Exhibit 10.1
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment"),
is made and entered into as of April 13, 2005, 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 amend the Credit Agreement to permit the acquisition of
substantially all of the assets of Connectronics Corp. and Wiremax Ltd. in
addition to the $30,000,000 basket for mergers and acquisitions otherwise
permitted in Section 7.4(b) of the Credit Agreement, and to extend the Revolving
Commitment Termination Date, 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. Amendments.
(i). The definition of "Revolving Commitment Termination Date" in the
Credit Agreement is hereby amended by replacing such definition in its entirety
with the following:
"Revolving Commitment Termination Date" shall mean the
earliest of (i) May 15, 2008, 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).
(ii). Section 7.4(b) of the Credit Agreement is hereby amended by
replacing such subsection in its entirety with the following:
(b) enter into any one or more mergers, consolidations or
acquisitions having a total cash purchase price in excess of Thirty
Million Dollars ($30,000,000) in the aggregate in any trailing
twelve-month period, other than the acquisition of substantially all of
the assets of Connectronics Corp., an Ohio corporation
("Connectronics"), and Wiremax Ltd., an Ohio limited liability company
("Wiremax"), pursuant to the terms of that certain Asset Purchase
Agreement, dated as of December 7, 2004, among Connectronics, Wiremax,
Connectronics Acquisition Corp., HEICO Electronics Technologies Corp.
and the owners set forth on the signature page thereof;
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 (i) reimbursement
or payment of its costs and expenses incurred in connection with this Amendment
(including reasonable fees, charges and disbursements of King & Spalding LLP,
counsel to the Administrative Agent), (ii) executed counterparts to this
Amendment from the Borrower, each of the Subsidiary Loan Parties and the Lenders
and (iii) the following Loan Documents:
a) A Subsidiary Guaranty Supplement duly executed by
Connectronics Corp.; HNW2 Building Corp.; JA
Engineering I Corp.; JA Engineering II Corp.; Sierra
Microwave Technology, LLC and Lumina Power, Inc.
(collectively, the "New Subsidiaries"), in form and
substance satisfactory to the Administrative Agent;
b) A Joinder to the Security Agreement, together with a
Patent Security Agreement, Trademark Security
Agreement and authorization to file UCC financing
statements or similar instruments as requested by the
Administrative Agent, in each case duly executed by
each New Subsidiary and in form and substance
satisfactory to the Administrative Agent;
c) A supplement to the Pledge Agreement by Borrower to
pledge all of the Capital Stock of each New
Subsidiary together with certificates evidencing such
Capital Stock and appropriate stock powers executed
in blank, in each case in form and substance
satisfactory to the Administrative Agent;
d) Any landlord waiver agreements required pursuant to
Section 5.18 of the Credit Agreement, in form and
substance satisfactory to the Administrative Agent;
and
e) Such other documents, certificates or information as
the Administrative Agent or the Required Lenders may
reasonably request, all in form and substance
reasonable satisfactory to the Administrative Agent
or the Required Lenders.
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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 that:
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) Since the execution of the Credit Agreement, the following
Subsidiaries have been merged into the Borrower or other Subsidiary Guarantors
and are no longer in existence: (i) ATI Heat Treat Corporation; (ii) Jet Avion
Heat Treat Corporation; (iii) N.A.C. Acquisition Corporation; (iv) Kinetic
Technologies, Inc.; (v) Air Radio & Instruments Corp.; (vi) TSI Quality
Honeycomb Holdings Corp.; (vii) HEICO Engineering Corporation; (viii)
HEICO-NEWCO, Inc.; (ix) HEICO-JET Corporation; (x) Associated Composite, Inc.
and (xi) HEICO Bearings Corp.
c) This Amendment and each of the 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;
d) at the time of and immediately after giving effect to this
Amendment, no Default or Event of Default shall exist;
e) 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); and
f) 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.
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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 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, ail
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.
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.
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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.
12. Waiver. Upon satisfaction of the conditions precedent set
forth above, the Lenders waive any Default or Event of Default that may have
arisen under Section 5.17 and 5.18 of the Credit Agreement in connection with
the formation or acquisition of the New Subsidiaries.
[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:
NORTHWINGS ACCESORIES CORP.
By:
---------------------------------
Name:
Title:
HNW BUILDING CORP.
By:
---------------------------------
Name:
Title:
6
XXXXXXX INTERNATIONAL, INC.
By:
---------------------------------
Name:
Title:
XXXXXXX PROPERTY CORP.
By:
---------------------------------
Name:
Title:
XXXXXX-XXXXXX, INC.
By:
---------------------------------
Name:
Title:
TURBINE KINETICS, INC.
By:
---------------------------------
Name:
Title:
THERMAL STRUCTURES, INC.
By:
---------------------------------
Name:
Title:
FUTURE AVIATION, INC.
By:
---------------------------------
Name:
Title:
AVITECH ENGINEERING CORPORATION
By:
---------------------------------
Name:
Title:
ATK ACQUISITION CORP.
By:
---------------------------------
Name:
Title:
AVIATION FACILITIES, INC.
By:
---------------------------------
Name:
Title:
7
HEICO AEROSPACE PARTS CORP.
By:
---------------------------------
Name:
Title:
JETSEAL, INC.
By:
---------------------------------
Name:
Title:
HEICO AEROSPACE C&A CORP.
By:
---------------------------------
Name:
Title:
AD HEICO ACQUISITIONS CORP.
By:
---------------------------------
Name:
Title:
AERODESIGN, INC.
By:
---------------------------------
Name:
Title:
BATTERY SHOP, L.L.C.
By:
---------------------------------
Name:
Title:
NIACC TECHNOLOGY, INC.
By:
---------------------------------
Name:
Title:
HEICO ELECTRONIC TECHNOLOGIES CORP.
By:
---------------------------------
Name:
Title:
RADIANT POWER CORP.
By:
---------------------------------
Name:
Title:
LEADER TECH, INC.
By:
---------------------------------
Name:
Title:
8
SANTA XXXXXXX INFRARED, INC.
By:
---------------------------------
Name:
Title:
000 XXXXXX XXXX CORP.
By:
---------------------------------
Name:
Title:
ANALOG MODULES, INC.
By:
---------------------------------
Name:
Title:
INERTIAL AIRLINE SERVICES, INC.
By:
---------------------------------
Name:
Title:
HEICO EAST CORPORATION
By:
---------------------------------
Name:
Title:
LENDERS:
SUNTRUST BANK, as Administrative Agent,
as Issuing Bank, as 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:
9
COMMERCEBANK, N.A.
By:
---------------------------------
Name:
Title:
NORTHERN TRUST BANK OF FLORIDA N.A.
By:
---------------------------------
Name:
Title:
ISRAEL DISCOUNT BANK OF NEW YORK
By:
---------------------------------
Name:
Title:
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