDREW CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(In thousands)
<CAPTION>
Nine Months Ended
June 30
--------------------
1996 1995
-------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATIONS
Net Income $ 59,210 $ 45,043
ADJUSTMENTS TO NET INCOME
Equity in Losses of Affiliates -- 1,462
Depreciation and amortization 23,924 18,148
Increase in accounts receivable (11,638) (12,033)
Increase in inventories (33,879) (25,706)
Decrease (increase) in miscellaneous
current and other assets (1,348) 5,357
(Increase) in receivables from affiliates (111) (709)
Increase (decrease) in accounts payable
and other liabilities 5,622 (4,571)
Other 270 (59)
-------- --------
NET CASH FROM OPERATIONS 42,050 26,932
INVESTING ACTIVITIES
Capital expenditures (37,692) (33,106)
Acquisition of business, net of cash acquired (18,550) --
Investments in and advances to affiliates (7,704) (5,471)
Proceeds from sale of property, plant
and equipment 452 260
-------- --------
NET CASH USED IN INVESTING ACTIVITIES (63,494) (38,317)
FINANCING ACTIVITIES
Proceeds from (payments on) long-term borrowings (995) 3,349
Proceeds from (payments on) short-term borrowings (2,452) 1,100
Stock option plans 2,666 2,669
-------- --------
NET CASH FROM (USED IN) FINANCING ACTIVITIES (781) 7,118
Foreign currency translation adjustments (936) 151
-------- --------
Decrease for the period (23,161) (4,116)
Cash and equivalents at beginning of period 46,064 40,714
-------- --------
CASH AND EQUIVALENTS AT END OF PERIOD $ 22,903 $ 36,598
======== ========
<FN>
See Notes to Consolidated Financial Statements
</FN>
</TABLE>
<PAGE>
ANDREW CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE A--BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have been prepared
in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Rule 10-01 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three month period ended June 30, 1996
are not necessarily indicative of the results that may be expected for the year
ending September 30, 1996. For further information, refer to the consolidated
financial statements and footnotes thereto included in the company's annual
report on Form 10-K for the year ended September 30, 1995.
NOTE B--STOCK SPLIT
On February 7, 1996, the company's Board of Directors declared a three-for-two
stock split to stockholders of record on February 21, 1996, payable March 6,
1996. All share and per share amounts have been restated for all periods
presented to reflect the stock split.
NOTE C--ACQUISITION
In March 1996 Andrew Corporation completed its acquisition of The Antenna
Company, a manufacturer and distributor of wireless telephone antennas and
accessories for mobile applications. The transaction has been accounted for as a
pooling of interests. Andrew exchanged 1,541,564 shares of its common stock for
all the outstanding stock of the privately held The Antenna Company.
In compliance with the accounting for a pooling of interests Andrew has restated
all current and prior period financial information to reflect the results from
operations of The Antenna Company.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Net sales for the nine months ended June 30, 1996 were $558.3 million, an
increase of 15% over the first nine months of fiscal year 1995. For the quarter,
net sales increased $26.7 million to $197.2 million. Both the increase for the
quarter and the first nine months of fiscal year 1996 are attributable to
continued growth in Personal Communications Services infrastructure
construction, strong international cellular markets and the wireless
communications area, including wireless accessories markets in the U.S.
Cost of goods sold as a percentage of sales remained relatively unchanged for
both the three and nine months ended June 30, 1996 compared to the same periods
in fiscal year 1995.
Sales and administrative expenses remained relatively stable for both the
quarter and nine months ended June 30, 1996 compared to the same periods in
fiscal year 1995. As a percentage of sales, sales and administrative expenses
decreased 2.4% for the quarter and 2.8% for the first nine months of fiscal
year 1996. Research and development expenses for the third quarter and first
nine months of fiscal year 1996 increased over 27% reflecting new product
development efforts in the commercial and government business segments.
Third quarter foreign currency conversion gains coupled with recording the
minority interest's share in the earnings of the company's Brazilian operations
resulted in other income of $.2 million for the three months ended June 30,
1996. During the third quarter of fiscal year 1995 the company recorded a one
time gain of $1.7 million due to the conversion and sale of the Allen Group
debentures held by the company. This gain was partially offset by the company's
share of its Russian joint venture losses. For the nine months ended June 30,
1996 other expense increased 9% to $1.6 million. This increase is primarily
attributable to costs related to the company's acquisition of The Antenna
Company, in the second quarter of 1996, along with recording the minority
interest's share of the net income in the company's operations in Brazil.
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
Net cash from operations for the nine months ended June 30, 1996 was $42.1
million compared to $26.9 million for the same period in fiscal year 1995.
Increased net income and other liabilities were the major contributors to the
overall growth in net cash from operations. These inflows were partially offset
by an increased investment in inventory and miscellaneous and other current
assets.
Net cash used in investing activities for the first nine months of fiscal year
1996 increased $25.2 million compared to the same period last fiscal year. This
increase is a result of the company's second quarter purchase of a 51% interest
in Mapra Industria e Comerico Ltda. and Gerbo Telecommunicaoes e Servicos Ltda.
for $14.6 million net of cash received. In the third quarter of fiscal year 1996
the company also purchased an 80% interest in Satcom Systems located in South
Africa.
Net cash used in financing activities was $.8 million for the nine months ended
June 30, 1996 compared to net cash from financing activities of $7.1 million for
the same period last fiscal year. During the second quarter of fiscal year 1996
the company liquidated The Antenna Company's short-term debt of $5.0 million. In
the first quarter of fiscal year 1995, the company received $3.8 million in
proceeds from the issuance of an Industrial Development Revenue Bond with Coweta
County, Georgia for construction of a plant in Newnan, Georgia.
<PAGE>
PART II--OTHER INFORMATION
Item 6. Exhibits and reports on Form 8-K
(a) EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Reference
- ----------- ----------- ---------
<S> <C> <C>
10(a) Executive Severance Benefit Plan
(i) Agreement with Floyd L. English
(ii) Agreement with Charles R. Nicholas
10(a)a Executive Severance Benefit Plan Filed as Exhibit 10(a)a to Form 10-K for fiscal year ended
(i) Agreement with Thomas E. Charlton September 30, 1993 and incorporated herein by reference.
(ii) Agreement with John B. Scott
10(a)b(i) Executive Severance Benefit Plan
Agreement with William R. Currer
10(d) Credit Agreement dated Filed as Exhibit 10(e) to Form 10-K for fiscal year ended
June 16, 1993. September 30, 1993 and incorporated herein by reference.
10(d)a First Amendment to Credit Filed as Exhibit 10(d)a to Form 10-K for fiscal year ended
Agreement dated June 16, 1993. September 30, 1995 and incorporated herein by reference.
10(d)b Second Amendment to Credit Filed as Exhibit 10(d)b to Form 10-K for fiscal year ended
Agreement dated June 16, 1993. September 30, 1995 and incorporated herein by reference.
10(d)c Third Amendment to Credit
Agreement dated June 16, 1993.
10(d)d Guaranty dated as of April 11, 1996
10(d)e Replacement Note dated as of
April 8, 1996
11 Computation of Earnings per Share
27 Financial Data Schedule
</TABLE>
(b) Reports on Form 8-K
On May 10, 1996, Registrant filed a Current Report on Form 8-K
reporting one month of the combined operating results of Andrew
Corporation and The Antenna Company in compliance with the Securities
Exchange Commission's Accounting Series Release 135.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date July 24, 1996 /s/ F. L. English
------------------ -------------
F. L. English
Chairman, President and Chief Executive
Officer
Date July 24, 1996 /s/ C. R. Nicholas
------------------ --------------
C. R. Nicholas
Executive Vice President and Chief
Financial Officer
ANDREW CORPORATION
EXECUTIVE SEVERANCE BENEFIT PLAN AGREEMENT
THIS AGREEMENT made as of 27 June 1986, between Andrew Corporation, an
Illinois Corporation ( the "Company" ), and F. L. English (the "Executive").
-------------
W I T N E S S E T H:
1. Participation. The Executive has been designated as a
participant in the Andrew Corporation Executive Severance Benefit Plan
( the "Plan" ) by the Compensation Committee of the Board of Directors of the
Company.
2. Plan Benefits. The Executive agrees to be bound by the provisions of
the Plan, including those provisions which relate to his eligibility to receive
benefits and to the conditions affecting the form, manner, time and terms of
benefit payments under the Plan, as applicable. The Executive understands and
acknowledges that his benefit may be reduced pursuant to Section 10 of the Plan
in order to eliminate any "excess parachute payments" as defined under Section
4999 of the Internal Revenue Code of 1954, as amended. The Executive may elect
to receive his Plan benefits in installment payments, as provided under Section
9 of the Plan, by signing the statement included on page three of this
Agreement. The Executive may make an election to receive installment payments,
or may revoke any such election, at any time prior to the date which is ten days
prior to the date on which a Change in Control is deemed to have occurred;
provided that any election subsequent to the execution of this agreement or
any revocation shall be in writing and shall be subject to the approval of the
Compensation Committee.
3. Federal and State Laws. The Executive shall comply with all federal
and state laws which may be applicable to his participation in this Plan,
including without limitation, his entitlement to, or receipt of, any benefits
under the Plan. If the Executive is subject to the provisions of Section 16(b)
of the Securities Exchange Act of 1934 as amended an in effect at the time of
any Plan benefit payment, he shall comply with the provisions of Section 16(b),
including any applicable exemptions thereto, whether or not such provisions
and exemptions apply to all or any portion of his Plan benefit
payments.
4. Amendment and Termination. The Board of Directors may
amend, modify, suspend or terminate the Plan or this Agreement at any time,
subject to the following:
( a ) without the consent of the Executive, no such amendment,
modification, suspensions or termination shall reduce or
diminish his right to receive any payment or benefit then due
and payable under the Plan immediately prior to such
amendment, modification, suspension or termination; and
( b ) in the event of a Change in Control pursuant to Section 5 of
the Plan, no such amendment, modification, suspension or
termination of benefits, and eligibility therefor, will be
effective prior to the expiration of the 48-consecutive-month
period following the date of the Change in Control.
<PAGE>
5. Beneficiary. The Executive hereby designates his primary
beneficiary(ies) as Executor of the Estate of F. L. English, who will receive
any unpaid benefit payments in the event of the Executive's death prior to full
receipt thereof. In the event that the primary beneficiary(ies) predeceases the
Executive, his unpaid benefits shall be paid to _________________________ as
secondary beneficiary(ies). If more than one primary or secondary beneficiary
has been indicated, each primary beneficiary or, if none survives, each
secondary beneficiary will receive an equal share of the unpaid benefits
unless the Executive indicates specific percentages next to the
beneficiaries' names. Except as required by applicable law, the Executive's
beneficiary or beneficiaries shall not be entitled to any medical, life or
other insurance-type welfare benefits.
6. Arbitration. The Executive agrees to be bound by any
determination rendered by arbitrators pursuant to Section 11 of the Plan.
7. Employment Rights. The Plan and this Agreement shall
not be construed to give the Executive the right to be continued in the
employment of the Company or to give the Executive any benefits not specifically
provided by the Plan.
IN WITNESS WHEREOF, Andrew Corporation has caused this
Agreement to be executed and the Executive has executed this Agreement, both as
of the day and year first above written.
ANDREW CORPORATION
/s/F. L. English By /s/Edward J. Andrew
Title President and Chief Executive Its Chairman of the Board
Officer
ELECTION OF INSTALLMENTS
I hereby elect to receive my Plan benefits in installment payments
pursuant to the terms of Section 9 of the Plan.
- ------------------------------
ANDREW CORPORATION
EXECUTIVE SEVERANCE BENEFIT PLAN AGREEMENT
THIS AGREEMENT made as of 27 June 1986, between Andrew Corporation, an
Illinois Corporation ( the "Company" ), and Charles R. Nicholas
-------------------
( the "Executive").
W I T N E S S E T H:
1. Participation. The Executive has been designated as a
participant in the Andrew Corporation Executive Severance Benefit Plan
( the "Plan" ) by the Compensation Committee of the Board of Directors of the
Company.
2. Plan Benefits. The Executive agrees to be bound by the provisions of
the Plan, including those provisions which relate to his eligibility to receive
benefits and to the conditions affecting the form, manner, time and terms of
benefit payments under the Plan, as applicable. The Executive understands and
acknowledges that his benefit may be reduced pursuant to Section 10 of the Plan
in order to eliminate any "excess parachute payments" as defined under Section
4999 of the Internal Revenue Code of 1954, as amended. The Executive may elect
to receive his Plan benefits in installment payments, as provided under Section
9 of the Plan, by signing the statement included on page three of this
Agreement. The Executive may make an election to receive installment payments,
or may revoke any such election, at any time prior to the date which is ten days
prior to the date on which a Change in Control is deemed to have occurred;
provided that any election subsequent to the execution of this agreement or
any revocation shall be in writing and shall be subject to the approval of the
Compensation Committee.
3. Federal and State Laws. The Executive shall comply with all federal
and state laws which may be applicable to his participation in this Plan,
including without limitation, his entitlement to, or receipt of, any benefits
under the Plan. If the Executive is subject to the provisions of Section 16(b)
of the Securities Exchange Act of 1934 as amended an in effect at the time of
any Plan benefit payment, he shall comply with the provisions of Section 16(b),
including any applicable exemptions thereto, whether or not such provisions
and exemptions apply to all or any portion of his Plan benefit
payments.
4. Amendment and Termination. The Board of Directors may
amend, modify, suspend or terminate the Plan or this Agreement at any time,
subject to the following:
( a ) without the consent of the Executive, no such amendment,
modification, suspensions or termination shall reduce or
diminish his right to receive any payment or benefit then due
and payable under the Plan immediately prior to such
amendment, modification, suspension or termination; and
( b ) in the event of a Change in Control pursuant to Section 5 of
the Plan, no such amendment, modification, suspension or
termination of benefits, and eligibility therefor, will be
effective prior to the expiration of the 48-consecutive-month
period following the date of the Change in Control.
