Exhibit 10.1
FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "Amendment"), is made and entered into as of July 14, 2006, by
and among HEICO CORPORATION, a Florida corporation (the "Borrower"), the several
banks and other financial institutions from time to time party hereto
(collectively, the "Lenders") and SUNTRUST BANK, in its capacity as
Administrative Agent for the Lenders (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to a certain Amended and Restated Revolving Credit Agreement, dated as
of August 4, 2005 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"; capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the Credit
Agreement), pursuant to which the Lenders have made certain financial
accommodations available to the Borrower; and
WHEREAS, the Borrower has requested that the Lenders and the
Administrative Agent amend certain provisions of the Credit Agreement, and
subject to the terms and conditions hereof, the Lenders are willing to do so;
NOW, THEREFORE, for good and valuable consideration, the sufficiency
and receipt of all of which are acknowledged, the Borrower, the Lenders and the
Administrative Agent agree as follows:
1. AMENDMENTS.
(a) Section 5.17(a) of the Credit Agreement is hereby amended by
replacing both references to " fifteen (15) days" contained in such subsection
with "sixty (60) days".
(b) Section 5.18 of the Credit Agreement is hereby amended by
replacing such Section in its entirety with the following:
Section 5.18. Additional Leased Locations. To the extent
otherwise permitted hereunder, if any Loan Party proposes to lease any
Real Estate, it shall first provide to the Administrative Agent a copy
of such lease, and if the total fair market value of all Collateral at
such location shall at any time exceed $2,000,000, or if the total
fair market value of all Collateral at locations that are not subject
to a landlord's agreement shall at any time exceed $10,000,000, then
such Loan Party shall, deliver a landlord's agreement, from the
landlord of such leased property where such Collateral will be stored
or located, which agreement shall be reasonably satisfactory in form
and substance to the Administrative Agent; provided, however,
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that to the extent that any Loan Party acquires a lease pursuant to a
merger, consolidation or acquisition permitted under Section 7.4, then
such Loan Party, to the extent required by this Section 5.18, shall
not be required to deliver such landlord's agreement until the first
anniversary of the date of such merger, consolidation or acquisition.
(c) Section 7.4(a) of the Credit Agreement is hereby amended by
replacing such subsection (a) in its entirety with the following:
(a) enter into any one or more mergers, consolidations or
acquisitions unless after giving effect thereto,
(i) no Default or Event of Default has occurred and is
continuing, and the Borrower would be in pro forma
compliance with the covenants set forth in Article
VI;
(ii) with respect to any merger or consolidation, (A)
the Borrower is the surviving entity and no
Default exists or would result therefrom
including, without limitation, violation of
covenants contained in Article VI hereof, or (B)
if the Borrower is not a party to such merger or
consolidation, a Subsidiary is the surviving
entity, or was formed solely for the purposes of
acquiring another Person in connection with a
merger or acquisition completed in compliance with
this Section 7.4;
(iii) either (A) (1) the aggregate cash purchase price
for all such mergers, consolidations and
acquisitions paid by the Borrower and its
Subsidiaries would not exceed Fifty Million
Dollars ($50,000,000) in any trailing twelve-month
period (provided, however, that until July 31,
2006 such twelve month period shall be deemed to
be the period commencing on the Closing Date and
ending on the relevant date of termination) or (B)
the Leverage Ratio is less than or equal to 1.50
to 1.00 (provided, that solely for purposes of
calculating the Leverage Ratio pursuant to this
Section 7.4(a)(iii), any portion of Consolidated
EBITDA attributable to any Person accrued prior to
the date it becomes a Subsidiary or is merged into
or consolidated with the Borrower or any
Subsidiary or the date that such Person's assets
are acquired by the Borrower or any Subsidiary
shall be excluded except (i) for any Person that
became a Subsidiary or was merged or consolidated
with the Borrower or any Subsidiary or whose
assets were acquired by the Borrower or any
Subsidiary prior to the date hereof, or (ii) to
the extent approved by the Administrative Agent in
its reasonable discretion);
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(iv) the Aggregate Revolving Commitment Amount exceeds
the aggregate Revolving Credit Exposure for all
Lenders by at least Twenty Million Dollars
($20,000,000); and
(v) the consolidated revenue and assets of the Loan
Parties (excluding all intercompany Investments,
intercompany receivables and other intercompany
assets in Subsidiaries that are not Loan Parties)
equal or exceed the Aggregate Subsidiary
Threshold.
2. Conditions to Effectiveness of this Amendment. Notwithstanding
any other provision of this Amendment and without affecting in any manner the
rights of the Lenders hereunder, it is understood and agreed that this Amendment
shall not become effective, and the Borrower shall have no rights under this
Amendment, until the Administrative Agent shall have received executed
counterparts to this Amendment from the Borrower, each of the Guarantors and the
Required Lenders.
