Exhibit 10.1
CONSENT TO EXTENSION
THIS CONSENT TO EXTENSION (this "Consent"), is made and entered into as
of April 5, 2004, 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 Revolving Credit Agreement, dated as of May 15, 2003 (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;
WHEREAS, the Borrower has requested that the Lenders and the
Administrative Agent extend the Revolving Commitment Termination Date pursuant
to Section 2.24 of the Credit Agreement, and subject to the terms and conditions
hereof, the Lenders consent and 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. Amendment to Revolving Commitment Termination Date.
(a) Section 1.1 of the Credit Agreement is hereby amended by replacing
the definition of "Revolving Commitment Termination Date" in its entirety with
the following definition:
"Revolving Commitment Termination Date" shall mean the
earliest of (i) May 15, 2007, as extended pursuant to Section
2.24, (ii) the date on which the Revolving Commitments are
terminated pursuant to Section 2.9 and (iii) the date on which
all amounts outstanding under this Agreement have been declared
or have automatically become due and payable (whether by
acceleration or otherwise)."
2. Conditions to Effectiveness of this Consent. Notwithstanding any
other provision of this Consent and without affecting in any manner the rights
of the Lenders hereunder, it is understood and agreed that this Consent shall
not become effective, and the Borrower shall have no rights under this Consent,
until the Administrative Agent shall have
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received (i) reimbursement or payment of its costs and expenses incurred in
connection with this Consent (including reasonable fees, charges and
disbursements of King & Spalding LLP, counsel to the Administrative Agent), and
(ii) executed counterparts to this Consent from the Borrower, each of the
Subsidiary Loan Parties and the Lenders;
3. Representations and Warranties. To induce the Lenders and the
Administrative Agent to enter into this Consent, each Loan Party hereby
represents and warrants to the Lenders and the Agent that:
(a) The execution, delivery and performance by such Loan Party of
this Consent (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; and (vii) do not require the consent or
approval of any Governmental Authority or any other Person;
(b) This Consent 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
extension, no Default or Event of Default shall exist;
(d) all representations and warranties of each Loan Party set forth
in the Loan Documents shall be 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);
(e) since the date of the annual financial statements of the
Borrower described in Section 4.4 of the Credit Agreement, there has been no
change which has had or could reasonably be expected to have a Material Adverse
Effect; and
(f) after giving effect to this Consent, the Revolving Credit
Exposure will not exceed the Aggregate Revolving Commitment Amount.
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4. Reaffirmations and Acknowledgments.
(a) Reaffirmation of Guaranty. Each Subsidiary Loan Party consents
to the execution and delivery by the Borrower of this Consent and jointly and
severally ratify and confirm 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 Consent. 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
Consent 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 Consent shall
constitute a Loan Document for all purposes of the Credit Agreement.
6. Governing Law. This Consent 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.
7. No Novation. This Consent 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 Consent, including, without
limitation, the reasonable fees and out-of-pocket expenses of outside counsel
for the Administrative Agent with respect thereto.
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9. Counterparts. This Consent 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 Consent 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 Consent 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 Consent 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.
[Signature Pages To Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Consent 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:
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Name:
Title:
SUBSIDIARY LOAN PARTIES:
HEICO AEROSPACE HOLDINGS CORP.
By
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Thomas S. Irwin
Treasurer
HEICO AEROSPACE CORPORATION
By
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Thomas S. Irwin
Treasurer
[SIGNATURE PAGE TO CONSENT TO EXTENSION]
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JET AVION CORPORATION
By
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Thomas S. Irwin
Treasurer
LPI INDUSTRIES CORPORATION
By
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Thomas S. Irwin
Treasurer
AIRCRAFT TECHNOLOGY, INC.
By
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Thomas S. Irwin
Treasurer
ATI HEAT TREAT CORPORATION
By
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Thomas S. Irwin
President and Treasurer
JET AVION HEAT TREAT CORPORATION
By
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Thomas S. Irwin
President and Treasurer
N.A.C. ACQUISITION CORPORATION
By
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Thomas S. Irwin
President and Treasurer
[SIGNATURE PAGE TO CONSENT TO EXTENSION]
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NORTHWINGS ACCESSORIES CORP.
By
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Thomas S. Irwin
Treasurer
KINETIC TECHNOLOGIES, INC.