<PAGE>
5. Beneficiary. The Executive hereby designates his primary
beneficiary(ies) as Diane M. Nicholas, who will receive any unpaid benefit
payments in the event of the Executive's death prior to full receipt thereof. In
the event that the primary beneficiary(ies) predeceases the Executive, his
unpaid benefits shall be paid to _______________ as secondary beneficiary(ies).
If more than one primary or secondary beneficiary has been indicated, each
primary beneficiary or, if none survives, each secondary beneficiary will
receive an equal share of the unpaid benefits unless the Executive indicates
specific percentages next to the beneficiaries' names. Except as required by
applicable law, the Executive's beneficiary or beneficiaries shall not be
entitled to any medical, life or other insurance-type welfare benefits.
6. Arbitration. The Executive agrees to be bound by any
determination rendered by arbitrators pursuant to Section 11 of the Plan.
7. Employment Rights. The Plan and this Agreement shall
not be construed to give the Executive the right to be continued in the
employment of the Company or to give the Executive any benefits not specifically
provided by the Plan.
IN WITNESS WHEREOF, Andrew Corporation has caused this
Agreement to be executed and the Executive has executed this Agreement, both as
of the day and year first above written.
ANDREW CORPORATION
/s/C. R. Nicholas By /s/F. L. English
Title VP Finance & CFO Its President & Chief Executive Officer
ELECTION OF INSTALLMENTS
I hereby elect to receive my Plan benefits in installment payments
pursuant to the terms of Section 9 of the Plan.
- ------------------------------
EXHIBIT 10(a)b(i)
ANDREW CORPORATION
EXECUTIVE SEVERANCE BENEFIT PLAN AGREEMENT
THIS AGREEMENT made as of 3 June 1996, between Andrew Corporation, a
Delaware corporation (the "Company"), and William R. Currer (the "Executive").
W I T N E S S E T H:
1. Participation. The Executive has been designated as a participant in the
Andrew Corporation Executive Severance Benefit Plan (the "Plan") by the
Compensation Committee of the Board of Directors of the Company.
2. Plan Benefits. The Executive agrees to be bound by the provisions of the
Plan, including those provisions which relate to his eligibility to receive
benefits and to the conditions affecting the form, manner, time and terms of
benefit payments under the Plan, as applicable. The Executive understands and
acknowledges that his benefit may be reduced pursuant to Section 10 of the Plan
in order to eliminate any "excess parachute payments" as defined under Section
4999 of the Internal Revenue Code of 1954, as amended. The Executive may elect
to receive his Plan benefits in installment payments, as provided under Section
9 of the Plan, by signing the statement included on page three of this
Agreement. The Executive may make an election to receive installment payments,
or may revoke any such election, at any time prior to the date which is ten days
prior to the date on which a Change in Control is deemed to have occurred;
provided that any election subsequent to the execution of this Agreement or any
revocation shall be in writing and shall be subject to the approval of the
Compensation Committee.
3. Federal and State Laws. The Executive shall comply with all federal and state
laws which may be applicable to his participation in this Plan, including
without limitation, his entitlement to, or receipt of, any benefits under the
Plan. If the Executive is subject to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 as amended and in effect at the time of any Plan
benefit payment, he shall comply with the provisions of Section 16(b), including
any applicable exemptions thereto, whether or not such provisions and exemptions
apply to all or any portion of his Plan benefit payments.
4. Amendment and Termination. The Board of Directors may amend, modify,
suspend or terminate the Plan or this Agreement at any time, subject to the
following:
(a) without the consent of the Executive, no such amendment,
modification, suspension or termination shall reduce or diminish his
right to receive any payment or benefit then due and payable under the
Plan immediately prior to such amendment, modification, suspension or
termination; and
(b) in the event of a Change in Control pursuant to Section 5 of the
Plan, no such amendment, modification, suspension or termination of
benefits, and eligibility therefor, will be effective prior to the
expiration of the 48-consecutive-month period following the date of the
Change in Control.
<PAGE>
5. Beneficiary. The Executive hereby designates his primary beneficiary(ies) as
______________________________, who will receive any unpaid benefit payments in
the event of the Executive's death prior to full receipt thereof. In the event
that the primary beneficiary(ies) predeceases the Executive, his unpaid benefits
shall be paid to ______________________________ as secondary beneficiary(ies).
If more than one primary or secondary beneficiary has been indicated, each
primary beneficiary or, if none survives, each secondary beneficiary will
receive an equal share of the unpaid benefits unless the Executive indicates
specific percentages next to the beneficiaries' names. Except as required by
applicable law, the Executive's beneficiary or beneficiaries shall not be
entitled to any medical, life or other insurance-type welfare benefits.
6. Arbitration. The Executive agrees to be bound by any determination rendered
by arbitrators pursuant to Section 11 of the Plan.
7. Employment Rights. The Plan and this Agreement shall not be construed to
give the Executive the right to be continued in the employment of the Company or
to give the Executive any benefits not specifically provided by the Plan.
IN WITNESS WHEREOF, Andrew Corporation has caused this Agreement to be executed
and the Executive has executed this Agreement, both as of the day and year first
above written.
ANDREW CORPORATION
/s/William R. Currer /s/Floyd L. English
_________________ ________________
William R. Currer F. L. English
Group President Chairman, President and
Communication Products Chief Executive Officer
THIRD AMENDMENT DATED
AS OF APRIL 8, 1996
TO CREDIT AGREEMENT
DATED AS OF JUNE 16, 1993
THIS AMENDMENT, dated as of April 8, 1996, is entered into among ANDREW
CORPORATION, a Delaware corporation (the "Company"), the various financial
institutions parties hereto (collectively, the "Lenders"), and BANK OF AMERICA
ILLINOIS, an Illinois banking corporation having its principal office at 231
South LaSalle Street, Chicago, Illinois 60697 ("BAI"), as agent ("Agent"), for
the Lenders.
R E C I T A L S:
A. The Company, the Agent and the Lenders have entered into a Credit
Agreement, dated as of June 16, 1993, as amended by a First Amendment thereto
dated as of August 15, 1994 and a Second Amendment thereto dated September 29,
1995 (said Credit Agreement, as heretofore and hereby amended, shall hereinafter
be referred to as the "Agreement"; the terms defined in the Agreement and not
otherwise defined herein shall be used herein as defined in the Agreement).
B. The Agreement currently permits the Company to designate one or
more of its Subsidiaries as a "Borrower" under the Agreement.
C. The Company has requested the Agent and the Required Lenders to
amend the Agreement to (i) increase the Commitment Amount and (ii) permit the
Company to designate certain joint ventures in which the Company is
participating in Russia and elsewhere as a "Borrower" under the Agreement.
D. With respect to clause (ii) of Recital C above, the Agent and the
Required Lenders are willing to permit each such joint venture to become
"Borrower" under the Agreement on the following conditions: (i) BAI shall be the
only Lender to make Loans to such joint ventures; (ii) upon default by a joint
venture under any Loan, such Loan shall immediately, and without further action
by the Agent or any other Person, be deemed to constitute a Loan of the same
Type of the Company made by BAI in which each Lender participates in the amount
of each Lender's Percentage as if the Company was the Borrower on the date of
such Loan; (iii) the Company guaranties the Loans to the joint ventures and
indemnifies and holds the Lenders harmless from any claims arising in connection
therewith; and (iv) the Company acts as agent for such joint ventures in dealing
with the Agent and BAI; and the Company has agreed to assume such risks and
agency responsibility as provided herein.
E. The Company, the Agent and the Required Lenders wish to amend the
Agreement to increase the Commitment Amount and to revise the definition of
Borrower to allow each such joint venture to become a Borrower on the conditions
contained herein and to otherwise amend certain provisions of the Agreement.
F. Therefore, the parties hereto agree as follows:
1. RECITALS. The Recitals to this Amendment are hereby incorporated
into this Amendment and made a part hereof.
2. AMENDMENTS TO THE AGREEMENT.
2.1 Recital. The first recital of the Agreement is hereby
amended as of the date hereof by deleting the dollar amount
$50,000,000" appearing therein and substituting "$75,000,000" therefor.
2.2 Recital. Clause (b) of the third Recital of the Agreement
is hereby amended as of the date hereof by deleting it in its entirety
and substituting the following therefor:
"(b) for general corporate purposes and working capital
purposes of the Company, its Subsidiaries and the Designated Joint
Ventures".
2.3 Section 1.1 of the Agreement. Section 1.1 of the Agreement
is hereby amended as of the date hereof by (i) amending and restating
the definitions of "Commitment Amount", "Commitment Termination Event",
"Designation Letter" and "Stated Maturity Date" in their entirety and
(ii) adding the following additional definitions in alphabetical order:
"Adjusted Percentage" means, relative to any Lender, the
percentage set forth opposite its name on Schedule I hereto.
"BAI" means Bank of America Illinois, and its successors and
assigns.
"Commitment Amount" means on any date, $75,000,000 (in Dollars
and/or Dollar Equivalent), as such amount may be reduced from time to
time pursuant to Section 2.2.1, less any Loans outstanding to any
Designated Joint Venture.
"Commitment Termination Event" means
(a) the occurrence of any Default described in
clauses (a) through (e) of Section 8.1.9 with respect
to the Company, any Designated Entity or any
Subsidiary; or
(b) the occurrence and continuance of any other
Event of Default and either
(i) the declaration of the Loans to be due
and payable pursuant to Section 8.3, or
(ii) in the absence of such declaration, the
giving of notice by the Agent, acting at the
direction of (i) the Required Lenders, in the case of
Loans to a Borrower which is not a Designated Joint
Venture, or (ii) BAI only, in the case of Loans to a
Borrower which is a Designated Joint Venture, to the
Company, that the Commitment or Designated Joint
Venture Commitment, as applicable, has been
terminated.
"Designated Entity" means either a Designated Subsidiary or
Designated Joint Venture, as applicable.
"Designated Joint Venture" means a Joint Venture or other
joint venture identified in a Designation Letter and acceptable to the
Agent and BAI.
"Designated Joint Venture Commitment" means, as to BAI, BAI's
obligation to make Loans pursuant to Section 2.1.1 to a Designated
Joint Venture.
"Designated Joint Venture Commitment Amount" means
$32,500,000.
"Designation Letter" means in the case of a Designated
Subsidiary, a letter in the form of Exhibit E signed by an Authorized
Officer of the Company and each Designated Subsidiary identified
therein, and in the case of a Designated Joint Venture, a letter in the
form of Exhibit E-1 signed by an Authorized Officer of the Company.
"Joint Venture" means each of (i) The Russian-American Joint
Stock Company for Long Distance Communication Systems ("RASCOM"), (ii)
Russian-American Joint Venture METROCOM Closed Joint Stock Company
("METROCOM") and (iii) Russian-American Joint Venture MACOMNET Limited
Liability Company ("MACOMNET").
"Note" means a promissory note of the Company or other
applicable Borrower payable to any Lender in the form of (i) Exhibit A
hereto in the case of a Borrower other than a Designated Joint Venture
and (ii) Exhibit A-1 hereto in the case of a Designated Joint Venture
with respect to Eurodollar Rate Loans or Reference Rate Loans, as each
such promissory note may be amended, or otherwise modified from time to
time, evidencing the aggregate Indebtedness of such Borrower to such
Lender resulting from outstanding Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or
renewal thereof.
"Person" means any natural person, corporation, partnership,
firm, joint venture, limited liability company, association, trust,
government, governmental agency or any other entity, whether acting in
an individual, fiduciary or other capacity.
"Required Lenders" means, (1) with respect to matters
affecting all the Lenders and not strictly related to a Loan to a
Designated Joint Venture, (a) at any time that there are three (3)
Lenders, any two (2) Lenders holding at least 51% of the then aggregate
outstanding principal amount of the Notes then held by the Lenders, or,
if no such principal amount is then outstanding, any two (2) Lenders
having at least 51% of the Commitments and (b) at all other times,
Lenders holding at least 51% of the then aggregate outstanding
principal amount of the Notes then held by the Lenders, or, if no such
principal amount is then outstanding, Lenders having at least 51% of
the Commitments, and (2) with respect to matters strictly related to a
Designated Joint Venture or Loan thereto, BAI.
"Stated Maturity Date" means, (a) with respect to a Borrower
other than a Designated Joint Venture, March 31, 1999, or as extended,
if extended pursuant to Section 2.2.2, and (b) with respect to a
Borrower who is a Designated Joint Venture, March 31, 1997."
2.4 Global Amendment - Designated Subsidiary. All references
in the Agreement (other than Section 1.1) to "Designated Subsidiary" are hereby
deleted as of the date hereof and a reference to "Designated Entity" substituted
therefor.
2.5 Section 2.1.1 of the Agreement. Section 2.1.1 of the
Agreement is hereby amended as of the date hereof by deleting it in its entirety
and substituting the following therefor:
"SECTION 2.1.1 Commitment of Each Lender. From time to time on
any Banking Day occurring prior to the Commitment Termination Date,
each Lender will make loans (relative to such Lender, and of any Type,
the "Loans") to a Borrower (other than a Designated Joint Venture)
equal to such Lender's Percentage of the aggregate amount of the
Borrowing requested by such Borrower to be made on such day until the
outstanding Loans made by BAI to all Borrowers (including all
Designated Joint Ventures) equal $37,500,000, after which time each
Lender other than BAI will make Loans to a Borrower (other than a
Designated Joint Venture) equal to its Adjusted Percentage of the
aggregate amount of the Borrowing requested by such Borrower to be made
on such date. BAI further agrees, from time to time on any Banking Day
prior to the Commitment Termination Date for Loans to Designated Joint
Ventures, to make Loans to a Designated Joint Venture equal to the
lesser of (a) the Designated Joint Venture Commitment Amount or (b)
$37,500,000 less the amount of Loans made by BAI outstanding to any
Borrower. Eurocurrency Rate Loans shall be made in a currency which is
not a Designated Currency only with the consent of all Lenders. Only
BAI will make Loans to a Designated Joint Venture and such Loans may
only be Eurodollar Rate Loans and Reference Rate Loans. The Commitment
of each Lender described in this Section 2.1.1 is herein referred to as
its "Commitment" and the Commitment of BAI to lend to Designated Joint
Ventures described in this Section 2.1.1 is referred to as the
"Designated Joint Venture Commitment". On the terms and subject to the
conditions hereof, each Borrower may from time to time borrow, repay
and reborrow Loans made to it."
