Exhibit 10.1
EIGHTH AMENDMENT AGREEMENT
EIGHTH AMENDMENT AGREEMENT (this "Amendment"), dated as of March 21, 2006,
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by and among AEROFLEX INCORPORATED (f/k/a ARX, Inc., "Aeroflex"), AEROFLEX
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PLAINVIEW, INC. (f/k/a AEROFLEX LABORATORIES INCORPORATED), AEROFLEX POWELL,
INC. (f/k/a AEROFLEX LINTEK CORP.), AEROFLEX SYSTEMS CORP., AEROFLEX
BLOOMINGDALE, INC., AEROFLEX COLORADO SPRINGS, INC. (f/k/a AEROFLEX UTMC
MICROELECTRONIC SYSTEMS INC.), IFR SYSTEMS, INC., AEROFLEX WITCHITA, INC. (f/k/a
IFR AMERICAS, INC.), AEROFLEX MICROELECTRONIC SOLUTIONS, INC. (f/k/a AEROFLEX
MCE TECHNOLOGIES, INC.), AEROFLEX / INMET, INC. (f/k/a MCE / INMET CORPORATION),
AEROFLEX / WEINSHEL, INC. (f/k/a MCE / WEINSCHEL CORPORATION), AEROFLEX / KDI,
INC. (f/k/a MCE / KDI CORPORATION) and AEROFLEX METELICS, INC. (f/k/a MCE /
METELICS CORPORATION) (each a "Borrower" and collectively the "Borrowers"), BANK
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OF AMERICA, N.A. (successor by merger to Fleet National Bank) ("BofA"), JPMORGAN
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CHASE BANK, N.A. (f/k/a The Chase Manhattan Bank ("JPMorgan;" BofA and JPMorgan
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are referred to herein individually as a "Bank" and collectively as the
"Banks"), BANK OF AMERICA, N.A. successor by merger to Fleet National Bank, as
Administrative Agent (in such capacity the "Administrative Agent") and Fronting
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Bank, and JPMORGAN CHASE BANK, N.A. as Syndication Agent.
W I T N E S S E T H:
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WHEREAS, the Borrowers, the Banks, the Fronting Bank, the Syndication Agent
and the Administrative Agent have entered into a Fifth Amended and Restated Loan
and Security Agreement, dated as of February 14, 2003, as amended by a First
Amendment dated as of February 27, 2003, by a Consent, Waiver and Second
Amendment Agreement dated as of June 26, 2003, by a Consent, Waiver and Third
Amendment Agreement dated as of July 24, 2003, a Consent, Waiver and Fourth
Amendment Agreement dated as of October 31, 2003, by a Consent, Waiver and Fifth
Amendment Agreement dated as of September 28, 2004, a Consent, Waiver and Sixth
Amendment Agreement dated as of April 19, 2005 and a Consent, Waiver and Seventh
Amendment Agreement dated as of May 20, 2005 (such agreement, as so amended and
as further amended from time to time, the "Loan Agreement"; capitalized terms
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not otherwise defined herein shall have the respective meanings provided
therefor in the Loan Agreement);
WHEREAS, Aeroflex has informed the Banks that it is entering into a new
$100,000,000 credit facility with Aeroflex and Aeroflex Test Solutions Limited
as Borrowers, the lenders party thereto and JPMorgan Chase Bank, N.A., as
administrative agent (the "New Credit Facility");
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WHEREAS, all obligations under the Loan Agreement have been terminated
other than the Mortgage Loans outstanding on the Eighth Amendment Effective Date
(as defined below) and any Liens related thereto;
WHEREAS, as a result of the transactions described above the parties desire
to further amend the Loan Agreement in the manner hereinafter provided;
NOW, THEREFORE, it is agreed:
