XXXXXXX AIRCRAFT HOLDINGS, INC.
FIRST AMENDMENT
TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is dated as of
January 22, 1999 and entered into by and among XxXxxxx Aircraft Holdings, Inc.,
a Delaware corporation ("COMPANY"), the financial institutions listed on the
signature pages hereof ("LENDERS"), DLJ Capital Funding, Inc., as syndication
agent for Lenders ("SYNDICATION AGENT") and The First National Bank of Chicago,
as administrative agent for Lenders ("ADMINISTRATIVE AGENT"), and is made with
reference to that certain Credit Agreement dated as of August 28, 1998 (the
"CREDIT AGREEMENT"), by and among Company, the lenders listed on the signature
pages thereof, Syndication Agent and Administrative Agent. Capitalized terms
used herein without definition shall have the same meanings herein as set forth
in the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit Agreement to
(i) increase the aggregate amount of the Tranche B Term Loans from $45,000,000
to $65,000,000, (ii) increase the interest rate margins applicable to the Loans
and (iii) make certain other amendments as set forth below:
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
.1 AMENDMENTS TO SECTION 1: DEFINITIONS
A. Subsection 1.1 of the Credit Agreement is hereby amended by
adding thereto the following definitions, which shall be inserted in proper
alphabetical order:
"'ADDITIONAL TRANCHE B TERM LOAN COMMITMENT' means the commitment of a
Lender to make an Additional Tranche B Term Loan to Company on the
First Amendment Closing Date pursuant to subsection 2.1A(ii), and
'ADDITIONAL TRANCHE B TERM LOAN COMMITMENTS' means such commitments of
all Lenders in the aggregate."
"'ADDITIONAL TRANCHE B TERM LOAN EXPOSURE' means, with respect to any
Tranche B Term Loan Lender as of any date of determination (i) prior
to the funding of the Additional Tranche B Term Loans, that Lender's
Additional Tranche B Term Loan Commitment and (ii) after the funding
of the Additional Tranche B Term Loans, the outstanding principal
amount of the Additional Tranche B Term Loan of that Lender."
"'ADDITIONAL TRANCHE B TERM LOANS' means only those Tranche B Term
Loans made by Tranche B Term Loan Lenders to Company on the First
Amendment Closing Date pursuant to subsection 2.1A(ii)."
"'ADDITIONAL TRANCHE B TERM NOTES' means the promissory notes of
Company issued pursuant to subsection 2.1D on the First Amendment
Closing Date, substantially in the form of EXHIBIT V annexed hereto,
as they may be amended, supplemented or otherwise modified from time
to time."
"'FIRST AMENDMENT CLOSING DATE' means the date on or before February
12, 1999 on which the Additional Tranche B Term Loans are made."
"'ORIGINAL TRANCHE B TERM LOAN COMMITMENT' means the commitment of a
Lender to make a Tranche B Term Loan to Company on the Closing Date
pursuant to subsection 2.1A(ii), and 'ORIGINAL TRANCHE B TERM LOAN
COMMITMENTS' means such commitments of all Lenders in the aggregate."
"'ORIGINAL TRANCHE B TERM LOAN EXPOSURE' means, with respect to any
Tranche B Term Loan Lender as of any date of determination (i) prior
to the funding of the Original Tranche B Term Loans, that Lender's
Original Tranche B Term Loan Commitment and (ii) after the funding of
the Original Tranche B Term Loans, the outstanding principal amount of
the Original Tranche B Term Loan of that Lender."
"'ORIGINAL TRANCHE B TERM LOANS' means only those Tranche B Term Loans
made by Tranche B Term Loan Lenders to Company on the Closing Date
pursuant to subsection 2.1A(ii)."
"'PATS ACQUISITION' means the acquisition by Company of 100% of the
capital stock of PATS, Inc. for an equity purchase price of
approximately $41,500,000 pursuant to that certain Stock Purchase and
Sale Agreement dated as of December 15, 1998, by and among PATS, Inc.,
the principal shareholders of PATS, Inc. and Company."