2.6 Section 2.1.2 of the Agreement. Section 2.1.2 of the
Agreement is hereby amended as of the date hereof by replacing the period at the
end of clause (c) thereof with ";or" and adding the following clause (d)
thereto:
"(d) after giving effect thereto, the aggregate outstanding
principal amount of all Loans of BAI to all Designated Joint Ventures
would exceed the Designated Joint Venture Commitment Amount."
2.7 Section 2.2.1 of the Agreement. Section 2.2.1 of the
Agreement is hereby amended as of the date hereof by deleting it in its entirety
and substituting the following therefor:
"SECTION 2.2.1 Reduction of Commitments. The Company may, from
time to time on any Banking Day occurring after the time of the initial
Borrowing hereunder, voluntarily reduce the Commitment Amount or
Designated Joint Venture Commitment Amount; provided, however, that the
Commitment Amount shall never be less than the Designated Joint Venture
Commitment Amount and provided, further, that all reductions shall
require at least five (5) Banking Days' prior notice to the Agent and
be permanent, and any partial reduction of the Commitment Amount or
Designated Joint Venture Commitment Amount shall be in a minimum amount
of $1,000,000 (in Dollars and/or Dollar Equivalent) and in an integral
multiple of $1,000,000 (in Dollars and/or Dollar Equivalent)."
2.8 Section 2.3 of the Agreement. Section 2.3 of the Agreement
is hereby amended as of the date hereof by (i) inserting the following proviso
at the end of the first sentence thereof and (ii) inserting the phrase "or BAI,
as applicable," after the word "Lender" the first time it appears in the third
sentence thereof:
"provided, however, that only an Authorized Corporate Official
of the Company may request Eurodollar Rate Loans or Reference Rate
Loans only on behalf of a Borrower which is a Designated Joint
Venture".
2.9 Section 2.4 of the Agreement. Section 2.4 of the Agreement
is hereby amended as of the date hereof by adding the following proviso at the
end of the first sentence thereof:
"provided, further, that only an Authorized Corporate Official
of the Company, on behalf of a Borrower which is a Designated Joint
Venture, may continue such Borrower's Reference Rate Loans or
Eurodollar Rate Loans as such Loans or convert such Loans into a
Eurodollar Loan or Reference Rate Loan, as applicable."
2.10 Section 2.7 of the Agreement. Section 2.7 of the
Agreement is hereby amended as of the date hereof by (i) adding the
parenthetical "(other than a Borrower which is a Designated Joint Venture)"
after the word Borrower the first time it appears therein and (ii) adding the
following new sentence after the first sentence thereof:
"BAI's Loans to a Designated Joint Venture shall be evidenced
by a Note made by such Borrower payable to the order of BAI in a
maximum principal amount equal to the face amount of the applicable
Note."
2.11 Section 3.1(b) of the Agreement. Section 3.1(b) of the
Agreement is hereby amended as of the date hereof by restating it in its
entirety as follows:
"(b) shall, on each date when any reduction in the Commitment
Amount or Designated Joint Venture Commitment Amount, as applicable,
shall become effective, including pursuant to Section 2.2.1, (i) in the
case of a Loan to a Borrower not constituting a Designated Joint
Venture, make a mandatory prepayment of all Loans to such Borrower such
that the aggregate amount of prepayments made by all Borrowers (other
than Designated Joint Ventures) shall be equal to the excess, if any,
of the aggregate, outstanding principal amount of all Loans to all
Borrowers (other than Designated Joint Ventures) over the Commitment
Amount as so reduced; and (ii) in the case of a Loan to a Designated
Joint Venture, make a mandatory prepayment of all Loans to such
Borrower such that the aggregate amount of prepayments made by all
Designated Joint Ventures shall be equal to the excess, if any, of the
aggregate, outstanding principal amount of all Loans to all Designated
Joint Ventures over the Designated Joint Venture Commitment Amount as
so reduced; and".
2.12 Section 3.1 of the Agreement. Section 3.1 of the
Agreement is hereby amended as of the date hereof by deleting the reference
therein to "Section 4.4" and substituting a reference to "Section 4.5" therefor.
2.13 Sections 3.1 of the Agreement. Section 3.1 of the
Agreement is hereby amended as of the date hereof by adding the following new
Section 3.1.1 thereto:
"SECTION 3.1.1 Mandatory Prepayment. If (i) the aggregate
amount of Loans outstanding to all Designated Joint Ventures is less than the
Designated Joint Venture Commitment Amount, (ii) the aggregate outstanding
amount of Loans made by BAI equals $37,500,000, (iii) the Company, on behalf of
a Designated Joint Venture, requests a Loan from BAI in an amount equal to all
or a portion of the unused Designated Joint Venture Commitment Amount, and (iv)
all conditions to Borrowing are met, then the Company agrees immediately to
prepay and cause all other Borrowers (other than Designated Joint Ventures) to
prepay such Loans (other than Loans to Designated Joint Ventures) in such an
amount so as to enable BAI to make the requested Loan to the Designated Joint
Venture up to the amount of the Designated Joint Venture Commitment Amount. Each
such mandatory prepayment shall be accompanied by all accrued and unpaid
interest, together with any charges required by Section 4.5."
2.14 Section 3.2.1(a) of the Agreement. Section 3.2.1(a) of
the Agreement is hereby amended as of the date hereof by adding the following
proviso before the period therein:
"provided, however, that Reference Rate Loans to a Borrower
which is a Designated Joint Venture shall accrue and bear interest
until maturity at rate per annum equal to the Alternate Reference Rate
from time to time in effect plus (i) (A) in the case of such Loans to
METROCOM, if the outstanding principal amount of all Loans to METROCOM
is less than or equal to $6,382,000, 5% per annum; (B) in the case of
such Loans to MACOMNET, if the outstanding principal amount of all
Loans to MACOMNET is less than or equal to $7,350,000, 6% per annum; or
(C) in the case of such Loans to RASCOM, if the outstanding principal
amount of all Loans to RASCOM is less than or equal to $3,668,000,
3.75% per annum; and (ii) on the outstanding principal amount of such
Loans in excess of the principal amount specified above for such
Designated Joint Venture, 8.50% per annum."
2.15 Section 3.2.1(b) of the Agreement. Section 3.2.1(b) of
the Agreement is hereby amended as of the date hereof by adding the following
proviso before the period therein:
"provided, however, that Eurodollar Rate Loans to a Borrower
which is a Designated Joint Venture shall accrue and bear interest,
during each Interest Period applicable thereto, at a rate per annum
equal to the Interbank Rate (Reserve Adjusted) for such Interest Period
plus (i)(A) in the case of such Loans to METROCOM, if the outstanding
principal amount of all Loans to METROCOM is less than or equal to
$6,382.000, 5% per annum; (B) in the case of such Loans to MACOMNET, if
the outstanding principal amount of all Loans to MACOMNET is less than
or equal to $7,350,000, 6% per annum; or (C) in the case of such Loans
to RASCOM, if the outstanding principal amount of all Loans to RASCOM
is less than or equal to $3,668,000, 3.75% per annum; and (ii) in the
case of such Loans in excess of the amount specified above for all
Loans to such Designated Joint Venture, 8.50% per annum".
2.16 Section 3.2.3(b) of the Agreement. Section 3.2.3(b) of
the Agreement is hereby amended as of the date hereof by adding the phrase
"Designated Joint Venture Commitment Amount, as applicable", after the phrase
"Commitment Amount" appearing therein.
2.17 Section 3.3.1 of the Agreement. Section 3.3.1 of the
Agreement is hereby deleted in its entirety as of the date hereof and the
following substituted therefor:
"SECTION 3.3.1 Facility Fee. The Company agrees to pay to the
Agent for the account of each Lender, for the period (including any
portion thereof when its Commitment is suspended by reason of any
Borrower's inability to satisfy any condition of Article V) commencing
on the Effective Date, a facility fee at the rate of fifteen hundredths
of one-percent (.15%) per annum on such Lender's Percentage of the
Commitment Amount plus any Loans outstanding to any Designated Joint
Venture. Such facility fees shall be payable by the Company in arrears
on each Quarterly Payment Date, commencing with the first such day
following August 15, 1994, and on the Commitment Termination Date for
the period then ending."
2.18 Section 4.7 of the Agreement. The first sentence of Section 4.7 of
the Agreement is hereby deleted in its entirety as of the date hereof and the
following substituted therefor:
"Unless otherwise expressly provided, all payments by a
Borrower pursuant to this Agreement, the Notes or any other
Loan Document shall be made by such Borrower to the Agent for
the account of (a) if no Event of Default shall have occurred
and be continuing, such Lenders and their Loans as shall be
directed by the Borrower, or (b) if an Event of Default shall
have occurred and be continuing (and thereby any Loans to a
Designated Joint Venture are deemed to constitute Loans of the
same Type to the Company pursuant to Section 8.1), each Lender
in an amount equal to the product of (i) the amount of such
payment times (ii) a fraction the numerator of which is the
amount of Loans outstanding made by such Lender and the
denominator of which is the total amount of Loans outstanding
made by all the Lenders. Payments of the facility fee
specified in Section 3.3.1 shall be distributed by the Agent
for the account of each Lender in the amount of its Percentage
thereof."
2.19 Section 4.8 of the Agreement. Section 4.8 of the
Agreement is hereby amended as of the date hereof by (i) making the "I" in "If"
at the beginning thereof lower case and (ii) adding the phrase "Except as
contemplated by Section 4.7", at the beginning thereof.
2.20 Section 4.9 of the Agreement. Section 4.9 of the
Agreement is hereby amended as of the date hereof by deleting the reference to
"Section 8.1.11" appearing thereunder and substituting "Section 8.1.9" therefor.
2.21 Section 4.10 of the Agreement. Section 4.10 of the
Agreement is hereby amended as of the date hereof by deleting the reference to
"fourth recital" and substituting "third recital" therefor.
2.22 Sections 5.2 and 5.3 of the Agreement Sections 5.2 and
5.3 of the Agreement are hereby amended as of the date hereby by adding (i) the
phrase "or BAI, as applicable" after the word "Lenders" or "Lender" each time it
appears therein and (ii) the phrase "or any Designated Joint Venture" after the
word "Subsidiary" or "Subsidiaries" appearing therein.
2.23 Section 6.1 of the Agreement. Section 6.1 of the
Agreement is hereby amended as of the date here of by adding the following at
the end thereof:
"Each Designated Joint Venture is an entity validly organized
and existing and in good standing under the laws of the jurisdiction of
its formation and is duly qualified to do business and is in good
standing in each jurisdiction where the nature of its business requires
such qualification, except such jurisdictions where failure to so
qualify and be in good standing is not reasonably likely to have a
material adverse effect on the operations or financial condition of the
Designated Joint Venture taken as a whole. Each Designated Joint
Venture has full power and authority and holds, and will hold, all
requisite governmental consents and other approvals to enter into,
deliver and perform its Obligations under its Note and each other Loan
Document to which it is a party and to own and hold under lease its
property and to conduct its business substantially as currently
conducted by it."
2.24 Schedule 6.9 to the Agreement. Schedule 6.9 to the
Agreement is hereby amended as of the date hereof to be in the form of Schedule
6.9 hereto.
2.25 Sections 6.3, 6.7, 6.10, 6.11, 7.1.2, 8.1.5, 8.1.6 and
8.1.9 of the Agreement. Sections 6.3, 6.7, 6.10, 6.11, 7.1.2, 8.1.5, 8.1.6 and
8.1.9 of the Agreement are hereby amended as of the date hereof by adding the
phrase "and/or Designated Entity" immediately after the word "Subsidiaries" or
"Subsidiary" each time its appears therein.
2.26 Section 8.1 of the Agreement. Section 8.1 of the
Agreement is hereby amended as of the date hereof by (i) adding the following
new clause 8.1.10 thereto and (ii) adding the following proviso at the end of
Section 8.1 with the intent that it modify Section 8.1.1 to 8.1.10 inclusive.
"SECTION 8.1.10. Regulatory Authority. Any domestic or foreign
regulatory authority shall (i) bring any action or claim (judicial or
otherwise) against any Designated Joint Venture alleging that such
Designated Joint Venture is not authorized to borrow the Loans, or
seeking to suspend or revoke such Designated Joint Venture's authority
to borrow the Loans or (ii) bring any action or claim (judicial or
otherwise) against the Agent or BAI alleging that the Agent or BAI is
not authorized to make the Loans to a Designated Joint Venture, or
seeking to suspend or revoke the Agent's or BAI's authority to make
Loans to a Designated Joint Venture."