1. Amendments.
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(i) The Loan Agreement is hereby amended by replacing, effective as of the
Eighth Amendment Effective Date, Article V (Affirmative Covenants),
Article VI (Negative Covenants), Article VIII (Defaults and Remedies)
and Article III
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(Representations and Warranties) with Section 6 (Affirmative
Covenants), Section 7 (Negative Covenants), Section 8 (Events of
Default) and Section 4 (Representations and Warranties), respectively,
of the New Credit Facility, as the same may be amended, supplemented
or otherwise modified from time to time, in each case with the consent
of the Administrative Agent as a party to such amendment, supplement
or other modification, or otherwise; provided that (i) references to
"Administrative Agent", "Aeroflex" and -------- "Lenders" in the
replacement sections shall be deemed to be references to the
"Administrative Agent", "Borrowers" and "Banks" under the Loan
Agreement, respectively, (ii) except as noted in clause (i) above,
defined terms referenced in the replacement sections shall be as
defined in the New Credit Facility, (iii) to the extent any financial
statement of any Borrower is delivered pursuant to the New Credit
Facility, such financial statement shall be deemed to have been
delivered under the Loan Agreement and (iv) the additional following
event of default shall also be considered an Event of Default under
the Loan Agreement, as amended:
"any `Event of Default' shall occur under (and as defined in) any
Mortgage, whether in whole or in part, or any principal payment
thereunder (in whole or in part) shall be accelerated or
otherwise become due or payable prior to the scheduled payment
date."
(ii) The Loan Agreement is hereby amended by replacing clause (a) of
Section 7.01 in its entirety with the following:
"(a) Each Borrower hereby pledges, assigns, conveys, mortgages,
transfers and delivers to the Administrative Agent (for the
benefit of the Administrative agent, the Fronting Bank and all of
the Banks), and grants to the Administrative Agent (for the
benefit of the Administrative Agent, the Fronting Bank and all of
the Banks) a continuing security interest in and to, the
Plainview Property and any and all of the real property described
in any Mortgage, any and all fixtures and improvements thereon
and thereto, and any and all interests therein, as the
"Collateral" for the timely and full payment and satisfaction of
the Obligations as and when due; provided however that the
Plainview Property by its terms serves as Collateral for the
Mortgage Loans, interest thereon and the other related
Obligations as provided in the Plainview Mortgage."
(iii) The Loan Agreement is hereby amended by deleting clause (b) of
Section 7.01 in its entirety.
(iv) "Trigger Event" shall be amended to mean only "the occurrence at any
time of an Event of Default."
(v) All other terms, conditions and provisions of the Loan Agreement,
including Article VII (Collateral) but other than those terms,
conditions and provisions amended or modified by this Amendment,
shall be deemed amended accordingly to conform to, and in a manner
not inconsistent with, the foregoing, and shall be operative only as
and to the extent that the same are applicable to the Mortgage Loans
in the reasonable judgment of the Administrative Agent.
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2. Conditions of Amendment.
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The effectiveness of this Amendment (the "Eighth Amendment Effective Date")
shall be subject to the satisfaction of each of the following terms and
conditions and shall not be effective unless and until each of the following
terms and conditions shall have been satisfied to the satisfaction of the
Administrative Agent and each of the Banks:
(a) Receipt by the Administrative Agent of this Amendment duly executed by
each party hereto.
(b) The Borrowers shall pay all accrued and unpaid fees, costs and expenses
in connection with the Amendment and the transactions contemplated thereby to
the extent then due and payable, together with the reasonable legal fees and
expenses of the Administrative Agent, including any legal fees and expenses of
foreign counsel to the Administrative Agent.
3. Representations and Warranties.
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(a) Each of the Borrowers confirms and restates prior to the Eighth
Amendment Effective Date, the accuracy of the representations and warranties
contained in the Loan Agreement, the Mortgage Notes and any other documentation
creating or evidencing any interest in the Collateral.