B. The definition of "Pro Rata Share" in Subsection 1.1 of the
Credit Agreement is hereby amended by deleting subpart (ii) in its entirety and
substituting in the place of such language the following:
"(ii)(A) with respect to all payments, computations and other matters
relating to the Original Tranche B Term Loan Commitments or the
Original Tranche B Term Loan of any Lender, the percentage obtained by
DIVIDING (1) the Original Tranche B Term Loan Exposure of that Lender
BY (2) the aggregate Original Tranche B Term Loan Exposure of all
Lenders, (B) with respect to all payments, computations and other
matters relating to the Additional Tranche B Term Loan Commitments or
the Additional Tranche B Term Loan of any Lender, the percentage
obtained by DIVIDING (1) the Additional Tranche B
2
Term Loan Exposure of that Lender BY (2) the aggregate Additional
Tranche B Term Loan Exposure of all Lenders and (C) with respect to
all payments, computations and other matters relating to the Tranche B
Term Loan Commitments or the Tranche B Term Loan of any Lender, the
percentage obtained by DIVIDING (1) the Tranche B Term Loan Exposure
of that Lender BY (2) the aggregate Tranche B Term Loan Exposure of
all Lenders,"
and the definition of "Pro Rata Share" in Subsection 1.1 of the Credit
Agreement is hereby further amended by deleting the last sentence thereof in its
entirety and substituting in the place of such language the following:
"The initial Pro Rata Share of each Lender for purposes of each of
clauses (i), (ii)(A), (ii)(B), (ii)(C), (iii) and (iv) of the
preceding sentence is set forth opposite the name of that Lender in
SCHEDULE 2.1 annexed hereto."
C. The definition of "Tranche B Term Loan Exposure" in Subsection
1.1 of the Credit Agreement is hereby amended by deleting it in its entirety and
substituting the following therefor:
"'TRANCHE B TERM LOAN EXPOSURE' means, with respect to any Tranche B
Term Loan Lender as of any date of determination (i) prior to the
First Amendment Closing Date, that Lender's Original Tranche B Term
Loan Exposure on such date and (ii) on and after the First Amendment
Closing Date, the outstanding principal amount of the Tranche B Term
Loan of that Lender."
D. The definition of "Tranche B Term Loan Lender" in Subsection 1.1
of the Credit Agreement is hereby amended by deleting it in its entirety and
substituting the following therefor:
"'TRANCHE B TERM LOAN LENDER' means any Lender who holds an Original
Tranche B Term Loan Commitment or who holds an Additional Tranche B
Term Loan Commitment or who has made a Tranche B Term Loan hereunder,
and any assignee of such Lender pursuant to subsection 10.1B."
E. The definition of "Tranche B Term Loans" in Subsection 1.1 of the
Credit Agreement is hereby amended by adding the following after "means the
Tranche B Term Loans":
", including the Additional Tranche B Term Loans,".
F. The definition of "Tranche B Term Notes" in Subsection 1.1 of the
Credit Agreement is hereby amended by deleting the words "and (ii)" and
substituting in the place of such language the following:
", (ii) the Additional Tranche B Term Notes and (iii)".
3
G. The definition of "Permitted Acquisition" in Subsection 1.1 of
the Credit Agreement is hereby amended by replacing the period at the end of
said definition with a semicolon, and adding the following after such semicolon:
"PROVIDED FURTHER that the PATS Acquisition shall be exempted from the
dollar limits set forth in this definition and shall not be included
at any time in any calculations to determine compliance with any such
dollar limits, but the PATS Acquisition shall otherwise comply with
all other requirements set forth in this Agreement pertaining to the
acquisition of a business by Company or one of its Wholly-Owned
Subsidiaries that is a Domestic Subsidiary, including, without
limitation, the requirements set forth in this definition and the
requirements set forth in subsections 6.7 and 6.8, and, subject to
such compliance, the PATS Acquisition shall be deemed to be a
Permitted Acquisition."