Provided, however, that in the event an Event of Default occurs as a
result of any event or occurrence with respect to any Designated Joint Venture
and not any other Borrower, BAI, the Agent and the Lenders agree not to exercise
any of their rights or remedies under Section 8.3 unless the Company (i) fails
to assume or is prevented from assuming the Obligations of such defaulting
Designated Joint Venture as contemplated by the third sentence of this proviso
and/or (ii) otherwise fails to cure such Event of Default within two (2) Banking
Days of notice thereof from BAI in a manner satisfactory to BAI, solely, in its
sole discretion. If such Event of Default with respect to any Designated Joint
Venture is cured in the manner specified in this proviso, such Event of Default
shall be deemed to have been waived by BAI, the Agent and the Lenders and the
Company shall be restored to its former position and rights hereunder (except
that the Company shall be substituted as the Borrower on the Loans to the
defaulting Designated Joint Venture), and any Event of Default so waived shall
be deemed to be cured and not continuing; but no such waiver shall extend to or
impair any subsequent or other Event of Default. Upon the occurrence of any
Event of Default described in this Section 8.1 with respect to a Loan to a
Designated Joint Venture or upon the occurrence of an Event of Default with
respect to the Company when any Loan is outstanding to a Designated Joint
Venture and assuming for the purpose of this sentence the Company was the
original Borrower of such Loan to such Designated Joint Venture, if such Loan
would have been made to the Company because the conditions specified in Sections
5.3.1 were satisfied on the date such Loan was made to the Designated Joint
Venture, as of the date of such Event of Default, the Company, the Agent, BAI
and the Lenders hereby deem such Loan to such Designated Joint Venture to be a
Loan of the same Type to the Company made by BAI as of the date the Loan was
made to the Designated Joint Venture for all purposes of the Loan Documents
without any further action on the part of the Agent, the Lenders, BAI or the
Company and the Company, the Agent and the Lenders acknowledge and agree to the
foregoing."
2.27 Sections 8.2 and 8.3 of the Agreement. Sections 8.2 and
8.3 of the Agreement are hereby deleted as of the date hereof and the following
substituted therefor:
"SECTION 8.2. Action if Bankruptcy. If any Event of Default
described in clauses (a) through (e) of Section 8.1.9 shall occur with
respect to the Company, any Subsidiary or Designated Entity (other than
a Designated Joint Venture), the Commitments (including the Designated
Joint Venture Commitment) (if not theretofore terminated) shall
automatically terminate and be reduced to zero and the outstanding
principal amount of all outstanding Loans and all other Obligations
shall automatically be and become immediately due and payable, without
notice or demand.
SECTION 8.3. Action if Other Event of Default. If any Event of
Default (other than any Event of Default described in clauses (a)
through (e) of Section 8.1.9 with respect to the Company, any
Subsidiary or Designated Entity, but including a bankruptcy default
with respect to a Designated Joint Venture) shall occur for any reason,
whether voluntary or involuntary, and be continuing, the Agent, upon
the direction of the Required Lenders, in the case of Loans to
Borrowers not constituting a Designated Joint Venture, and BAI only, in
the case of Loans to Borrowers constituting Designated Joint Ventures,
shall by notice to the Company declare all or any portion of the
outstanding principal amount of the Loans and other Obligations to be
due and payable and/or the Commitments (including the Designated Joint
Venture Commitment) (if not theretofore terminated) to be terminated
and reduced to zero, whereupon the full unpaid amount of such Loans and
other Obligations which shall be so declared due and payable shall be
and become immediately due and payable, without further notice, demand
or presentment, and/or, as the case may be, the Commitments shall
terminate and be reduced to zero."
2.28 Section 9 of the Agreement. Section 9 of the Agreement is
hereby amended as of the date hereof by adding a new Section 9.8 as follows:
9.8 Participation in Deemed Company Loans. Upon any
Loan made by BAI to any Designated Joint Venture being deemed
to constitute a Loan to the Company pursuant to the proviso of
Section 8.1, and if the amount of such Loan outstanding as of
such date exceeds any Lender's Percentage thereof (assuming
for purposes of this Section that all Lenders were required to
make such Loan in the amount of their Percentage to the
Company), the Lender holding any excess amount hereby sells
and each other Lender hereby purchases such participations in
the Loan as of such date as shall be necessary to cause each
Lender to participate in such Loan in an amount equal to its
Percentage thereof. Each of Borrower, BAI and Lender agree
that any such Lender so purchasing a participation from the
selling Lender pursuant to this Section shall be deemed a
"Lender" for all purposes of the Loan Documents. On or before
1:00 p.m. (Chicago time) on the Banking Day such Loan to a
Designated Joint Venture is deemed to constitute a Loan to the
Company, each purchasing Lender shall deposit with Agent, for
the account of the selling Lender, same day funds in an amount
equal to its participation purchase price. Each Lender
acknowledges that its obligations to purchase participations
under this Section are binding notwithstanding that its
Commitment to lend to any Borrower may have been terminated
because of the insolvency of the Company or otherwise."
2.29 Section 10.1 of the Agreement. The introductory phrase
and clauses (a) and (b) of Section 10.1 of the Agreement are hereby deleted as
of the date hereof and the following substituted therefor:
"SECTION 10.1. Waivers, Amendments, etc. The provisions of
this Agreement and of each other Loan Document may from time to time be
amended, modified or waived, if such amendment, modification or waiver
is in writing and consented to by the Company and the Required Lenders
in the case of Loans to a Borrower other than a Designated Joint
Venture, or BAI only, in the case of Loans to a Designated Joint
Venture; provided, however, that no such amendment, modification or
waiver which would:
(a) modify any requirement hereunder that any
particular action be taken by all the Lenders, by the Required
Lenders or BAI, as applicable, shall be effective unless
consented to by each Lender or BAI, as applicable;
(b) modify this Section 10.1, change the definition
of "Required Lenders", increase the Commitment Amount,
Designated Joint Venture Commitment Amount or the Percentage
of any Lender (except pursuant to assignments in accordance
with Section 10.11), reduce any fees described in Article III,
or extend the Commitment Termination Date shall be made
without the consent of each Lender and each holder of a Note
except that the Designated Joint Venture Commitment Amount
shall only be increased upon the exclusive consent of BAI;..."
2.30 Schedule I of the Agreement. Schedule I of the Agreement
is hereby amended as of the date hereof to be in the form of Schedule I hereto.
2.31 Exhibits A-1 and E-1 to the Agreement. The Agreement is
hereby amended as of the date hereof to add Exhibits A-1 and E-1 thereto in the
form of Exhibits A-1 and E-1 hereto.
2.32 Exhibits A and C to the Agreement. Exhibits A and C to
the Agreement are hereby amended as of the date hereof to be in the form of
Exhibits A and C hereto.
3. WARRANTIES. To induce the Agent and the Lenders to enter into
this Amendment, the Company warrants that:
3.1 Authorization. The Company and each Designated Joint
Venture is duly authorized to execute and deliver this Amendment, the Guaranty,
the Replacement Notes (hereafter defined) and the Notes, as applicable, and each
is and will continue to be duly authorized to borrow monies under the Agreement,
as amended hereby, and to perform its obligations under the Agreement, as
amended hereby, the Guaranty, the Replacement Notes and the Notes, as
applicable.
3.2 No Conflicts. The execution and delivery of this
Amendment, the Guaranty, the Replacement Notes and the Notes by the Company and
any Designated Joint Venture, as applicable, and the performance by the Company
or such Designated Joint Venture of their respective obligations under the
Agreement, as amended hereby, the Guaranty, the Replacement Notes and the Notes
do not and will not conflict with any provision of law or of the organizational
documents of the Company or such Designated Joint Venture or of any agreement
binding upon the Company or such Designated Joint Venture.
3.3 Validity and Binding Effect. The Agreement, as amended
hereby, the Guaranty, the Replacement Notes and the Notes are a legal, valid and
binding obligation of the Company and each Designated Joint Venture party
thereto, enforceable against the Company or such Designated Joint Venture in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws of general application affecting
the enforcement of creditors' rights or by general principles of equity limiting
the availability of equitable remedies.
4. CONDITIONS PRECEDENT. The amendments contemplated by Section 2
hereof are subject to the prior or concurrent satisfaction of the conditions
precedent specified in Sections 4.1 and 4.3 through 4.5 inclusive and the
obligation of BAI to fund the Initial Borrowing of any Designated Joint Venture
then borrowing is subject to the satisfaction of the conditions specified in
Sections 4.2 through 4.6 inclusive.
4.1 Amendment Documentation. The Company shall have delivered
to the Agent (with sufficient copies for each Lender) all of the following, each
duly executed and dated the closing date hereof, in form and substance
satisfactory to the Agent:
(a) Amendment. Counterparts of this Amendment duly executed
by the Company and the Lenders;
(b) Replacement Notes. A promissory note of the Company
(collectively, the "Replacement Notes") for each Lender, substantially in the
form set forth as Exhibit A hereto.
Upon receipt of its Replacement Note, each Lender will: (i)
record the aggregate unpaid principal amount of its Note dated June 16, 1993
(collectively, the "Original Note") issued under the Agreement in its records
or, at its option, on the schedule attached to its Replacement Note as the
aggregate unpaid principal amount of its Replacement Note; (ii) mark the
Original Note as replaced by the Replacement Note; and (iii) return the Original
Note to the Company upon the Company's request. Thereafter, all references in
the Agreement and any and all instruments or documents provided for therein or
delivered or to be delivered thereunder or in connection therewith to the
Original Notes shall be deemed references to the Replacement Notes. The
replacement of the Original Notes with the Replacement Notes shall not be
construed to deem paid or forgiven the unpaid principal amount of, or unpaid
accrued interest on, the Original Notes outstanding at the time of replacement;
(c) Resolutions, etc. A certificate of the secretary or
assistant secretary of the Company as to:
(i) resolutions of the Board of Directors of the
Company then in full force and effect authorizing the
execution, delivery and performance of this Amendment, the
Replacement Notes and the Guaranty and authorizing the
borrowings under the Agreement, as amended hereby;
(ii) all documents evidencing other corporate action
necessary for the execution, delivery and performance of this
Amendment, the Replacement Notes and the Guaranty by the
Company;
(iii) all approvals or consents, if any, with respect
to this Amendment, the Replacement Notes and the Guaranty; and
(iv) the incumbency and specimen signatures of the
Company's officers authorized to sign this Amendment, the
Replacement Notes the Guaranty and each other document to be
executed by the Company,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the secretary or assistant secretary of the
Company canceling or amending such prior certificate;
(d) Opinion of Counsel. An opinion addressed to the Agent
and all Lenders, from Gardner, Carton & Douglas, counsel to the Company,
substantially in the form of Exhibit I hereto;
(e) Guaranty. A Guaranty, duly executed by the Company, of
the obligations of each Designated Joint Venture under the Agreement and the
Notes of such Designated Joint Venture;
(f) Certificate. A certificate of the Treasurer of the
Company as to, among other things, the matters set out in Sections 4.3 and 4.4
hereof; and
(g) Other. Such other documents as the Agent may
reasonably request.
4.2 Initial Loan to Designated Joint Venture. The Company
shall have delivered to the Agent all of the following, each duly executed and
dated on or before the date of the initial Borrowing of each Designated Joint
Venture then borrowing, in form and substance satisfactory to the Agent and BAI:
(a) Designated Joint Venture Notes. The Notes, for the
account of BAI, of each Designated Joint Venture then borrowing, duly executed
and delivered by such Designated Joint Venture;
(b) Authorizations and Approvals. Authenticated copies of all
such governmental authorizations, consents, approvals, and licenses as may be
required under applicable law and regulations for the Company and for each
Designated Joint Venture then borrowing to make and perform its Notes and to
borrow and (in the case of the Company) guaranty Loans under the Agreement;
(c) Authorities. A copy, duly certified by the appropriate
officer of each such Designated Joint Venture of (i) the resolutions or similar
action of such Designated Joint Venture's Board of Directors or similar
governing body authorizing the execution and delivery of the Note of such
Designated Joint Venture and authorizing the borrowings thereunder, (ii) all
documents evidencing other necessary action, and (iii) all approvals or
consents, if any, with respect to such Designated Joint Venture;
(d) Incumbency. A certificate of the appropriate officer of
each such Designated Joint Venture certifying the names of such Designated Joint
Venture's officers authorized to sign the Note of such Designated Joint Venture
and all other documents or certificates to be delivered to the Agent or BAI,
together with the true signatures of such officers;
(e) Designated Joint Venture Certificate. A certificate of an
appropriate officer of each such Designated Joint Venture then borrowing
certifying that all governmental authorizations, consents, approvals and
licenses as may be required under applicable law and regulations for such
Designated Joint Venture to make and perform its Notes and borrow under the
Agreement have been obtained and are in full force and effect;
(f) Certificate. A certificate of the Treasurer of the
Company, as to, among other things, the matters set out in Section 4.3 and 4.4
hereof;
(g) Opinion of Counsel. Such opinions of counsel addressed
to the Agent and all Lenders from counsel to the Company as the Agent may
reasonably request;
(h) Designation Letter. A Designation Letter in the form of
Exhibit E-1 for each Designated Joint Venture borrowing at such time for BAI;
and
(i) Other. Such other documents as the Agent and BAI may
reasonably request.
4.3 No Default. As of the closing date of this Amendment and
at the time of any Loan to a Designated Joint Venture, no Default shall have
occurred and be continuing.
4.4 Warranties. As of the closing date of this Amendment and
at the time of any Loan to a Designated Joint Venture, the warranties in Article
VI of the Agreement and in Section 3 of this Amendment shall be true and correct
as though made on such date, except for such changes as are specifically
permitted under the Agreement.
4.5 Expenses, etc. The Agent shall have received for its own
account all reasonable fees, costs and expenses due and payable pursuant to
Section 10.3 of the Agreement, if then invoiced.
4.6 Bank Approvals. The Agent and BAI shall have obtained all
governmental authorizations, consents, approvals and licenses as may be required
under applicable law and regulations to make Loans to any Designated Joint
Venture then borrowing.
5. GENERAL.
5.1 Payments. In consideration of the Company's guaranty of
all Loans to any Designated Joint Venture, the Company shall be entitled to
receive (subject to receipt by the Agent, on behalf of BAI) prior to the
occurrence of a Default, a portion of each payment of interest on each Loan
other than a Special Rate Loan to a Designated Joint Venture in an amount equal
to the excess, if any, of the amount of interest paid by the applicable
Designated Joint Venture on its Note evidencing Loans other than Special Rate
Loans over the sum of BAI's Interest Component (as defined below) for each day
in the period in respect of which such interest is being paid by such Designated
Joint Venture.
