<PAGE> 1
EXHIBIT 10.32
FIRST AMENDMENT
This FIRST AMENDMENT dated as of September 10, 1999 (this "Amendment"),
is made by and among (a) MERCURY AIR GROUP INC., a New York corporation (the
"Borrower"), having its principal place of business at 5454 McConnell Avenues,
Los Angeles, California 90066, (b) the direct and indirect Subsidiaries of the
Borrower listed as Guarantors on the signature pages hereto (the "Guarantors"),
(c) BANKBOSTON, N.A., a national banking association, as agent (in such capacity
the "Agent") for the Banks referred to below; and (d) BANKBOSTON, N.A. and the
other financial institutions from time to time parties to the Credit Agreement
referred to below (collectively, the "Banks"). Terms not otherwise defined
herein that are defined in the Credit Agreement referred to below shall have the
respective meanings herein assigned to such terms in the Credit Agreement.
WHEREAS, the Borrower, the Banks and the Agent are parties to that
certain Revolving Credit and Term Loan Agreement dated as of March 2, 1999 (as
amended, modified, supplemented or restated and in effect from time to time, the
"Credit Agreement"); and
WHEREAS, the Borrower has requested that the Agent and the Banks amend
the terms of the Credit Agreement in order, among other things, (i) to permit
the incurrence of certain subordinated debt for the purpose of redeeming the
Borrower's 7-3/4% Convertible Subordinated Debentures due February 1, 2006 (the
"Existing Convertible Debentures"), (ii) to modify the percentage of the
proceeds of equity issuances that must be applied to prepay the Loans, and (iii)
to modify the permitted use of the proceeds of the Acquisition Loans; and
WHEREAS, the Agent and the Banks have agreed, subject to the terms and
conditions set forth in this Amendment, to amend the Credit Agreement as set
forth herein;
NOW, THEREFORE, in consideration of the mutual agreements contained in
the Credit Agreement and in this Amendment and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT. Subject to the
satisfaction of the conditions set forth in Section 4 below, the Credit
Agreement is hereby amended as follows:
<PAGE> 2
-2-
SECTION 1.1. Section 1.1 of the Credit Agreement is hereby amended by
deleting the definitions of the terms "Loan Documents", "Restricted Capital
Expenditures", "Subordinated Debt" and "Subordinated Debt Documents" in their
entirety and by replacing them with the following new definitions:
"Loan Documents. This Credit Agreement, the Notes, the Letter
of Credit Applications, the Letters of Credit, the Fee Letter, the
Security Documents, the Subordination Agreement and all documents
relating to any interest rate protection arrangements entered into
between the Borrower and any Bank.
Restricted Capital Expenditures. Capital Expenditures other
than (i) those made or incurred in connection with the making of
Permitted Acquisitions; provided that Capital Expenditures made or
incurred with respect to the Person, business, division or specified
group of assets so acquired at any time after the making of such
Permitted Acquisition shall be included within the definition of
Restricted Capital Expenditures, (ii) those made or incurred with the
proceeds of the Bonds pursuant to the terms of the Bond Documents and
(iii) those consisting of Approved Projects made or incurred with the
proceeds of the Acquisition Loans.
Subordinated Debt. Unsecured Indebtedness of the Borrower to
WMF in the aggregate principal amount of not more than $24,000,000 and
any guaranties given in respect thereof by the Guarantors, in each case
incurred pursuant to the Subordinated Debt Documents.
Subordinated Debt Documents. Collectively, (i) that certain
Securities Purchase Agreement dated as of September 10, 1999 between
the Borrower and WMF, (ii) the Subordinated Note, (iii) those certain
Subsidiary Guaranties dated as of September 10, 1999 given by certain
of the Guarantors in favor of WMF, and (iv) the other documents and
instruments executed in connection therewith, in each case in the form
delivered to the Agent and the Banks on or prior to the First Amendment
Date."
SECTION 1.2. Section 1.1 of the Credit Agreement is hereby further
amended by inserting the following new definitions in the appropriate places in
the alphabetical order:
"Approved Projects. The purchase or lease by the Borrower or
any of its Subsidiaries of Capital Assets designated as Approved
Projects by the Borrower and approved in writing as such by the Agent
and all of the Banks.
First Amendment Date. The first date on which all of the
conditions to the effectiveness of the First Amendment dated on or
about September 10, 1999 to this Credit Agreement shall have been
satisfied.
<PAGE> 3
-3-
Subordinated Note. That certain 12% Senior Subordinated
Promissory Note due September 9, 2006 dated as of September 10, 1999
made by the Borrower in favor of WMF in the principal amount not to
exceed $24,000,000, in the form delivered to the Agent and the Banks on
or prior to the First Amendment Date.