.2 AMENDMENTS TO SECTION 2: AMOUNTS AND TERMS OF COMMITMENTS AND
LOANS
A. Subsection 2.1A(ii) is hereby amended by deleting it in its
entirety and substituting the following therefor:
"(ii) TRANCHE B TERM LOANS. Each Tranche B Term Loan Lender
having an Original Tranche B Term Loan Commitment severally agrees to
lend to Company on the Closing Date an amount not exceeding its Pro
Rata Share of the aggregate amount of the Original Tranche B Term Loan
Commitments and each Tranche B Term Loan Lender having an Additional
Tranche B Term Loan Commitment severally agrees to lend to Company on
the First Amendment Closing Date an amount not exceeding its Pro Rata
Share of the aggregate amount of the Additional Tranche B Term Loan
Commitments, in each case to be used for the purposes identified in
subsection 2.5A. The amounts of each Tranche B Term Loan Lender's
Original Tranche B Term Loan Commitment and each Tranche B Term Loan
Lender's Additional Tranche B Term Loan Commitment are set forth
opposite such Tranche B Term Loan Lender's name on SCHEDULE 2.1
annexed hereto. The aggregate amount of the Original Tranche B Term
Loan Commitments is $45,000,000, the aggregate amount of the
Additional Tranche B Term Loan Commitments is $20,000,000 and the
aggregate amount of the Tranche B Term Loan Commitments is
$65,000,000; PROVIDED that the Tranche B Term Loan Commitments of
Tranche B Term Loan Lenders shall be adjusted to give effect to any
assignments of the Tranche B Term Loan Commitments pursuant to
subsection 10.1B. Each Tranche B Term Loan Lender's Original Tranche
B Term Loan Commitment shall expire immediately and without further
action on the earlier of (i) October 31, 1998, if the Tranche B Term
Loans (other than the Additional Tranche B Term Loans) are not made on
or before that date and (ii) at the close of business on the Closing
Date. Each Tranche B Term Loan
4
Lender's Additional Tranche B Term Loan Commitment shall expire
immediately and without further action on the earlier of (i) February
12, 1999, if the Additional Tranche B Term Loans are not made on or
before that date and (ii) at the close of business on the First
Amendment Closing Date. Company may make only one borrowing under the
Original Tranche B Term Loan Commitments and may make only one
borrowing under the Additional Tranche B Term Loan Commitments.
Amounts borrowed under this subsection 2.1A(ii) and subsequently
repaid or prepaid may not be reborrowed."
B. Subsection 2.1D is hereby amended by adding the following
sentence after the last period of said subsection:
"Company shall execute and deliver on the First Amendment Closing Date
to each Tranche B Term Loan Lender with an Additional Tranche B Term
Loan Commitment (or to Administrative Agent for that Lender) that has
so requested at least one Business Day prior to the First Amendment
Closing Date an Additional Tranche B Term Note substantially in the
form of EXHIBIT V annexed hereto to evidence that Lender's Additional
Tranche B Term Loan, in the principal amount of that Lender's
Additional Tranche B Term Loan and with other appropriate insertions."
C. Subsection 2.2A(i)(a) is hereby amended by deleting the table set
forth following subsection 2.2A(i)(a)(2) in its entirety and substituting the
following therefor:
Consolidated Leverage Ratio Applicable Eurodollar Applicable Base
--------------------------- Rate Rate Margin
Margin -------------
----------
Greater than or equal to 2.75% 1.50%
5.00:1.00
Greater than or equal to 2.50% 1.25%
4.50:1.00 but less than
5.00:1.00
Greater than or equal to 2.25% 1.00%
4.00:1.00 but less than
4.50:1.00
Greater than or equal to 1.75% 0.50%
3.50:1.00 but less than
4.00:1.00
5
Greater than or equal to 1.50% 0.25%
3.00:1.00 but less than
3.50:1.00
Less than 3.00:1.00 1.00% 0.00%
A. Subsection 2.2A(i) is hereby further amended by deleting the
paragraph which begins "PROVIDED that until the delivery" in its entirety and
substituting the following therefor:
"PROVIDED that until the First Amendment Closing Date, the applicable
margin for Tranche A Term Loans, Working Capital Loans and Acquisition
Loans that are Eurodollar Rate Loans shall be 2.25% per annum and for
Tranche A Term Loans, Working Capital Loans, Swing Line Loans and
Acquisition Loans that are Base Rate Loans shall be 1.00% per annum;
PROVIDED FURTHER that from the First Amendment Closing Date until the
delivery of the first Margin Determination Certificate pursuant to
subsection 6.1(iv) after the six-month anniversary of the First
Amendment Closing Date, the applicable margin for Tranche A Term
Loans, Working Capital Loans and Acquisition Loans that are Eurodollar
Rate Loans shall be 2.75% per annum and for Tranche A Term Loans,
Working Capital Loans, Swing Line Loans and Acquisition Loans that are
Base Rate Loans shall be 1.50% per annum."