By
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Thomas S. Irwin
Treasurer
HNW BUILDING CORP.
By
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Thomas S. Irwin
President and Treasurer
MCCLAIN INTERNATIONAL, INC.
By
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Thomas S. Irwin
Treasurer
MCCLAIN PROPERTY CORP.
By
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Thomas S. Irwin
Treasurer
ASSOCIATED COMPOSITE, INC.
By
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Thomas S. Irwin
Treasurer
[SIGNATURE PAGE TO CONSENT TO EXTENSION]
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ROGERS-DIERKS, INC.
By
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Thomas S. Irwin
Treasurer
TURBINE KINETICS, INC.
By
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Thomas S. Irwin
Treasurer
AIR RADIO & INSTRUMENTS CORP.
By
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Thomas S. Irwin
Treasurer
THERMAL STRUCTURES, INC.
By
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Thomas S. Irwin
Treasurer
TSI QUALITY HONEYCOMB HOLDINGS CORP.
By
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Thomas S. Irwin
President and Treasurer
FUTURE AVIATION, INC.
By
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Thomas S. Irwin
Treasurer
[SIGNATURE PAGE TO CONSENT TO EXTENSION]
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AVITECH ENGINEERING CORPORATION
By
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Thomas S. Irwin
Treasurer
ATK ACQUISITION CORP.
By
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Thomas S. Irwin
President and Treasurer
AVIATION FACILITIES, INC.
By
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Thomas S. Irwin
Treasurer
HEICO AEROSPACE PARTS CORP.
By
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Thomas S. Irwin
Treasurer
JETSEAL, INC.
By
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Thomas S. Irwin
Treasurer
HEICO AEROSPACE C&A CORP.
By
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Thomas S. Irwin
Treasurer
[SIGNATURE PAGE TO CONSENT TO EXTENSION]
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AD HEICO ACQUISITION CORP.
By
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Thomas S. Irwin
President and Treasurer
AERODESIGN, INC.
By
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Thomas S. Irwin
President
By
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Elizabeth R. Letendre
Secretary
BATTERY SHOP, L.L.C.
By: AD HEICO Acquisition Corp.,
its sole member
By
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Thomas S. Irwin
President and Treasurer
NIACC TECHNOLOGY, INC.
By
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Thomas S. Irwin
Treasurer
HEICO ELECTRONIC TECHNOLOGIES CORP.
By
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Thomas S. Irwin
Treasurer
[SIGNATURE PAGE TO CONSENT TO EXTENSION]
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RADIANT POWER CORP.
By
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Thomas S. Irwin
Treasurer
LEADER TECH, INC.
By
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Thomas S. Irwin
Treasurer
SANTA BARBARA INFRARED, INC.
By
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Thomas S. Irwin
Treasurer
101 LUMMIS ROAD CORP.
By
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Thomas S. Irwin
President and Treasurer
ANALOG MODULES, INC.
By
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Thomas S. Irwin
Treasurer
INERTIAL AIRLINE SERVICES, INC.
By
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Thomas S. Irwin
Treasurer
[SIGNATURE PAGE TO CONSENT TO EXTENSION]
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HEICO EAST CORPORATION
By
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Thomas S. Irwin
Treasurer
HEICO-NEWCO, INC.
By
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Thomas S. Irwin
President and Treasurer
HEICO ENGINEERING CORPORATION
By
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Thomas S. Irwin
President and Treasurer
HEICO-JET CORPORATION
By
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Thomas S. Irwin
President and Treasurer
HEICO BEARINGS CORP.
By
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Thomas S. Irwin
President and Treasurer
[SIGNATURE PAGE TO CONSENT TO EXTENSION]
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LENDERS:
SUNTRUST BANK, as Administrative
Agent, as Issuing Bank, as Swingline
Lender and as a Lender
By:
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Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
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Name:
Title:
HSBC BANK USA
By:
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Name:
Title:
REGIONS BANK
By:
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Name:
Title:
COMMERCEBANK, N.A.
By:
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Name:
Title:
[SIGNATURE PAGE TO CONSENT TO EXTENSION]
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NORTHERN TRUST BANK OF FLORIDA, N.A.
By:
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Name:
Title:
ISRAEL DISCOUNT BANK OF NEW YORK
By:
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Name:
Title:
[SIGNATURE PAGE TO CONSENT TO EXTENSION]
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