As used herein in this Section 5.1, BAI's Interest Component
means, for any day, the aggregate amount for BAI for all Loans to all Designated
Joint Ventures of the amount of interest that would have accrued on the unpaid
principal amount of such Loans on such day if interest had been calculated at a
rate per annum equal to the sum of (a) in the case of Eurodollar Rate Loans (i)
the Interbank Rate (Reserve Adjusted) determined for an Interest Period
beginning on the date of the applicable Loan under the applicable Note and
ending on the following interest payment date under such Note, and thereafter
for an Interest Period beginning on each interest payment date under such Note
and ending on the following interest payment date under such Note, plus (ii) a
margin of 0.25% and (b) in the case of Reference Rate Loans (i) the Alternate
Reference Rate from time to time in effect beginning on the date of the
applicable Loan under the applicable Note plus (ii) a margin of 0%. Upon the
occurrence of a Default, the Agent and BAI shall have no obligation to make any
payments to the Company pursuant to this Section 5.1.
5.2 Expenses. The Company agrees to pay the Agent upon demand
for all reasonable expenses, including reasonable attorneys' and legal
assistants' fees (which attorneys and paralegals may be employees of the Agent),
incurred by the Agent in connection with the preparation, negotiation and
execution of this Amendment, the Replacement Notes and any document required to
be furnished herewith.
5.3 Law. THIS AMENDMENT AND THE REPLACEMENT NOTES SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF ILLINOIS.
5.4 Successors. This Amendment shall be binding upon the
Company, the Agent and the Lenders and their respective successors and assigns,
and shall inure to the benefit of the Company, the Agent and the Lenders and the
successors and assigns of the Agent and Lenders.
5.5 Confirmation of the Agreement. The Agreement, as
amended hereby, shall remain in full force and effect and is hereby ratified and
confirmed in all respects.
5.6 References to the Agreement. Each reference in the
Agreement to "this Agreement," "hereunder," "hereof," or words of like import,
and each reference to the Agreement in any and all instruments or documents
provided for in the Agreement or delivered or to be delivered thereunder or in
connection therewith, shall, except where the context otherwise requires, be
deemed a reference to the Agreement, as amended hereby.
5.7 Counterparts. This Amendment may be executed by the
parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
5.8 Controlling Document. The parties hereto acknowledge and
agree that the executed English language counterparts of this Amendment and all
schedules and exhibits thereto and of all documents delivered in connection
herewith or therewith shall control in the event of any conflict between the
language or provisions of such counterpart or document and any Russian or other
language translation thereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed at Chicago, Illinois by their respective officers thereunto duly
authorized as of the date first written above.
ANDREW CORPORATION
By: /s/ M.J. Gittelman
-------------------
Title: Treasurer
BANK OF AMERICA ILLINOIS,
as a Lender
By: /s/ Barbara A. Hamel
---------------------
Title: Senior Vice President
BANK OF AMERICA ILLINOIS,
as Agent
By: /s/ David Johanson
---------------------
Title:
ABN AMRO BANK N.V.
By:
Title:
By:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO
By:_____________________________
Title: Senior Vice President
<PAGE>
SCHEDULE I
Schedule of Percentages
A. Loans to Borrower Not a Designated Joint Venture
Adjusted
Lender Percentage Percentage
------------------------ ---------- ----------
Bank of America Illinois 50% 0%
ABN AMRO Bank N.V 25% 50%
First National Bank of Chicago 25% 50%
B. Loans to Designated Joint Venture
Lender Percentage
------------------------
Bank of America Illinois 100%
<PAGE>
SCHEDULE 6.9
Partnerships & Joint Ventures
<PAGE>
CERTIFICATE
I, the undersigned, Treasurer of Andrew Corporation ("Company"), DO
HEREBY CERTIFY that:
1. The representations and warranties contained in the Third Amendment,
dated as of April 8, 1996 ("Amendment") to Credit Agreement dated June 16, 1993
("Agreement") between the Company, the Lenders and Bank of America Illinois, as
agent (terms not otherwise defined herein have the same meaning herein as in the
Amendment) and the Agreement are as true and correct at and as of the date
hereof as through made on and as of the date hereof.
2. No Default has occurred and is continuing, or would result from the
consummation of the Amendment on this date.
3. Except as disclosed by the Company to the Agent and the Lenders
pursuant to Section 6.7:
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding is pending or, to the
knowledge of the Company, threatened against the Company, and
Subsidiary or Designated Entity which might reasonably be expected to
materially adversely affect the Company's consolidated business,
operations, assets, revenues, properties or prospects or which purports
to affect the legality, validity or enforceability of this Agreement,
the Notes or any other Loan Document; and
(ii) no development has occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding
disclosed pursuant to Section 6.7 which might reasonably be expected to
materially adversely affect the consolidated businesses, operations,
assets, revenues, properties or prospects of the Company, its
Subsidiaries and Designated Entities;
4. Neither the Company, any Subsidiary nor Designated Entity are in
material violation of any law or governmental regulation or court order or
decree.
WITNESS my hand as of the 8th day of April 1996.
Treasurer
<PAGE>
EXHIBIT A
REPLACEMENT NOTE
$__________ __________, 19__
FOR VALUE RECEIVED, the undersigned, [BORROWER'S NAME], a ___________
corporation (the "Borrower"), promises to pay to the order of
______________________ (the "Lender") on the Stated Maturity Date, the principal
sum of ___________________ DOLLARS ($__________) or, if less, the aggregate
unpaid principal amount of all Loans (or, if applicable, the Dollar Equivalent
thereof) shown on the schedule attached hereto (and any continuation thereof)
made by the Lender pursuant to that certain Credit Agreement, dated as of June
16, 1993 (together with all amendments and other modifications, if any, from
time to time thereafter made thereto, the "Credit Agreement"), among Andrew
Corporation (the "Company"), certain Subsidiaries of the Company, including the
Borrower, BANK OF AMERICA ILLINOIS, as Agent, and the various financial
institutions (including the Agent) as are, or may from time to time become,
parties thereto.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds to
the account designated by the Agent pursuant to the Credit Agreement.
This Note is a Note referred to in, and evidences Indebtedness incurred
under, the Credit Agreement, to which reference is made for a statement of the
terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the Credit Agreement.
This Note constitutes a renewal and restatement of that certain Note of
the Borrower, dated June 16, 1993, payable to the order of the Lender in the
original principal amount of $__________, (the "Original Note"). The
indebtedness evidenced by the Original Note is continuing indebtedness, and
nothing contained herein shall be deemed to constitute a payment, settlement or
novation of the Original Note.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN CHICAGO, ILLINOIS AND SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
ILLINOIS.
[BORROWER NAME]
By
Title:
<PAGE>
LOANS AND PRINCIPAL PAYMENTS
Amount of Loan Made
---------------------------------------------------------------------
Euro- Euro- Interest
Reference dollar currency Quoted Period(if
Date Rate Rate Rate Rate applicable)
- ---- --------- ----- -------- ---- -----------
Amount of Principal Repaid
--------------------------------------------------
Euro- Euro-
Reference dollar currency Quoted
Rate Rate Rate Rate
--------- ---- -------- ----
Unpaid Principal Balance
---------------------------------------------------
Euro- Euro-
Reference dollar currency Quoted Notation
Rate Rate Rate Rate Total made by
--------- ---- -------- ---- ----- -------
<PAGE>
EXHIBIT A-1
NOTE
$ Chicago, Illinois: April __, 1996
---------------- Due: on Termination Date
ON THE COMMITMENT TERMINATION DATE, the undersigned,
________________________ (the "Borrower"), for value received, hereby promises
to pay to the order of BANK OF AMERICA ILLINOIS, an Illinois banking corporation
having its principal office at 231 South LaSalle Street, Chicago, Illinois 60697
(the "Lender"), the unpaid principal amount of all Loans (as hereinafter
defined) made by the Lender to the Borrower under the terms of this Note. The
aggregate principal amount of all Loans at any one time outstanding hereunder
shall at no time exceed
MILLION AND NO/100 DOLLARS ($ ,000,000.00). The Borrower further promises
to pay to the order of the Lender interest on the unpaid principal amount of the
Loans at the rates and at the times as hereinafter provided. The initial Loan,
all subsequent Loans, all payments made on account of principal and the interest
rate applicable to each Loan shall be endorsed by the Lender on the schedule
attached to this Note or, at the Lender's option, in its records, which schedule
or records shall be rebuttable, presumptive evidence of the subject matter
thereof.
The Borrower hereby appoints Andrew Corporation as its agent under and
for all purposes of this Note and each other document executed by Borrower
pursuant to this Note. The Lender and its agents shall be entitled to rely on
all directions of Andrew Corporation in connection with this Note.
1. Defined Terms. In addition to the terms defined elsewhere in
this Note, the following terms shall have the meanings indicated for purposes of
this Note (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
<PAGE>
"Alternate Reference Rate" means, on any day and with respect
to all Reference Rate Loans, a fluctuating rate per annum (rounded upward to the
next highest 1/8 of 1% if not already an integral multiple of 1/8 of 1%) equal
to the higher of (a) the Reference Rate in effect on such day or (b) a rate per
annum equal to the Market Federal Funds Rate in effect on such day plus 1/2%. If
for any reason the Lender shall have determined (which determination shall be
conclusive in the absence of manifest error) that it is unable to ascertain the
Market Federal Funds Rate for any reason (including, without limitation, the
inability or failure of the Lender to obtain sufficient bids or publications in
accordance with the terms hereof), the Alternate Reference Rate shall be a
fluctuating rate per annum equal to the Reference Rate in effect from time to
time plus until the circumstances giving rise to such inability no longer exist.
For purposes of this Note, each change in the Alternate Reference Rate shall
take effect on the effective date of the change in the Alternate Reference Rate.
"Market Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum for each day during such period equal to (a) the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day by
the Federal Reserve Bank of New York, or, (b) if such rate is not so published
for any day which is a Banking Day, the average of the quotations for such day
on such transactions received by the Lender from three Federal funds brokers of
recognized standing selected by it. In the case of a day which is not a Banking
Day, the Market Federal Funds Rate for such day shall be the Market Federal
Funds Rate for the next preceding Banking Day. For purposes of this Note, each
change in the Alternate Reference Rate due to a change in the Market Federal
Funds Rate shall take effect on the effective date of such change in the Market
Federal Funds Rate. "Reference Rate" means at any time the rate of interest then
most recently announced by the Lender in Chicago, Illinois as its reference
rate. Each change in the interest rate on any Reference Rate Loan due to a
change in the Reference Rate shall take effect on the effective date of the
change in the Reference Rate.
"Andrew Corporation" means Andrew Corporation, a Delaware
corporation and its successors and assigns.
"Authorized Officer" means any officer or employee of Andrew
Corporation designated by the Borrower from time to time in a written schedule,
which schedule shall become effective when received by the Lender.
"Banking Day" means any day which is neither a Saturday nor
Sunday nor legal holiday on which banks are authorized or required to be closed
in Chicago, Illinois and, with respect to Eurodollar Rate Loans, any day on
which dealings in Eurodollars may be carried on by the Lender in the interbank
eurodollar market.
"Commitment" means _____________________________________.
"Dollar" and the sign "$" means lawful money of the United
States of America.
"Eurodollar" means Dollars on deposit in a bank outside the
United States of America, its territories and possessions, which are available
for transfer to and from the United States of America, its territories and
possessions.
<PAGE>
"Eurodollar Rate Loan" means any Loan made and payable in
Dollars bearing interest at all times during an Interest Period applicable to
such Loan, at a fixed rate of interest determined with reference to the
Interbank Rate (Reserve Adjusted).
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System or any successor thereto.
"Interbank Rate (Reserve Adjusted)" means, relative to any
Loan to be made, continued or maintained as, or converted into a Eurodollar Rate
Loan for any Interest Period, a rate per annum (rounded upwards, if necessary,
to the nearest 1/16 of 1%) determined pursuant to the following formula:
Interbank Rate = Interbank Rate
(Reserve Adjusted) 1-Reserve Percentage
"Interest Period" means with respect to any Eurodollar Rate Loan, the one-month,
two-month or three-month period selected by an Authorized Officer pursuant to
Section 2, beginning on (and including) the date on which such Loan is made or
continued as, or converted into a Eurodollar Rate Loan pursuant to Section 3
hereof; provided, however, that
(a) an Authorized Officer shall not be permitted to select
Interest Periods for Eurodollar Rate Loans to be in effect at any one
time which will have expiration dates occurring on more than five (5)
different dates;
(b) Interest Periods commencing on the same date for Loans
comprising part of the same borrowing shall be of the same duration;
(c) if such Interest Period would otherwise end on a day which
is not a Banking Day, such Interest Period shall end on the next
following Banking Day, unless such next following Banking Day is the
first Banking Day of a calendar month, in which case such Interest
Period shall end on the Banking Day next preceding such numerically
corresponding day; and
(d) no Interest Period may end later than date described in
clause (a) of the definition of "Commitment Termination Date". "Reserve
Percentage" means, relative to any Interest Period for Eurodollar Rate Loans,
the reserve percentage (expressed as a decimal) equal to the maximum aggregate
reserve requirements (including all basic, emergency, supplemental, marginal and
other reserves and taking into account any transitional adjustments or other
scheduled changes in reserve requirements) specified under regulations issued
from time to time by the Federal Reserve Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as currently
defined in Regulation D of the Federal Reserve Board, having a term
approximately equal or comparable to such Interest Period. For purposes of this
definition, any Eurodollar Rate Loans hereunder shall be deemed to be
"Eurocurrency Liabilities" as defined in Regulation D.
"Interest Payment Date" means (a) with respect to any
Eurodollar Rate Loan, the last day of the Interest Period for such Eurodollar
Rate Loan and (b) with respect to any Reference Rate Loan, the 25th day of each
March, June, September and December.