B. Subsection 2.2A(i)(b) is hereby amended by deleting it in its
entirety and substituting the following therefor:
"(b) Subject to the provisions of subsection 2.2E, the Tranche B Term
Loans shall bear interest through maturity as follows:
"(1) if a Base Rate Loan, then (A) from the Closing Date until
the First Amendment Closing Date, at the sum of the Base Rate PLUS
1.25% per annum and (B) from the First Amendment Closing Date until
maturity, at the sum of the Base Rate PLUS 1.75% per annum; or
"(2) if a Eurodollar Rate Loan, then (A) from the Closing Date
until the First Amendment Closing Date, at the sum of the Adjusted
Eurodollar Rate for the Interest Period applicable to such Loan PLUS
2.50% per annum and (B) from the First Amendment Closing Date until
maturity, at the sum of the Adjusted Eurodollar Rate for the Interest
Period applicable to such Loan PLUS 3.00% per annum;"
C. Subsection 2.2B is hereby amended by deleting the phrase "if
available" contained in the fourth line from the beginning of said subsection
and substituting the phrase "if available to each Lender" therefor.
6
D. Subsection 2.2B is hereby further amended by replacing the period
at the end of said subsection with a semicolon and adding the following after
such semicolon:
"PROVIDED, FURTHER that with respect to each Additional Tranche B Term
Loan made on the First Amendment Closing Date, if the Administrative
Agent shall agree, the initial Interest Period will commence on the
Business Day on which such Additional Tranche B Term Loan is made and
shall end on the last day of the then existing Interest Period in
respect of the then outstanding Original Tranche B Term Loans."
7
E. Subsection 2.4A(ii) is hereby amended by deleting the table set
forth therein in its entirety and substituting the following therefor:
---------------------------------------------------------------
Scheduled Repayment Date Scheduled Repayment
of Tranche B Term Loans
---------------------------------------------------------------
December 31, 1998 $112,500
March 31, 1999 $162,500
June 30, 1999 $162,500
September 30, 1999 $162,500
December 31, 1999 $162,500
March 31, 2000 $162,500
June 30, 2000 $162,500
September 30, 2000 $162,500
December 31, 2000 $162,500
March 31, 2001 $162,500
June 30, 2001 $162,500
September 30, 2001 $162,500
December 31, 2001 $162,500
March 31, 2002 $162,500
June 30, 2002 $162,500
September 30, 2002 $162,500
December 31, 2002 $162,500
March 31, 2003 $162,500
June 30, 2003 $162,500
September 30, 2003 $162,500
December 31, 2003 $162,500
March 31, 2004 $162,500
June 30, 2004 $162,500
September 30, 2004 $162,500
December 31, 2004 $15,287,500
March 31, 2005 $15,287,500
June 30, 2005 $15,287,500
September 30, 2005 $15,287,500
----------------------
Total $65,000,000
8
A. Subsection 2.5A is hereby amended by:
(i) deleting the first sentence thereof in its entirety and
substituting the following therefor:
"The proceeds of the Term Loans (other than the Additional
Tranche B Term Loans), together with other funds available
to Company, shall be applied by Company to pay the
Acquisition Financing Requirements.",
(ii) deleting the reference to "Tranche B Term Loans" contained
in the third sentence thereof and substituting the term "Original
Tranche B Term Loans" therefor and
(iii) adding the following sentence at the end of such
subsection:
"The proceeds of the Additional Tranche B Term Loans shall
be applied by Company to finance directly or indirectly the
costs of the PATS Acquisition."