3. Representations and Warranties. To induce the Lenders and the
Administrative Agent to enter into this Amendment, each Loan Party hereby
represents and warrants to the Lenders and the Administrative Agent:
(a) The execution, delivery and performance by such Loan Party of
this Amendment and each Loan Document delivered pursuant hereto (i) are within
such Loan Party's power and authority; (ii) have been duly authorized by all
necessary corporate and shareholder action; (iii) are not in contravention of
any provision of such Loan Party's certificate of incorporation or bylaws or
other organizational documents; (iv) do not violate any law or regulation, or
any order or decree of any Governmental Authority; (v) do not conflict with or
result in the breach or termination of, constitute a default under or accelerate
any performance required by, any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which such Loan Party or any of its
Subsidiaries is a party or by which such Loan Party or any such Subsidiary or
any of their respective property is bound; (vi) do not result in the creation or
imposition of any Lien upon any of the property of such Loan Party or any of its
Subsidiaries (other than liens in favor of the Administrative Agent and the
Lenders); and (vii) do not require the consent or approval of any Governmental
Authority or any other Person;
(b) This Amendment and each of the other Loan Documents delivered
pursuant hereto has been duly executed and delivered for the benefit of or on
behalf of each Loan Party and constitutes a legal, valid and binding obligation
of each Loan Party, enforceable against such Loan Party in accordance with its
terms except as the enforceability hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws affecting creditors'
rights and remedies in general;
(c) At the time of and immediately after giving effect to this
Amendment, no Default or Event of Default shall exist;
(d) All representations and warranties of each Loan Party set forth
in the Loan
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Documents are true and correct in all material respects on and as of the date
hereof, in each case before and after giving effect thereto (except to the
extent such representations and warranties relate solely to an earlier date and
except for changes therein expressly permitted or expressly contemplated by the
Loan Documents); and
(e) Since the date of the most recent annual financial statements of
the Borrower delivered pursuant to Section 5.1(b) of the Credit Agreement, there
has been no change which has had or could reasonably be expected to have a
Material Adverse Effect.
4. Reaffirmations and Acknowledgments.
(a) Reaffirmation of Subsidiary Guaranty Agreement. Each Subsidiary
Loan Party consents to the execution and delivery by the Borrower of this
Amendment and jointly and severally ratifies and confirms the terms of the
Subsidiary Guaranty Agreement with respect to the indebtedness now or hereafter
outstanding under the Credit Agreement as amended hereby and all promissory
notes issued thereunder. Each Subsidiary Loan Party acknowledges that,
notwithstanding anything to the contrary contained herein or in any other
document evidencing any indebtedness of the Borrower to the Lenders or any other
obligation of the Borrower, or any actions now or hereafter taken by the Lenders
with respect to any obligation of the Borrower, the Subsidiary Guaranty
Agreement (i) is and shall continue to be a primary obligation of the Subsidiary
Loan Parties, (ii) is and shall continue to be an absolute, unconditional, joint
and several, continuing and irrevocable guaranty of payment, and (iii) is and
shall continue to be in full force and effect in accordance with its terms.
Nothing contained herein to the contrary shall release, discharge, modify,
change or affect the original liability of the Subsidiary Loan Parties under the
Subsidiary Guaranty Agreement.
(b) Acknowledgment of Perfection of Security Interest. Each Loan
Party hereby acknowledges that, as of the date hereof, the security interests
and liens granted to the Administrative Agent and the Lenders under the Credit
Agreement and the other Loan Documents are in full force and effect, are
properly perfected and are enforceable in accordance with the terms of the
Credit Agreement and the other Loan Documents.
5. Effect of Amendment. Except as set forth expressly herein, all
terms of the Credit Agreement, as amended hereby, and the other Loan Documents
shall be and remain in full force and effect and shall constitute the legal,
valid, binding and enforceable obligations of the Borrower to the Lenders and
the Administrative Agent. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Lenders under the Credit Agreement, nor
constitute a waiver of any provision of the Credit Agreement. This Amendment
shall constitute a Loan Document for all purposes of the Credit Agreement.
6. Governing Law. This Amendment shall be governed by, and construed
in accordance with, the internal laws of the State of Florida and all applicable
federal laws of the United States of America.
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7. No Novation. This Amendment is not intended by the parties to be,
and shall not be construed to be, a novation of the Credit Agreement or an
accord and satisfaction in regard thereto.
8. Costs and Expenses. The Borrower agrees to pay on demand all
costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and out-of-pocket expenses of outside counsel
for the Administrative Agent with respect thereto.
9. Counterparts. This Amendment may be executed by one or more of
the parties hereto in any number of separate counterparts, each of which shall
be deemed an original and all of which, taken together, shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart of
this Amendment by facsimile transmission or by electronic mail in pdf form shall
be as effective as delivery of a manually executed counterpart hereof.