(b) The making and performance of this Amendment and the performance of the
Loan Agreement are within the power and authority of each Borrower and have been
duly authorized by all necessary corporate action. The making and performance of
this Amendment does not and under present law will not require any consent or
approval of any of the Borrowers' shareholders or any other person (other than
consents and approvals heretofore obtained and in full force and effect), do not
and under present law will not violate any law, rule, regulation order, writ,
judgment, injunction, decree, determination or award, do not violate any
provision of any Borrower's charter or by-laws, do not and will not result in
any breach of any material agreement, lease or instrument to which any Borrower
is a party, by which any Borrower is bound or to which any of a Borrower's
assets is or may be subject, and do not and will not give rise to any Lien upon
any Borrower's assets except in favor of the Administrative Agent (for the
ratable benefit of the Banks). No authorizations, approvals or consents of, and
no filings or registrations with, any governmental or regulatory authority or
agency (other than authorizations, approvals, consents, filings and
registrations heretofore obtained and in full force and effect) are necessary
for the execution, delivery or performance by any Borrower of this Amendment or
for the validity or enforceability of this Amendment.
4. Miscellaneous.
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(a) The amendments set forth in this Amendment are limited precisely as
written and shall not be deemed to (i) be a consent to or a waiver of any other
term or condition of the Loan Agreement or any other Loan Instrument or (ii)
prejudice any right or rights which any Bank may now have or may have in the
future under or in connection with the Loan Agreement or any other Loan
Instrument.
(b) THIS AMENDMENT AND ALL OTHER AGREEMENTS, DOCUMENTS AND INSTRUMENTS
EXECUTED AND DELIVERED IN CONNECTION WITH THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED IN AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK
BY RESIDENTS OF SUCH STATE.
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(c) The provisions of this Amendment are severable, and if any clause or
provision shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such
clause, provision or part in such jurisdiction and shall not in any manner
affect such clause, provision or part in any other jurisdiction or any other
clause or provision in this Amendment in any jurisdiction.
(d) This Amendment shall be binding upon and inure to the benefit of the
each Borrower and their respective successors and to the benefit of the Fronting
Bank, the Administrative Agent and the Banks and their respective successors and
assigns. The rights and obligations of each Borrower under this Amendment shall
not be assigned or delegated without the prior written consent of the Fronting
Bank, the Administrative Agent and the Banks, and any purported assignment or
delegation without such consent shall be void. This Amendment may be signed in
any number of counterparts with the same effect as if all parties to this
Amendment signed the same counterpart.
(e) The Borrowers agree to pay the Administrative Agent upon demand all
reasonable expenses, including reasonable fees of attorneys and paralegals for
the Administrative Agent, incurred by the Administrative Agent in connection
with the preparation, negotiation and execution of this Amendment and any
agreements, instruments and documents executed or furnished in connection with
this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused a counterpart of this
Amendment to be duly executed and delivered as of the date first above written.
AEROFLEX INCORPORATED
AEROFLEX PLAINVIEW, INC.
AEROFLEX POWELL, INC.
AEROFLEX SYSTEMS CORP.
AEROFLEX BLOOMINGDALE, INC.
AEROFLEX COLORADO SPRINGS, INC.
IFR SYSTEMS, INC.,
AEROFLEX WITCHITA, INC.
AEROFLEX MICROELECTRONIC SOLUTIONS, INC.
AEROFLEX / INMET CORPORATION
AEROFLEX / WEINSCHEL CORPORATION
AEROFLEX / KDI CORPORATION
AEROFLEX / METELICS CORPORATION
as Borrowers
By: /s/Charles T. Badlato
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Name: Charles T. Badlato
Title: Assistant Secretary of each of the above
entities
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BANK OF AMERICA, N.A., as a Bank, as the Fronting
Bank and as the Administrative Agent
By: /s/Steven J. Melicharek
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Name: Steven J. Melicharek
Title: SVP/CPO
JPMORGAN CHASE BANK, as a Bank and as Syndication
Agent
By: John K. Budzynski
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Name: John K. Budzynski
Title: Vice President