B. Subsection 7.3(viii) is hereby amended by deleting the reference
therein to "subsection 7.7(viii)" and substituting the phrase "subsection
7.7(vii)" therefor.
.2 SUBSTITUTION AND MODIFICATION OF SCHEDULES
A. SCHEDULE 2.1: LENDERS' COMMITMENTS AND PRO RATA SHARES.
SCHEDULE 2.1 to the Credit Agreement is hereby amended by deleting it in its
entirety and substituting therefor the schedule attached as ANNEX A to this
Amendment.
B. SCHEDULE 5.1: SUBSIDIARIES. SCHEDULE 5.1 to the Credit
Agreement is hereby amended by adding thereto the information contained in
ANNEX B to this Amendment.
C. SCHEDULE 5.11: ENVIRONMENTAL MATTERS. SCHEDULE 5.11 to the
Credit Agreement is hereby amended by adding the information contained in ANNEX
C to this Amendment.
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon, and the
obligations of Tranche B Term Loan Lenders to make Additional Tranche B Term
Loans are subject to, the satisfaction on or prior to February 12, 1999 of all
of the following conditions precedent and the conditions set forth in Section 5E
hereof (the date of satisfaction of such conditions being referred to herein as
the "FIRST AMENDMENT EFFECTIVE DATE"):
A. On or before the First Amendment Effective Date, Company shall
deliver to Lenders (or to Administrative Agent for Lenders with sufficient
originally executed copies,
9
where appropriate, for each Lender and its counsel) the following, each, unless
otherwise noted, dated the First Amendment Effective Date:
1 Certified copies of its Certificate of Incorporation,
together with a good standing certificate from the Secretary of State of
the State of Delaware, each dated a recent date prior to the First
Amendment Effective Date;
2 Copies of its Bylaws, certified as of the First Amendment
Effective Date by its corporate secretary or an assistant secretary;
3 Resolutions of its Board of Directors approving and
authorizing the execution, delivery, and performance of this Amendment,
certified as of the First Amendment Effective Date by its corporate
secretary or an assistant secretary as being in full force and effect
without modification or amendment;
4 Signature and incumbency certificates of its officers
executing this Amendment; and
5 Executed originals of this Amendment, executed by Company
and by each Subsidiary Guarantor, and, subject to the provisions of
subsection 2.1D, executed originals of any Additional Tranche B Term Notes
requested by any Tranche B Term Loan Lender at least one Business Day prior
to the First Amendment Closing Date.
B. Lenders shall have received originally executed copies of one or
more favorable written opinions of Xxxxx Xxxx & Xxxxxxxx, Xxxxxx & Xxxxxxxxx and
other counsel reasonably acceptable to the Agents, each counsel for Company, in
form and substance reasonably satisfactory to Administrative Agent and its
counsel, dated as of the First Amendment Effective Date and setting forth,
collectively, substantially the matters in the opinions designated in ANNEX D to
this Amendment.
C. All documents executed or submitted in connection with the
transactions contemplated hereby by or on behalf of Company or any of its
Subsidiaries shall be reasonably satisfactory in form and substance to Agents
and their counsel; Agents and their counsel shall have received all information,
approvals, opinions, documents or instruments that Agents or their counsel shall
have reasonably requested.
D. On or before the First Amendment Effective Date, the PATS
Acquisition shall have been consummated and, simultaneously therewith, PATS,
Inc. shall execute and deliver to Lenders (or to Administrative Agent for
Lenders with sufficient originally executed copies, where appropriate, for each
Lender and its counsel) all documents necessary to be signed upon such
consummation pursuant to subsection 6.7, including, but not limited to, a
Subsidiary Pledge Agreement, an acknowledgement to the Security Agreement and a
counterpart of the Subsidiary Guaranty, each dated the First Amendment Effective
Date, together with the other documents required by subsection 6.7.
00
X. Xx or before the First Amendment Effective Date, Company shall
have paid any and all (1) amendment fees due as set forth in the fee letter
entered into for purposes of this Amendment and (2) attorneys' fees, expenses
and disbursements of counsel to Agents incurred in connection with this
Amendment.