"Loan" means a loan by the Lender to the Borrower under this
Note and shall be a Eurodollar Rate Loan or Reference Rate Loan.
"Person" means any natural person, corporation, partnership,
firm, joint venture, limited liability company, association, trust, government,
governmental agency or any other entity, whether acting in an individual,
fiduciary or other capacity.
<PAGE>
"Reference Rate Loan" means a Loan made and payable in Dollars
bearing interest at a fluctuating rate determined by reference to the Alternate
Reference Rate.
"Commitment Termination Date" means the earlier of (a) March
31, 1997 or (b) the date on which any Commitment Termination Event occurs.
"Commitment Termination Event" means:
(a) the occurrence of any Event of Default described in
clauses (A) through (E) of Section 6(a)(iv) with respect to the Borrower or
Andrew Corporation or any condition, occurrence or event described therein
shall, after notice or lapse of time or both, constitute an Event of Default
under such Section; or
(b) the occurrence and continuance of any other Event of
Default and either (i) the declaration of the Loans to be due and payable
pursuant to Section 6, or (ii) in the absence of such declaration, the giving of
notice by Lender, to the Borrower, that the Commitment has been terminated.
2. Borrowing Procedures.
(a) Eurodollar Rate Loans. An Authorized Officer shall give telephonic
notice (to be promptly confirmed in writing) to the Lender of each proposed
Eurodollar Rate Loan by 11:00 A.M., Chicago time, on a day which is at least two
Banking Days prior to the date of such proposed Eurodollar Rate Loan. Each such
notice shall specify (i) the borrowing date, which shall be a Banking Day, (ii)
the amount of such Loan and (iii) the initial Interest Period for such Loan.
Each Eurodollar Rate Loan request shall be in a minimum aggregate amount of
$250,000 and an integral multiple of $250,000.
(b) Reference Rate Loans. An Authorized Officer shall give telephonic
notice (to be promptly confirmed in writing) to the Lender, not later than 11:00
A.M., Chicago time, in the case of a same day borrowing, of each Reference Rate
Loan. Each such notice shall specify (i) the borrowing date, which shall be a
Banking Day, and (ii) the amount of such Loan.
3. Continuation and/or Conversion of Loan. An Authorized Officer may
elect (a) to continue any outstanding Eurodollar Rate Loan from the current
Interest Period, or (b) to convert any outstanding Eurodollar Rate Loan into a
Reference Rate Loan on the last day of the current Interest Period for such
Eurodollar Rate Loan or to convert any outstanding Reference Rate Loan into a
Eurodollar Rate Loan by giving at least two Banking Days' prior telephonic
notice (promptly confirmed in writing) to the Lender in the case of a
continuation or conversion into a Eurodollar Rate Loan and notice on the same
day in the case of any other continuation or conversion. Each such notice shall
specify (i) the effective date of continuation or conversion and (ii) the
Interest Period commencing on such date. Absent notice of continuation or
conversion, each Eurodollar Rate Loan shall automatically convert into a
Reference Rate Loan on the last date of the current Interest Period for such
Eurodollar Rate Loan, unless paid in full on such last day.
4. Interest.
<PAGE>
(a) Eurodollar Rate Loans. The unpaid principal amount of each
Eurodollar Rate Loan shall bear interest to and including the Commitment
Termination Date at a rate per annum equal to the Interbank Rate (Reserve
Adjusted) in effect for the applicable Interest Period, plus (i) ____% on the
outstanding principal amount of such Loans if all Loans are less than or equal
to $___________ and (ii) _____% on the outstanding principal amount of such new
Loans over $_________. Accrued interest on each Eurodollar Rate Loan shall be
payable on each Interest Payment Date and on the Commitment Termination Date.
(b) Reference Rate Advances. The unpaid principal amount of each
Reference Rate Loan shall bear interest prior to the Commitment Termination Date
at a rate per annum equal to the Alternate Reference Rate in effect from time to
time plus (i) ____% on the outstanding principal amount of such Loans if all
Loans are less than or equal to $___________ and (ii) _____% on the outstanding
principal amount of such new Loans over $_________. Accrued interest on each
Reference Rate Loan shall be payable on each Interest Payment Date and on the
Commitment Termination Date.
(c) Interest after the Commitment Termination Date. The Borrower shall
pay to the Lender interest on any amount of principal of any Loan which is not
paid on the Commitment Termination Date, accruing from and including the
Commitment Termination Date to, but not including, the date of payment thereof
in full at a rate per annum equal to the greater of (i) 2% in excess of the rate
applicable to the unpaid principal amount immediately before it becomes due, or
(ii) 10.5% in excess of the Alternate Reference Rate from time to time in
effect.
(d) Method of Calculating Interest. Interest on each Loan shall
be computed on the basis of the actual number of days elapsed in a year
consisting of 360 days.
(e) Cost and Reimbursements.
(i) Eurodollar Rate Lending Unlawful. If Lender shall
determine (which determination shall, upon notice thereof to the Borrower, be
conclusive and binding on the Borrower) that the introduction of or any change
in or in the interpretation of any law makes it unlawful, or any central bank or
other governmental authority asserts that it is unlawful, for Lender to make,
continue or maintain any Loan as, or to convert any Loan into, a Eurodollar Rate
Loan, the obligations of the Lender to make, continue, maintain or convert any
such Loans shall, upon such determination, forthwith be suspended until Lender
shall notify the Borrower that the circumstances causing such suspension no
longer exist, and all Eurodollar Rate Loans shall automatically convert into
Reference Rate Loans at the end of the then current Interest Period with respect
thereto or sooner, if required by such law or assertion.
(ii) Deposits Unavailable. If the Borrower shall have
been notified by the Lender that Lender has determined that
(A) Dollar deposits in the relevant amount and for
the relevant Interest Period are not available to Lender in its relevant market;
or
(B) by reason of circumstances affecting Lender's
relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to Eurodollar Rate
Loans,
<PAGE>
then, upon such notice from the Lender to the Borrower, the obligations
of the Lender under Section 2(a) and Section 3 to make or continue any
Loans as, or to convert any Loans into, Eurodollar Rate Loans shall
forthwith be suspended until the Borrower shall have been notified by
the Lender that the circumstances causing such suspension no longer
exist.
(iii) Increased Eurodollar Rate Loan Costs, etc. The Borrower
agrees to reimburse Lender for any increase in the cost to Lender of,
or any reduction in the amount of any sum receivable by Lender in
respect of, making, continuing or maintaining (or of its obligation to
make, continue or maintain) any Loans as, or of converting (or of its
obligation to convert) any Loans into Eurodollar Rate Loans. Lender
shall promptly notify Borrower in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor
and the additional amount required fully to compensate Lender for such
increased cost or reduced amount. Such additional amounts shall be
payable by the Borrower directly to Lender within five days of its
receipt of such notice, and such notice shall, in the absence of
manifest error, be conclusive and binding on the Borrower.
(iv) Increased Capital Costs With Respect to Commitment. If
any change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or not having the
force of law) of any court, central bank, regulator or other
governmental authority affects or would affect the amount of capital
required or expected to be maintained by Lender or any Person
controlling Lender, and Lender determines (in its sole and absolute
discretion) that the rate of return on its or such controlling Person's
capital as a consequence of its Commitment to make Loans or the Loans
made by Lender is reduced to a level below that which Lender or such
controlling Person could have achieved but for the occurrence of any
such circumstance, then, in any such case upon notice from time to time
by Lender to the Borrower, the Borrower agrees that it shall
immediately pay directly to Lender additional amounts sufficient to
compensate Lender or such controlling Person for such reduction in rate
of return at the time suffered or incurred. A statement of Lender as to
any such additional amount or amounts (including calculations thereof
in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrower. In determining such amount,
Lender may use any reasonable method of averaging and attribution that
it (in its sole and absolute discretion) shall deem applicable.
(v) Funding Losses. In the event Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by
Lender to make, continue or maintain any portion of the principal
amount of any Loan as, or to convert any portion of the principal
amount of any Loan into, a Eurodollar Rate Loan) as a result of
(A) any conversion or repayment or prepayment of the
principal amount of any Eurodollar Rate Loans on a date other
than the scheduled last day of the Interest Period applicable
thereto;
(B) any Loans not being made as Eurodollar Rate Loans
in accordance with the borrowing request therefor; or
<PAGE>
(C) any Loans not being continued as, or converted
into, Eurodollar Rate Loans in accordance with the
continuation/ conversion notice therefor,
then, upon the written notice of Lender to the Borrower, the Borrower
agrees that it shall, within five days of the Borrower's receipt
thereof, pay directly to Lender such amount as will (in the reasonable
determination of Lender) reimburse Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable
detail) shall, in the absence of manifest error, be conclusive and
binding on the Borrower.
(vi) Taxes. All payments by Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be
made free and clear of and without deduction for any present or future
income, excise, stamp or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any
taxing authority, but excluding franchise taxes and taxes imposed on or
measured by Lender's net income or receipts (such non-excluded items
being called "Taxes"). In the event that any withholding or deduction
from any payment to be made by Borrower hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or
regulation, then the Borrower will:
(A) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(B) promptly forward to the Lender an official
receipt or other documentation satisfactory to the Lender
evidencing such payment to such authority; and
(C) pay to the Lender such additional amount or
amounts as is necessary to ensure that the net amount actually
received by Lender will equal the full amount Lender would
have received had no such withholding or deduction been
required; provided that, Lender may, in its sole and absolute
discretion, and subject to the other requirements of this
sentence, return to Borrower an amount equal to the amount
paid by Borrower pursuant to clause (a) in respect of amounts
paid by Borrower under this Note for the account of Lender.
Moreover, if any Taxes are directly asserted against the Lender with
respect to any payment received by the Lender hereunder, the Lender may pay such
Taxes and the Borrower agrees that it will promptly pay such additional amounts
(including any penalties, interest or expenses) as is necessary in order that
the net amount received by Lender after the payment of such Taxes (including any
Taxes on such additional amount) shall equal the amount Lender would have
received had not such Taxes been asserted.
If Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Lender, the required receipts or other
required documentary evidence, the Borrower agrees to indemnify the Lender for
any incremental Taxes, interest or penalties that may become payable by any
Lender as a result of any such failure. For purposes of this Section 4(e)(vi), a
distribution hereunder by the Lender to or for the account of the Lender shall
be deemed a payment by the Borrower.
<PAGE>
5. Payments and Prepayments.
(a) Place of Payment. All payments hereunder shall be in Dollars and
shall be made without set-off or counterclaim and shall be made to the Lender,
in immediately available funds prior to 12:30 P.M., Chicago time, on the date
due at the Lender's office at 231 South LaSalle Street, Chicago, Illinois 60697,
or at such other place as may be designated by the Lender to the Borrower in
writing. Any payments received after such time shall be deemed received on the
next Banking Day. Subject to the definition of "Interest Period, " whenever any
payment to be made hereunder shall be stated to be due on a date other than a
Banking Day, such payment may be made on the next succeeding Banking Day, and
such extension of time shall be included in the calculation of interest. The
Lender may, but shall not be obligated to, charge any account of Andrew
Corporation for the payment when due of all amounts payable by the Borrower
hereunder.
(b) Prepayments. The Borrower may from time to time, upon at least two
Banking Days' prior written or telephonic notice from an Authorized Officer
received by the Lender, prepay the principal of any Loan in whole or in part in
Dollars; provided, however, that any partial prepayment of principal shall be in
a minimum amount of $250,000 or an integral multiple thereof, and provided,
further that any prepayment of principal shall be subject to the indemnification
provisions of Sections 4(e) and 7(b), but shall otherwise be without any premium
or penalty. An Authorized Officer shall promptly confirm all telephonic notices
of prepayment in writing.
6. Events of Default.
(a) Listing of Events of Default. Each of the following events or
\occurrences described in this Section 6(a) shall constitute an "Event of
Default":
(i) Non-Payment of Obligations. Borrower shall default in the
payment or prepayment when due of any principal on any Loan, or
Borrower shall default (and such default shall continue unremedied for
a period of five days) in the payment when due of any interest or of
any other obligation; or
(ii) Breach of Warranty. Any representation or warranty of the
Borrower made or deemed to be made hereunder or in any other document
executed by it or any other writing or certificate furnished by or on
behalf of the Borrower to Lender for the purposes of or in connection
with this Note or any such other loan document is or shall be incorrect
when made or deemed made in any material respect; or
(iii) Judgments. Any judgments or orders for the payment
of money aggregating in excess of $1,000,000 shall be rendered against
the Borrower or against any property or assets of the Borrower and
either
(A) enforcement proceedings shall have been commenced
by any creditor upon such judgments or orders; or
(B) there shall be any period of 60 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
(iv) Bankruptcy, Insolvency, etc. The Borrower or Andrew
Corporation shall
<PAGE>
(A) become insolvent or generally fail to pay, or
admit in writing its inability or unwillingness to pay, debts
as they become due; or
(B) apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator or other
custodian for Borrower or Andrew Corporation or any property
thereof, or make a general assignment for the benefit of
creditors; or
(C) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for
Borrower or Andrew Corporation or for a substantial part of
the property thereof, and such trustee, receiver, sequestrator
or other custodian shall not be discharged within 60 days,
provided that Borrower and Andrew Corporation hereby expressly
authorize the Lender to appear in any court conducting any
relevant proceeding during such 60-day period to preserve,
protect and defend their rights under the Note and other loan
documents; or
(D) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, in respect
of Borrower or Andrew Corporation and, if any such case or
proceeding is not commenced by Borrower or Andrew Corporation,
such case or proceeding shall be consented to or acquiesced in
by Borrower or Andrew Corporation or shall result in the entry
of an order for relief or shall remain for 60 days
undismissed, provided that Borrower and Andrew Corporation
hereby expressly authorize the Lender to appear in any court
conducting any such case or proceeding during such 60-day
period to preserve, protect and defend their rights under the
Note and loan documents; or
(E) take any action authorizing, or in furtherance
of, any of the foregoing.
