EXECUTION COPY
FIRST AMENDMENT AGREEMENT
FIRST AMENDMENT AGREEMENT (this "Amendment"), dated as of August 28, 2006
(the "Amendment"), to the Five-Year Senior Revolving Credit Agreement, dated as
of March 21, 2006 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among AEROFLEX INCORPORATED, a Delaware
corporation ("Aeroflex"), AEROFLEX TEST SOLUTIONS LIMITED, a U.K. private
limited company ("Solutions", and together with Aeroflex, the "Borrowers", and
each individually, a "Borrower"), the several banks and other financial
institutions or entities from time to time parties thereto (the "Lenders"), and
JPMORGAN CHASE BANK, N.A. as Administrative Agent (in such capacity the
"Administrative Agent").
W I T N E S S E T H:
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WHEREAS, the Borrowers, the Lenders and the Administrative Agent are
parties to the Credit Agreement;
WHEREAS, the Borrowers has requested an amendment to the Credit Agreement;
and
WHEREAS, the Lenders are willing to agree to such amendments, subject to
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Borrowers, the Lenders and the Administrative Agent hereby
agree as follows:
1. Defined terms. Unless otherwise defined herein, all capitalized terms
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used herein shall have the meanings given to them in the Credit Agreement.
2. Amendment to Section 7.6. Section 7.6 of the Credit Agreement is hereby
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amended by (i) deleting the word "and" immediately following Section 7.6(b),
(ii) deleting the period immediately following clause 7.6(c) and inserting in
lieu thereof a semicolon and the word "and" and (iii) inserting the following
new Section 7.6(d) immediately following Section 7.6(c) thereto:
"(d) Aeroflex may make additional Restricted Payments in the form of
repurchases of up to 3,000,000 shares of its Capital Stock pursuant to the
repurchase plan approved by Aeroflex's board of directors and announced on May
23, 2005 so long as, at the time of any such Restricted Payment and immediately
after giving effect thereto, no Default shall have occurred and be continuing
and the aggregate amount of such Restricted Payments does not exceed
$30,000,000."
3. Conditions of Amendment.
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The effectiveness of this Amendment (the "First 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 Lenders:
(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 out of pocket
legal fees of counsel to, and expenses of, the
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Administrative Agent, including any out of pocket legal fees and expenses of
foreign counsel to the Administrative Agent.
4. Representations and Warranties.
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(a) Each of the Borrowers confirms and restates on and as of the First
Amendment Effective Date, before and after giving effect to the effectiveness of
this Amendment, the accuracy of the representations and warranties contained in
each Loan Document.
(b) The making and performance of this Amendment and the performance of the
Credit 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 Lenders). 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.
5. 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 Credit Agreement or any other Loan Document or (ii)
prejudice any right or rights which any Lender may now have or may have in the
future under or in connection with the Credit Agreement or any other Loan
Document.
(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.
(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
Administrative Agent and the Lenders 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 the
Administrative Agent and the Lenders, and any purported assignment or delegation
without such consent shall be void. This
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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 out of pocket fees of attorneys and
paralegals to 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, as a Borrower
By: /s/ Charles Badlato
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Name: Charles Badlato
Title: Vice President- Treasurer
AEROFLEX TEST SOLUTIONS LIMITED, as a
Borrower
By: /s/ Robert Peavey
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Name: Robert Peavey
Title: Director
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JPMORGAN CHASE BANK, N.A., as a Lender and as
the Administrative Agent
By: /s/ Tara Lynne Moore
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Name: Tara Lynne Moore
Title: Vice President
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Signature page to the First Amendment
dated as of August 28, 2006 to the
AEROFLEX INCORPORATED AND AEROFLEX
TEST SOLUTIONS LIMITED Credit Agreement
Bank of America, N.A.
By: /s/ William Blackford
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Name: William Blackford
Title: SVP/Senior Credit Products Officer
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Signature page to the First Amendment
dated as of August 28, 2006 to the
AEROFLEX INCORPORATED AND AEROFLEX
TEST SOLUTIONS LIMITED Credit Agreement
NORTH FORK BANK
By: /s/ Philip Davi
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Name: Philip Davi
Title: Senior Vice President
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Signature page to the First Amendment
dated as of August 28, 2006 to the
AEROFLEX INCORPORATED AND AEROFLEX
TEST SOLUTIONS LIMITED Credit Agreement
HSBC Bank USA, N.A.
By: /s/ Philip M. Panarelli
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Name: Philip M. Panarelli
Title: Senior Vice President