Section 3. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, Company represents and
warrants to each Lender that the following statements are true, correct and
complete on and as of the First Amendment Closing Date and on and as of the
First Amendment Effective Date:
A. CORPORATE POWER AND AUTHORITY. Each of Company and each of its
Subsidiaries has all requisite corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and perform its
obligations under, the Credit Agreement as amended by this Amendment (the
"AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of each of Company and each of its
Subsidiaries.
C. NO CONFLICT. The execution, delivery and performance by each of
Company and each of its Subsidiaries of this Amendment and the performance by
Company of the Amended Agreement do not and will not (i) violate any provision
of (x) any law or any governmental rule or regulation applicable to Company or
any of its Subsidiaries where such violations in the aggregate have had or could
reasonably be expected to have a Material Adverse Effect, (y) the Certificate or
the Articles of Incorporation or Bylaws of Company or any of Company's
Subsidiaries or (z) any order, judgment or decree of any court or other agency
of government binding on Company or any of Company's Subsidiaries where such
violations in the aggregate have had or could reasonably be expected to have a
Material Adverse Effect, (ii) conflict with, result in a breach of or constitute
a default under any Contractual Obligation of Company or any of its Subsidiaries
where such conflict, breach or default in the aggregate have had or could
reasonably be expected to have a Material Adverse Effect, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of Company or any of Company's Subsidiaries (other than Liens created
under any of the Loan Documents in favor of Administrative Agent on behalf of
Lenders), or (iv) require any approval of or consent of any Person under any
Contractual Obligation of Company or any of Company's Subsidiaries, except for
such approvals or consents which will be obtained on or before the Merger Date
or such approvals or consents the failure of which to obtain has not had and
could not reasonably be expected to have a Material Adverse Effect.
D. GOVERNMENTAL CONSENTS. The execution, delivery and performance
by each of Company and each of its Subsidiaries of this Amendment and the
performance by Company of the Amended Agreement do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other
11
governmental authority or regulatory body other than any such registrations,
consents, approvals, notices or other actions (x) that have been made, obtained
or taken on or prior to the date on which such registrations, consents,
approvals, notices or other actions are required to be made, obtained or taken,
as the case may be, and are in full force and effect or (y) the failure of which
to make, obtain or take has not had and could not reasonably be expected to have
a Material Adverse Effect.
E. BINDING OBLIGATION. Each of this Amendment and the Amended
Agreement has been duly executed and delivered by each Loan Party that is a
party thereto and is the legally valid and binding obligation of such Loan
Party, enforceable against such Loan Party in accordance with its respective
terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
Section 4. ACKNOWLEDGEMENT AND CONSENT
Each of the Subsidiary Guarantors is a party to a Subsidiary Guaranty
and such Subsidiary Guarantor has guarantied the Obligations.
Each Subsidiary Guarantor hereby acknowledges that it has reviewed the
terms and provisions of the Credit Agreement and this Amendment and consents to
the amendment of the Credit Agreement effected pursuant to this Amendment. Each
Subsidiary Guarantor hereby confirms that the Subsidiary Guaranty to which it is
a party or otherwise bound will continue to guaranty to the fullest extent
possible the payment and performance of all "Guarantied Obligations" as such
term is defined in the applicable Subsidiary Guaranty, including without
limitation the payment and performance of all such "Guarantied Obligations" in
respect of the Obligations of Company now or hereafter existing under or in
respect of the Amended Agreement.
Each Subsidiary Guarantor acknowledges and agrees that the Subsidiary
Guaranty to which it is a party or otherwise bound shall continue in full force
and effect and that all of its obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment. Each Subsidiary Guarantor represents and
warrants that all representations and warranties contained in the Amended
12
Agreement and in the Subsidiary Guaranty to which it is a party or otherwise
bound are true, correct and complete in all material respects on and as of the
First Amendment Effective Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true, correct and complete in
all material respects on and as of such earlier date.