(b) Action if Bankruptcy. If any Event of Default described in clauses
(A) through (E) of Section 6(a)(iv) shall occur with respect to the Borrower or
Andrew Corporation, the Commitment (if not theretofore terminated) shall
automatically terminate and the outstanding principal amount of all outstanding
Loans and all other obligations shall automatically be and become immediately
due and payable, without notice or demand.
(c) Action if Other Event of Default. If any Event of Default (other
than any Event of Default described in clauses (A) through (E) of Section
6(a)(iv) with respect to the Borrower shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Lender, shall by notice to
Borrower declare all or any portion of the outstanding principal amount of the
Loans and other obligations to be due and payable, and/or the Commitment (if not
theretofore terminated) to be terminated whereupon the full unpaid amount of
such Loans and other obligations which shall be so declared due and payable
shall be and become immediately due and payable, without further notice, demand
or presentment, and/or, as the case may be, the Commitment shall terminate.
7. General.
(a) Credit of Account. The Lender shall credit the proceeds of each
Loan to Borrower in accordance with the instruction provided to the Lender by
Andrew in writing.
<PAGE>
(b) Authorization and Indemnity. The Borrower hereby authorizes the
Lender to rely upon the instructions of any Person identifying himself or
herself as an Authorized Officer, and the Borrower shall be bound thereby in the
same manner as if such Person were actually an Authorized Officer. Andrew
Corporation and the Borrower hereby agree to indemnify the Lender and hold it
harmless from any and all claims, damages, liabilities, losses, costs and
expenses (including, without limitation, reasonable fees of attorneys and
paralegals for the Lender (who may be employees of the Lender) and other legal
expenses) which may arise or be created by the acceptance of instructions for
making Loans or disbursing the proceeds thereof, and to pay all legal and other
costs and expenses (including, without limitation, reasonable fees of attorneys
and paralegals for the Lender (who may be employees of the Lender) and costs of
collection) incurred by the Lender in obtaining payment of the amounts payable
by the Borrower hereunder.
(c) Warranties and Representations. The Borrower warrants and
represents to the Lender that (i) the execution and delivery of this Note and
the performance by the Borrower of its obligations hereunder are within the
Borrower's powers and have been duly authorized by all necessary action on the
Borrower's part, (ii) this Note is the Borrower's legal, valid and binding
obligation, enforceable in accordance with its terms, and (iii) the making and
performance of this Note do not and will not contravene or conflict with the
Borrower's organizational documents or violate or constitute a default under any
law, any presently existing requirement or restriction imposed by judicial,
arbitral or other governmental instrumentality, or any agreement, instrument or
indenture by which the Borrower is bound.
(d) Interpretation of Note. A Section is, unless otherwise stated, a
reference to a section hereof. Section captions used in this Note are for
convenience only, and shall not affect the construction of this Note. The words
"hereof", "herein", "hereunder" and words of similar purport when used in this
Note shall refer to this Note as a whole and not to any particular provision of
this Note.
(e) Severability. Wherever possible, each provision of this Note shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note shall be prohibited by or invalid under such
law, such provision shall be ineffective to the extent of such prohibition or
inability, without invalidating the remainder of such provision or the remaining
provision of this Note.
(f) Governing Law. This Note shall be governed by, and construed
in accordance with, the internal laws and decisions (as opposed to conflict of
law provisions) of the State of Illinois.
(g) Controlling Document. The Borrower acknowledges and agrees that the
original executed English language version of this Note shall control in the
event of any conflict between the provisions or language of this Note and any
Russian or other language translation of this Note.
[DESIGNATED JOINT VENTURE]
Address:
2 Ostrovskyi Square By:______________________
St. Petersburg, Russia 191011 Title:___________________
Accepted and Approved:
ANDREW CORPORATION
By:________________________
Title:_____________________
<PAGE>
Schedule attached to Promissory Note dated April __, 1996 of [DESIGNATED JOINT
VENTURE] payable to the order of BANK OF AMERICA ILLINOIS.
ADVANCES AND PRINCIPAL PAYMENTS
Amount of Unpaid
Amount of Principal Principal Notation
Date Loan Made Rate Maturity Date Paid Balance Made By
- ---- --------- ---- ------------- --------- --------- --------
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
The aggregate unpaid principal amount shown on this schedule shall be rebuttable
presumptive evidence of the principal amount owing and unpaid on this Note. The
failure to record the date and amount of any Loan on this Schedule shall not,
however, limit or otherwise affect the obligations of the Borrower under this
Note to repay the principal amount of the Loans together with all interest
accruing thereon.
<PAGE>
EXHIBIT E-1
Designation Letter
[Date]
Bank of America Illinois, as Agent
231 South LaSalle Street
Chicago, Illinois 60697
Attention:
Ladies and Gentlemen:
Reference is hereby made to a Credit Agreement dated as of June 16,
1993 (together with all amendments, if any, from time to time made thereto, the
"Credit Agreement") among Andrew Corporation, a Delaware corporation (the
"Company"), certain subsidiaries of the Company, certain financial institutions
as Lenders and Bank of America Illinois (the "Agent"). Unless otherwise defined
herein or the context otherwise requires, terms used herein have the meanings
provided in the Credit Agreement.
The Company hereby certifies that ______________, a ___________
_______________ is a Designated Joint Venture of the Company. The Company hereby
designates _________________ as a Designated Joint Venture as of the date of
this letter and hereby requests that only BAI make Loans to such Designated
Joint Venture pursuant to the terms and conditions of the Credit Agreement.
Very truly yours,
ANDREW CORPORATION
By:________________________________
Title:_____________________________
(Authorized Officer)
EXHIBIT 10(d)d
GUARANTY
THIS GUARANTY (this "Guaranty"), dated as of April 8, 1996, made by
ANDREW CORPORATION, a Delaware corporation (the "Guarantor"), in favor of each
of the Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of June 16, 1993, as
amended by a First Amendment thereto dated August 15, 1994, a Second Amendment
thereto dated September 29, 1995 and a Third Amendment thereto dated April 8,
1996 (the "Third Amendment") (together with all amendments and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among the Guarantor, a Delaware corporation, certain Subsidiaries
of the Guarantor, the various commercial lending institutions (individually a
"Lender" and collectively the "Lenders") as are, or may from time to time
become, parties thereto and Bank of America Illinois, as agent (together with
any successors(s) thereto in such capacity, the "Agent") for the Lenders, the
Lenders have extended Commitments to make Loans to the Borrowers; and
WHEREAS, as a condition precedent to BAI making the initial Loans under
the Credit Agreement to a Designated Joint Venture, the Guarantor is required to
execute and deliver this Guaranty; and
WHEREAS, the Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to execute this
Guaranty inasmuch as the Guarantor will derive substantial direct and indirect
benefits from the Loans made from time to time to a Designated Subsidiary by the
Lenders and BAI only to the Designated Joint Ventures pursuant to the Credit
Agreement;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, and in order to induce the Lenders to make Loans to a
Designated Subsidiary and BAI only to the Designated Joint Ventures pursuant to
the Credit Agreement, the Guarantor agrees, for the benefit of each Lender
Party, as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION I.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Agent" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
"Designated Entity" means those subsidiaries and joint ventures of the
Guarantor identified as a Designated Entity in the Credit Agreement or in a
Designation Letter delivered to the Agent, and in the case of Designated
Subsidiaries, approved by the Lenders and the Agent, and in the case of
Designated Joint Ventures, approved by BAI and the Agent, from time to time.
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"Lender" is defined in the first recital.
"Lender Party" means, as the context may require, any Lender or the
Agent and each of its respective successors, transferees and assigns.
"Lenders" is defined in the first recital.
"Taxes" is defined in clause (a) of Section 2.8.
"U.C.C." means the Uniform Commercial Code as in effect in the State of
Illinois.
SECTION I.2. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Guaranty, including
its preamble and recitals, have the meanings provided in the Credit Agreement.
SECTION I.3. U.C.C. Definitions. Unless otherwise defined herein or
the context otherwise requires, terms for which meanings are provided in the
U.C.C. as in effect in the State of Illinois are used in this Guaranty,
including its preamble and recitals, with such meanings.
<PAGE>
ARTICLE II
GUARANTY PROVISIONS
SECTION II.1. Guaranty. The Guarantor hereby absolutely,
unconditionally and irrevocably
(a) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise, of all Obligations of any Designated Entity
(including a Designated Joint Venture) now or hereafter existing under
the Credit Agreement, the Notes and each other Loan Document to which
any Designated Entity is or may become a party, whether for principal,
interest, fees, expenses or otherwise (including, without limitation,
all such amounts which would become due but for the operation of the
automatic stay under Section 362(a) of the United States Bankruptcy
Code, 11 U.S.C. '362(a), and the operation of Sections 502(b) and
506(b) of the United States Bankruptcy Code, 11 U.S.C. '502(b) and
'506(b)), and
(b) indemnifies and holds harmless each Lender Party and each
holder of any Note for any and all costs and expenses (including
reasonable attorney's fees (who may be employees of the Lender Party)
and expenses) incurred by such Lender Party or such holder, as the case
may be, in enforcing any rights under this Guaranty.
This Guaranty constitutes a guaranty of payment when due and not of collection,
and the Guarantor specifically agrees that it shall not be necessary or required
that any Lender Party or any holder of any Note exercise any right, assert any
claim or demand or enforce any remedy whatsoever against any Designated Entity
(or any other Person) before or as a condition to the obligations of the
Guarantor hereunder.
SECTION II.2. Acceleration of Guaranty. The Guarantor agrees that, in
the event of the dissolution or insolvency of any Designated Entity or the
Guarantor, or the inability or failure of any Designated Entity or the Guarantor
to pay debts as they become due, or an assignment by any Designated Entity or
the Guarantor for the benefit of creditors, or the commencement of any case or
proceeding in respect of any Designated Entity or the Guarantor under
bankruptcy, insolvency or similar laws, and if such event shall occur at a time
when any of the Obligations of any Designated Entity may not then be due and
payable, the Guarantor will pay to the Lenders forthwith the full amount which
would be payable hereunder by the Guarantor if all such Obligations were then
due and payable.
<PAGE>
SECTION II.3. Guarantor Absolute, etc. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of any
Designated Entity have been finally paid in full in cash, all obligations of the
Guarantor hereunder shall have been finally paid in full in cash and all
Commitments (including the Designated Joint Venture Commitment) shall have
terminated. The Guarantor guarantees that the Obligations of any Designated
Entity will be paid strictly in accordance with the terms of the Credit
Agreement, the Notes, and each other Loan Document under which they arise,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of any Lender Party or
any holder of any Note with respect thereto. The liability of the Guarantor
under this Guaranty shall be absolute, unconditional and irrevocable
irrespective of:
(a) any lack of validity, legality or enforceability of the
Credit Agreement, any Note or any other Loan Document;
(b) the failure of any Lender Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or remedy
against any Designated Entity or any other Person (including any other
guarantor) under the provisions of the Credit Agreement, any Note, any
other Loan Document or otherwise, or (ii) to exercise any right or
remedy against any other guarantor of, or collateral securing, any
Obligations of any Designated Entity;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of any Designated
Entity, or any other extension, compromise or renewal of any Obligation
of any Designated Entity;
(d) any reduction, limitation, impairment or termination of
any Obligations of any Designated Entity for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and the Guarantor hereby waives any right to
or claim of) any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or any
other event or occurrence affecting, any Obligations of any Designated
Entity or otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
the Credit Agreement, any Note or any other Loan Document;
<PAGE>
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Lender Party or any holder of any Note securing
any of the Obligations of any Designated Entity; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any
Designated Entity, any surety or any guarantor.
SECTION II.4. Reinstatement, etc. The Guarantor agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by any Lender Party or any holder of any
Note, upon the insolvency, bankruptcy or reorganization of any Designated Entity
or otherwise, all as though such payment had not been made.
SECTION II.5. Waiver, etc. The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of any Designated Entity and this Guaranty and any requirement that
the Agent, any other Lender Party or any holder of any Note protect, secure,
perfect or insure any security interest or Lien, or any property subject
thereto, or exhaust any right or take any action against any Designated Entity
or any other Person (including any other guarantor) or entity or any collateral
securing the Obligations of any Designated Entity.
SECTION II.6. Subrogation. The Guarantor will not exercise any rights
which it may acquire by reason of any payment made hereunder, whether by way of
rights of subrogation, reimbursement or otherwise, until the prior payment, in
full and in cash, of all Obligations of the Designated Entity. Any amount paid
to the Guarantor on account of any payment made hereunder prior to the payment
in full of all Obligations of the Designated Entity shall be held in trust for
the benefit of the Lender Parties and each holder of a Note and shall
immediately be paid to the Agent and credited and applied against the
Obligations of the Designated Entity, whether matured or unmatured, in
accordance with the terms of the Credit Agreement; provided, however, that if
a. the Guarantor has made payment to the Lender Parties and
each holder of a Note of all or any part of the Obligations of the Designated
Entity, and
<PAGE>
b. all Obligations of the Borrower and each other Obligor
have been paid in full and all Commitments have been permanently terminated,
each Lender Party and each holder of a Note agrees that, at the Guarantor's
request, the Agent, on behalf of the Lender Parties and the holders of the
Notes, will execute and deliver to the Guarantor appropriate documents (without
recourse and without representation or warranty) necessary to evidence the
transfer by subrogation to the Guarantor of an interest in the Obligations of
the Designated Entity resulting from such payment by the Guarantor. In
furtherance of the foregoing, for so long as any Obligations or Commitments
remain outstanding, the Guarantor shall refrain from taking any action or
commencing any proceeding against the Designated Entity (or its successors or
assigns, whether in connection with a bankruptcy proceeding or otherwise) to
recover any amounts in respect of payments made under this Guaranty to any
Lender Party or any holder of a Note.