10. Binding Nature. This Amendment shall be binding upon and inure to
the benefit of the parties hereto, their respective successors,
successors-in-titles, and assigns.
11. Entire Understanding. This Amendment sets forth the entire
understanding of the parties with respect to the matters set forth herein, and
shall supersede any prior negotiations or agreements, whether written or oral,
with respect thereto; provided, however, that this Amendment shall have no
effect on the HEICO Consent Letters, dated October 28, 2005 and May 12, 2006,
which remain in full force and effect.
[Signature Pages To Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed, under seal in the case of the Borrower and the Subsidiary Loan
Parties, by their respective authorized officers as of the day and year first
above written.
BORROWER:
HEICO CORPORATION
By:
-----------------------------
Name:
Title:
SUBSIDIARY LOAN PARTIES:
HEICO AEROSPACE HOLDINGS CORP.
By:
-----------------------------
Name:
Title:
HEICO AEROSPACE CORPORATION
By:
-----------------------------
Name:
Title:
JET AVION CORPORATION
By:
-----------------------------
Name:
Title:
LPI INDUSTRIES CORPORATION
By:
-----------------------------
Name:
Title:
AIRCRAFT TECHNOLOGY, INC.
By:
-----------------------------
Name:
Title:
N.A.C. ACQUISITION CORPORATION
By:
-----------------------------
Name:
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
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NORTHWINGS ACCESSORIES CORP.
By:
-----------------------------
Name:
Title:
HNW BUILDING CORP.
By:
-----------------------------
Name:
Title:
MCCLAIN INTERNATIONAL, INC.
By:
-----------------------------
Name:
Title:
MCCLAIN PROPERTY CORP.
By:
-----------------------------
Name:
Title:
ROGERS-DIERKS, INC.
By:
-----------------------------
Name:
Title:
TURBINE KINETICS, INC.
By:
-----------------------------
Name:
Title:
THERMAL STRUCTURES, INC.
By:
-----------------------------
Name:
Title:
FUTURE AVIATION, INC.
By:
-----------------------------
Name:
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
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ATK ACQUISITION CORP.
By:
-----------------------------
Name:
Title:
AVIATION FACILITIES, INC.
By:
-----------------------------
Name:
Title:
HEICO AEROSPACE PARTS CORP.
By:
-----------------------------
Name:
Title:
JETSEAL, INC.
By:
-----------------------------
Name:
Title:
HEICO AEROSPACE C&A CORP.
By:
-----------------------------
Name:
Title:
AD HEICO ACQUISITION CORP.
By:
-----------------------------
Name:
Title:
AERODESIGN, INC.
By:
-----------------------------
Name:
Title:
BATTERY SHOP, L.L.C.
By: AD HEICO Acquisition Corp.,
its sole member
By:
-----------------------------
Name:
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
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NIACC-AVITECH TECHNOLOGY, INC.
By:
-----------------------------
Name:
Title:
HEICO ELECTRONIC TECHNOLOGIES CORP.
By:
-----------------------------
Name:
Title:
RADIANT POWER CORP.
By:
-----------------------------
Name:
Title:
LEADER TECH, INC.
By:
-----------------------------
Name:
Title:
SANTA BARBARA INFRARED, INC.
By:
-----------------------------
Name:
Title:
101 LUMMIS ROAD CORP.
By:
-----------------------------
Name:
Title:
ANALOG MODULES, INC.
By:
-----------------------------
Name:
Title:
INERTIAL AIRLINE SERVICES, INC.
By:
-----------------------------
Name:
Title:
HEICO EAST CORPORATION
By:
-----------------------------
Name:
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
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CONNECTRONICS CORP.
By:
-----------------------------
Name:
Title:
HNW2 BUILDING CORP.
By:
-----------------------------
Name:
Title:
JA ENGINEERING I CORP.
By:
-----------------------------
Name:
Title:
JA ENGINEERING II CORP.
By:
-----------------------------
Name:
Title:
SIERRA MICROWAVE TECHNOLOGY, LLC
By:
-----------------------------
Name:
Title:
LUMINA POWER, INC.
By:
-----------------------------
Name:
Title:
HEICO AEROSPACE CORPORATION
By:
-----------------------------
Name:
Title:
EDT ACQUISITION CORPORATION
By:
-----------------------------
Name:
Title:
Address:
ENGINEERING DESIGN TEAM, INC.
By:
-----------------------------
Name:
Title:
Address:
[SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
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LENDERS:
SUNTRUST BANK, as Administrative
Agent, Issuing Bank, Swingline
Lender and as a Lender
By:
-----------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
-----------------------------
Name:
Title:
HSBC BANK USA, N.A.
By:
-----------------------------
Name:
Title:
REGIONS BANK
By:
-----------------------------
Name:
Title:
COMMERCEBANK, N.A.
By:
-----------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By:
-----------------------------
Name:
Title:
CITIBANK, F.S.B.
By:
-----------------------------
Name:
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
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