Subordination Agreement. That certain Subordination Agreement
dated as of September 10, 1999 by and among the Borrower, the Agent and
WMF, in form and substance satisfactory to the Agent.
WMF. J.H. Whitney Mezzanine Fund, L.P., a Delaware limited
partnership."
SECTION 1.3. Section 8.1 of the Credit Agreement is hereby amended by
deleting the words "one hundred percent (100%)" appearing in the tenth and
eleventh lines thereof and by replacing them with the words "seventy-five
percent (75%)."
SECTION 1.4. Section 9.3 of the Credit Agreement is hereby amended by
deleting the first two sentences thereof in their entirety and by replacing them
with the following new sentences:
"All computation of interest on the Loans (other than Base Rate Loans),
Commitment Fees and Letter of Credit Fees shall be based on a 360-day
year and paid for the actual number of days elapsed. All computation of
interest on Base Rate Loans shall be based on a 365-day year and paid
for the actual number of days elapsed."
SECTION 1.5. Section 11.5 of the Credit Agreement is hereby amended by
deleting the final sentence thereof in its entirety and by replacing it with the
following new sentence:
"Since the Balance Sheet Date the Borrower has not made any Restricted
Payments other than (i) the repurchase of the Borrower's Common Stock
on or prior to the Closing Date in the amount of $4,686,000, (ii) the
repurchase prior to the First Amendment Date of the Borrower's 7 3/4%
Convertible Subordinated Debentures due February 1, 2006 in the
aggregate principal amount of $8,213,000, and (iii) the redemption on
amount of up to $19,877,000."
SECTION 1.6. Section 11.17 of the Credit Agreement is hereby amended by
deleting clause (iii) of the third sentence thereof in its entirety and by
replacing such clause with the words "(iii) Approved Projects."
<PAGE> 4
-4-
SECTION 1.7. Section 13.4 of the Credit Agreement is hereby amended by
deleting the parenthetical set forth in clause (i)(A) thereof in its entirety.
Section 13.4 of the Credit Agreement is hereby further amended by deleting
clause (iii) thereof in its entirety and by replacing it with the following new
clause:
"(iii) the prepayment of a portion of the Subordinated Debt upon the
consummation of a Public Offering (as defined in the Subordinated Note
as in effect on the First Amendment Date) in an amount equal to not
more than 25% of the Net Cash Proceeds of such offering in accordance
with the terms of the Subordinated Note, provided that no Default or
Event of Default shall have occurred and be continuing or would result
therefrom."
SECTION 1.8. Section 13.12 of the Credit Agreement is hereby amended by
inserting the words "(other than the Subordinated Debt Documents)" in the third
line thereof between the words "any agreement" and "prohibiting the creation".
SECTION 1.9. Section 17.1(q) of the Credit Agreement is hereby deleted
in its entirety and replaced with the following:
"(q) a "Change in Control" under and as defined in the Subordinated
Note shall have occurred, or a notice of prepayment under Section 4 of
the Subordinated Note shall have been given;"
SECTION 2. GUARANTORS' CONSENT. Each of the Guarantors hereby consents
to the amendments to the Credit Agreement set forth in this Amendment, and each
confirms its obligation to the Agent and the Banks under its Guaranty and agrees
that its guaranty of the Obligations thereunder shall extend to and include the
Credit Agreement as amended by this Amendment.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS; NO DEFAULT;
Authorization. The Borrower hereby represents, warrants and covenants to the
Agent and the Banks as follows:
(a) each of the representations and warranties of the Borrower
contained in the Credit Agreement was true as of the date as
of which it was made and is true as and at the date of this
Amendment, and no Default or Event of Default has occurred and
is continuing as of the date of this Amendment;
(b) this Amendment has been duly authorized, executed and
delivered by each of the Borrowers and Guarantors and is in
full force and effect; and
(c) upon the execution and delivery of this Amendment by the
respective parties hereto, this Amendment shall constitute the
legal, valid and
<PAGE> 5
-5-
binding obligation of the Borrowers and the Guarantors,
enforceable in accordance with its terms, except that the
enforceability thereof may be subject to any applicable
bankruptcy, reorganization, insolvency or other laws affecting
creditors' rights generally.
SECTION 4. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Amendment shall be subject to the satisfaction of the following conditions
precedent:
(a) This Amendment shall have been duly executed and delivered by
the respective parties hereto and shall be in full force and
effect.
(b) The Subordination Agreement shall have been duly executed and
delivered by the respective parties thereto and shall be in
full force and effect, and the Agent shall have received a
fully-executed original counterpart of such document.