Each Subsidiary Guarantor acknowledges and agrees that
(i) notwithstanding the conditions to effectiveness set forth in this Amendment,
such Subsidiary Guarantor is not required by the terms of the Credit Agreement
or any other Loan Document to consent to the amendments to the Credit Agreement
effected pursuant to this Amendment and (ii) nothing in the Credit Agreement,
this Amendment or any other Loan Document shall be deemed to require the consent
of such Subsidiary Guarantor to any future amendments to the Credit Agreement.
Section 5. MISCELLANEOUS
A. Reference to and effect on the Credit Agreement and the other
Loan Documents.
(i) On and after the First Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to the
"Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to the
Amended Agreement.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy
of Agent or any Lender under, the Credit Agreement or any of the other
Loan Documents.
B. FEES AND EXPENSES. Company acknowledges that all costs, fees and
expenses as described in subsection 10.2 of the Credit Agreement incurred by
Agents and their counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Company.
C. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
13
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
E. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment (other than the
provisions of Section 1 hereof, the effectiveness of which is governed by
Section 2 hereof) shall become effective upon the execution of a counterpart
hereof by Company, Requisite Lenders, each of the Tranche B Term Loan Lenders
with an Additional Tranche B Term Loan Commitment, Syndication Agent,
Administrative Agent and the Subsidiary Guarantors and receipt by Company and
Agent of written or telephonic notification of such execution and authorization
of delivery thereof.
[Remainder of page intentionally left blank]
14
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
XXXXXXX AIRCRAFT HOLDINGS, INC.,
a Delaware corporation
By: /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Chief Financial Officer
AEROSPACE DISPLAY SYSTEMS, INC., a Delaware
corporation (for purposes of Section 4 only)
as a Subsidiary Guarantor
By: /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Chief Financial Officer
AUDIO INTERNATIONAL, INC., an Arkansas
corporation (for purposes of Section 4 only)
as a Subsidiary Guarantor
By: /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Chief Financial Officer
AVTECH CORPORATION, a Washington corporation
(for purposes of Section 4 only) as a
Subsidiary Guarantor
By: /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Chief Financial Officer
S-1
XXXX COMPONENTS, INC., a California
corporation (for purposes of Section 4 only)
as a Subsidiary Guarantor
By: /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Chief Financial Officer
XXXXXXXX INDUSTRIES, INC., a Delaware
corporation (for purposes of Section 4 only)
as a Subsidiary Guarantor
By: /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Chief Financial Officer
ELSINORE AEROSPACE SERVICES, INC., a
California corporation (for purposes of
Section 4 only) as a Subsidiary Guarantor
By: /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Chief Financial Officer
ELSINORE ENGINEERING, INC., a California
corporation (for purposes of Section 4 only)
as a Subsidiary Guarantor
By: /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Chief Financial Officer
S-2
XXXXXXXXXXX INTERNATIONAL, INC., a California
corporation (for purposes of Section 4 only)
as a Subsidiary Guarantor
By: /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Chief Financial Officer
TRI-STAR ELECTRONICS INTERNATIONAL, INC., a
California corporation (for purposes of
Section 4 only) as a Subsidiary Guarantor
By: /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Chief Financial Officer
X-0
XXX XXXXXXX XXXXXXX, XXX., as a Tranche B
Term Loan Lender with an Additional Tranche B
Term Loan Commitment, as a Lender and as
Syndication Agent
By: /s/
------------------------------------------
Name:
Title:
S-4
THE FIRST NATIONAL BANK OF CHICAGO, as a
Tranche B Term Loan Lender with an Additional
Tranche B Term Loan Commitment, as a Lender
and as Administrative Agent
By: /s/
------------------------------------------
Name:
Title:
S-5
ANNEX B
INFORMATION TO BE ADDED TO SCHEDULE 5.1
PATS, Inc., a Maryland corporation
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
PATS AIRCRAFT AND ENGINEERING CORPORATION, a Maryland corporation
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
FLIGHT REFUELING, INC., a Maryland corporation
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
XXXXXXX AIRCRAFT TANK SYSTEMS, INC., a Maryland corporation
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
PATS SUPPORT, Inc., a Maryland corporation
0 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
B-1