SECTION II.7. Successors, Transferees and Assigns: Transfers of Notes,
etc. This Guaranty shall (a) be binding upon the Guarantor, and its successors,
transferees and assigns; and (b) inure to the benefit of and be enforceable by
the Agent and each other Lender Party. Without limiting the generality of the
foregoing clause (b), any Lender may assign or otherwise transfer (in whole or
in part) any Note or Loan held by it to any other Person or entity, and such
other Person or entity shall thereupon become vested with all rights and
benefits in respect thereof granted to such Lender under any Loan Document
(including this Guaranty) or otherwise, subject, however, to any contrary
provisions in such assignment or transfer, and to the provisions of Section
10.11 and Article IX of the Credit Agreement.
SECTION II.8. Payments Free and Clear of Taxes, etc. The Guarantor
hereby agrees that:
(a) All payments by the Guarantor hereunder shall be made in
accordance with Section 4.7 of the Credit Agreement free and clear of
and without deduction for any present or future income, excise, stamp
or franchise taxes and other taxes, fees, duties, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by any
Lender Party's net income or receipts (other than any taxes payable by
BAI on the interest received and remitted to the Guarantor pursuant to
Section 5.1 of the Third Amendment) (such non-excluded items being
called "Taxes"). In the event that any withholding or deduction from
any payment to be made by the Guarantor hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or
regulation, then the Guarantor will
<PAGE>
(i) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the applicable Lender Party
an official receipt or other documentation satisfactory to
such Lender Party evidencing such payment to such authority;
and
(iii) pay to the applicable Lender Party such
additional amount or amounts as is necessary to ensure that
the net amount actually received by such Lender Party will
equal the full amount such Lender Party would have received
had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against any Lender Party with
respect to any payment received by such Lender Party hereunder or relating to
Section 5.1 of the Third Amendment, such Lender Party may pay such Taxes and the
Guarantor will promptly pay such additional amounts (including any penalties,
interest or expenses) as is necessary in order that the net amount received by
such Lender Party after the payment of such Taxes (including any Taxes on such
additional amount) shall equal the amount such Lender Party would have received
had no such Taxes been asserted.
(b) If the Guarantor fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to any Lender Party the
required receipts or other required documentary evidence, the Guarantor
shall indemnify each Lender Party for any incremental Taxes, interest
or penalties that may become payable by such Lender Party as a result
of any such failure.
(c) Without prejudice to the survival of any other agreement
of the Guarantor hereunder, the agreements and obligations of the
Guarantor contained in this Section 2.8 shall survive the payment in
full of the principal of and interest on the Loans.
SECTION II.9. Currency Protection. The Guarantor agrees that if and to
the extent that the Obligations are payable in any currency or currencies other
than the Currency in which such Obligations were created or denominated (the
"Designated Currency"), such aggregate amount of the Designated Currency shall
be increased, to the extent necessary to avoid any loss to the Lender Parties,
on account of any change or changes in the value of such other currency or
currencies compared to the Designated Currency at any time or times between the
date hereof and the date or dates of payment of the Obligations by the
Guarantor.
<PAGE>
SECTION II.10. Judgments. If the Guarantor fails to fulfill its
obligations as required by this guaranty, and suit is brought thereunder in any
court within the United States, then with respect to any of the Obligations
payable in a currency other than United States Dollars and for the purpose of
determining the amount of the judgment in United States Dollars, the applicable
rate of exchange shall be that at which Bank of America Illinois sells such
other currency in Chicago, in exchange for United States Dollars, for cable
transfer to the place where such Obligation was payable by the Designated
Entity. Such selling rate shall be that which is in effect on the Chicago
business day on which judgment is given against the Guarantor, or if such day is
not a business day in Chicago, then on the Chicago business day next preceding
that on which judgment is given against the Guarantor. The Guarantor agrees that
its obligation pursuant to this paragraph shall, notwithstanding any U.S. Dollar
judgment, be discharged only to the extent that following receipt by the Agent,
for the benefit of the Lender Parties or BAI, as applicable, of any sum adjudged
to be due hereunder, the Agent is able in accordance with normal banking
procedure to purchase such other currency with the amount of U.S. Dollars so
adjudged to be due. The Agent shall endeavor to purchase such other currency on
the business day following receipt of payment of the U.S. Dollar judgment, but
if the other currency so purchased is less than the amount originally due to the
Lender Parties in such currency, the Guarantor agrees as a separate obligation
and notwithstanding any such judgment to indemnify the Agent and the Lender
Parties against such loss.
SECTION II.11. Information Concerning Designated Entities; No Reliance
on Representations by Lenders. The Guarantor hereby warrants to the Lenders that
the Guarantor now has and will continue to have independent means of obtaining
information concerning the affairs, financial conditions and business of each
Designated Entity. No Lender shall have any duty or responsibility to provide
the Guarantor with any credit or other information concerning the affairs,
financial condition or business of any Designated Entity which may come into
such Lender's possession. The Guarantor has executed and delivered this guaranty
without reliance upon any representation by any Lender with respect to (a) the
due execution, validity, effectiveness or enforceability of any instrument,
document or agreement evidencing or relating to any of the Obligations or any
Loan, or other financial accommodation made or granted to any Designated Entity;
(b) the validity, genuineness, enforceability, existence, value or sufficiency
of any property securing any of the Obligations or the creation, perfection or
priority of any lien or security interest in such property; or (c) the
existence, number, financial condition or creditworthiness of other guarantors
or sureties with respect to any of the Obligations.
SECTION II.12. IndemnificationII.12. Indemnification. In consideration
of the execution and delivery of the Agreement by each Lender and the extension
of the Commitments, the Guarantor hereby indemnifies, exonerates and holds the
Agent and each Lender and each of their respective officers, directors,
employees and agents (collectively, the "Indemnified Parties") free and harmless
from and against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable attorneys' fees
and disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
<PAGE>
(a) any transaction or activity financed or to be financed in
whole or in part, directly or indirectly, with the proceeds of any Loan
to a Designated Entity;
(b) the entering into and performance of the Agreement and
any other Loan Document by any of the Indemnified Parties; or
(c) any investigation, litigation or proceeding related to
the acquisition of a permit or license to borrow hard currency in
Russia or elsewhere;
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Guarantor hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
The obligations of the Guarantor under this Section 10.12 shall
survive any termination of this Guaranty, the payment in full of all Obligations
and the termination of all Commitments.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION III.1. Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof.
SECTION III.2. Binding on Successors, Transferees and Assigns;
Assignment. In addition to, and not in limitation of, Section 2.7, this Guaranty
shall be binding upon the Guarantor and its successors, transferees and assigns
and shall inure to the benefit of and be enforceable by each Lender Party and
each holder of a Note and their respective successors, transferees and assigns
(to the full extent provided pursuant to Section 2.7); provided, however, that
the Guarantor may not assign any of its obligations hereunder without the prior
written consent of the Agent and the Required Lenders.
SECTION III.3. Amendments, etc. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by the Guarantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Agent, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
<PAGE>
SECTION III.4. Addresses for Notices to the Guarantor. All notices and
other communications hereunder to the Guarantor shall be in writing (including
facsimile communication) and mailed or faxed or delivered to it, addressed to it
at the address or fax number set forth below its signature hereto or at such
other address as shall be designated by the Guarantor in a written notice to the
Agent at the address specified in the Credit Agreement complying as to delivery
with the terms of this Section. All such notices and other communications shall,
when mailed or faxed, respectively, be effective when deposited in the mails or
faxed, respectively, addressed as aforesaid.
SECTION III.5. No Waiver; Remedies. In addition to, and not in
limitation of, Section 2.3 and Section 2.5, no failure on the part of any Lender
Party or any holder of a Note to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION III.6. Section Captions. Section captions used in this
Guaranty are for convenience of reference only, and shall not affect the
construction of this Guaranty.
SECTION III.7. Setoff. In addition to, and not in limitation of, any
rights of any Lender Party or any holder of a Note under applicable law, each
Lender Party and each such holder shall, upon the occurrence of any Default,
have the right to appropriate and apply to the payment of the obligations of the
Guarantor owing to it hereunder, whether or not then due, (i) any and all
balances, credits, deposits, accounts or moneys of the Guarantor then or
thereafter maintained with such Lender Party or such holder, (ii) any and all
property of every kind or description of or in the name of the Guarantor now or
hereafter, for any reason or purpose whatsoever, in the possession or control
of, or in transit to, such Lender Party, such holder or any agent or bailee for
such Lender Party or such holder or (iii) any payments owing from any Lender
Party to Guarantor; provided, however, that any such appropriation and
application shall be subject to the provisions of Section 4.8 of the Credit
Agreement.
<PAGE>
SECTION III.8. Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION III.9. Governing Law, Entire Agreement, etc. THIS GUARANTY
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF ILLINOIS. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE
ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
SECTION III.10. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES OR THE GUARANTOR SHALL BE
BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY MAY BE
BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
PROPERTY MAY BE FOUND. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE GUARANTOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. THE
GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT THE GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE GUARANTOR
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
GUARANTY AND THE OTHER LOAN DOCUMENTS.
SECTION III.11. Waiver of Jury Trial. THE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES OR THE
GUARANTOR. THE GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO THE CREDIT AGREEMENT.
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
ANDREW CORPORATION
By: /s/ M. J. Gittelman
Title: Treasurer
Address: 10500 West 153rd Street
Orland Park, IL 60462
Attention: Mr. Jeffrey Gittelman
Telecopy: 708-349-5287
EXHIBIT 10(d)e
REPLACEMENT NOTE
Chicago, Illinois: April 8, 1996
Due: Stated Maturity Date
$18,750,000
FOR VALUE RECEIVED, the undersigned, ANDREW CORPORATION, a Delaware
corporation (the "Borrower"), promises to pay to the order of ABN AMRO Bank N.V.
(the "Lender") on the Stated Maturity Date, the principal sum of EIGHTEEN
MILLION SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($18,750,000) or, if less, the
aggregate unpaid principal amount of all Loans (or, if applicable, the Dollar
Equivalent thereof) shown on the schedule attached hereto (and any continuation
thereof) made by the Lender pursuant to that certain Credit Agreement, dated as
of June 16, 1993 (together with all amendments and other modifications, if any,
from time to time thereafter made thereto, the "Credit Agreement"), among Andrew
Corporation (the "Company"), certain Subsidiaries of the Company, including the
Borrower, BANK OF AMERICA ILLINOIS, as Agent, and the various financial
institutions (including the Agent) as are, or may from time to time become,
parties thereto.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds to
the account designated by the Agent pursuant to the Credit Agreement.
This Note is a Note referred to in, and evidences Indebtedness incurred
under, the Credit Agreement, to which reference is made for a statement of the
terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the Credit Agreement.
<PAGE>
This Note constitutes a renewal and restatement of that certain Note of
the Borrower, dated June 16, 1993, payable to the order of the Lender in the
original principal amount of $12,500,000 (the "Original Note"). The indebtedness
evidenced by the Original Note is constituting indebtedness, and nothing
contained herein shall be deemed to constitute a payment, settlement or novation
of the Original Note.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice dishonor.
THIS NOTE HAS BEEN DELIVERED IN CHICAGO, ILLINOIS AND SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
ILLINOIS.
ANDREW CORPORATION
By /s/ M. J. Gittelman
Title: Treasurer
<TABLE>
EXHIBIT 11
ANDREW CORPORATION
COMPUTATION OF EARNINGS PER SHARE
(In thousands, except per share amounts)
<CAPTION>
Three Months Ended Nine Months Ended
June 30 June 30
---------------- ----------------
1996 1995 1996 1995
------- ------- ------- -------
<S> <C> <C> <C> <C>
PRIMARY EARNINGS PER SHARE
Average shares outstanding 60,189 59,581 60,120 59,335
Net effect of dilutive stock options--
based on the treasury stock method
using average market price 1,062 1,050 796 882
======= ======= ======= =======
Total 61,251 60,631 60,916 60,217
======= ======= ======= =======
Net income $24,007 $18,960 $59,210 $45,043
======= ======= ======= =======
Per share amount $ 0.39 $ 0.31 $ 0.97 $ 0.75
======= ======= ======= =======
FULLY DILUTED EARNINGS PER SHARE
Average shares outstanding 60,189 59,581 60,120 59,335
Net effect of dilutive stock options--
based on the treasury stock method
using quarter end market price 1,128 1,142 1,128 1,142
======= ======= ======= =======
Total 61,317 60,723 61,248 60,477
======= ======= ======= =======
Net income $24,007 $18,960 $59,210 $45,043
======= ======= ======= =======
Per share amount $ 0.39 $ 0.31 $ 0.97 $ 0.74
======= ======= ======= =======
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1996
<PERIOD-END> JUN-30-1996
<CASH> 22,903
<SECURITIES> 0
<RECEIVABLES> 165,387
<ALLOWANCES> 3,411
<INVENTORY> 165,025
<CURRENT-ASSETS> 356,049
<PP&E> 319,972
<DEPRECIATION> 193,062
<TOTAL-ASSETS> 580,207
<CURRENT-LIABILITIES> 102,630
<BONDS> 45,013
0
0
<COMMON> 685
<OTHER-SE> 417,513
<TOTAL-LIABILITY-AND-EQUITY> 580,207
<SALES> 558,292
<TOTAL-REVENUES> 558,292
<CGS> 328,585
<TOTAL-COSTS> 328,585
<OTHER-EXPENSES> 133,139
<LOSS-PROVISION> 875
<INTEREST-EXPENSE> 4,211
<INCOME-PRETAX> 92,519
<INCOME-TAX> 33,309
<INCOME-CONTINUING> 59,210
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 59,210
<EPS-PRIMARY> 0.97
<EPS-DILUTED> 0.97
<FN>
All per share amounts in this exhibit have been restated to reflect a
three-for-two stock split to stockholders of record on February 21, 1996.
</FN>
</TABLE>