(c) Each of the Subordinated Debt Documents shall have been duly
executed and delivered by the respective parties thereto,
shall be in full force and effect, all of the closing
conditions thereunder shall have been satisfied without
waiver, and such documents shall be in form and substance
satisfactory to each of the Banks. The Agent shall have
received a fully-executed copy of each such documents,
certified by the Secretary of the Borrower to be a true,
complete and correct copy of the original.
(d) The Agent shall have received evidence satisfactory to it that
the Borrower has received the proceeds of the Subordinated
Notes and has used such proceeds, in part, to redeem or
repurchase the Existing Convertible Debentures in their
entirety.
(e) After giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing.
SECTION 5. RATIFICATION, ETC. Except as expressly amended hereby, the
Credit Agreement and all documents, instruments and agreements related thereto
are hereby ratified and confirmed in all respects. All references in the Credit
Agreement or any related agreement or instrument to the Credit Agreement shall
hereafter refer to the Credit Agreement as amended hereby.
SECTION 6. NO IMPLIED WAIVER. Except as expressly provided herein,
nothing contained herein shall constitute a waiver of, impair or otherwise
affect any Obligations, any other obligations of any of the Borrowers or
Guarantors or any right of the Agent or any Bank consequent thereon.
<PAGE> 6
-6-
SECTION 7. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL FOR ALL PURPOSES BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICTS OF LAW).
[Remainder of page intentionally left blank]
<PAGE> 7
-7-
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as a sealed instrument as of the date first above written.
Borrower: MERCURY AIR GROUP, INC.
By: /s/ RANDOLPH E. AJER
---------------------------------------
Name: Randolph E. Ajer
Title: Executive Vice President
Guarantors: MAYTAG AIRCRAFT CORPORATION
By: /s/ RANDOLPH E. AJER
---------------------------------------
Name: Randolph E. Ajer
Title: Vice President
MERCURY AIR CARGO, INC.
By: /s/ RANDOLPH E. AJER
---------------------------------------
Name: Randolph E. Ajer
Title: Treasurer
MERCURY ACCEPTANCE
CORPORATION
By: /s/ RANDOLPH E. AJER
---------------------------------------
Name: Randolph E. Ajer
Title: Treasurer
EXCEL CARGO, INC.
By: /s/ RANDOLPH E. AJER
---------------------------------------
Name: Randolph E. Ajer
Title: Treasurer
<PAGE> 8
-8-
MERCURY AIR CENTERS, INC.
(f/k/a Wofford Flying Service, Inc.
By: /s/ RANDOLPH E. AJER
---------------------------------------
Name: Randolph E. Ajer
Title: Treasurer
AEG FINANCE CORPORATION
By: /s/ RANDOLPH E. AJER
---------------------------------------
Name: Randolph E. Ajer
Title: Treasurer
RENE PEREZ AND ASSOCIATES, INC.
By: /s/ RANDOLPH E. AJER
---------------------------------------
Name: Randolph E. Ajer
Title: Chief Financial Officer
HERMES AVIATION, INC.
By: /s/ RANDOLPH E. AJER
---------------------------------------
Name: Randolph E. Ajer
Title: Treasurer
VULCAN AVIATION, INC.
By: /s/ RANDOLPH E. AJER
---------------------------------------
Name: Randolph E. Ajer
Title: Treasurer
<PAGE> 9
-9-
Agent and Banks: BANKBOSTON, N.A.,
individually and as Agent
By: /s/ MICHAEL J. BLAKE
---------------------------------------
Name:
Title:
SANWA BANK CALIFORNIA
By:
---------------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
---------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
---------------------------------------
Name:
Title:
<PAGE> 10
-9-
Agent and Banks: BANKBOSTON, N.A.,
individually and as Agent
By:
---------------------------------------
Name:
Title:
SANWA BANK CALIFORNIA
By: /s/ ROBINSON T. CASPAR
---------------------------------------
Name: Robinson T. Caspar
Title: Vice President
MELLON BANK, N.A.
By:
---------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
---------------------------------------
Name:
Title:
<PAGE> 11
-9-
Agent and Banks: BANKBOSTON, N.A.,
individually and as Agent
By:
---------------------------------------
Name:
Title:
SANWA BANK CALIFORNIA
By:
---------------------------------------
Name:
Title:
MELLON BANK, N.A.
By: /s/ [Signature Illegible]
---------------------------------------
Name: [Name Illegible]
Title: Assistant Vice President
UNION BANK OF CALIFORNIA, N.A.
By:
---------------------------------------
Name:
Title:
<PAGE> 12
-9-
Agent and Banks: BANKBOSTON, N.A.,
individually and as Agent
By:
---------------------------------------
Name:
Title:
SANWA BANK CALIFORNIA
By:
---------------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
---------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By: /s/ THOMAS D. NATIONS
---------------------------------------
Name: Thomas D. Nations
Title: Sr. Vice President
