Exhibit 10.110
AMENDMENT NO. 5
Dated as of January 30, 2004
to
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 12, 2002
This Amendment No. 5 (this "Amendment") dated as of January
30, 2004 is entered into among TMAS/ASI, INC., an Arkansas corporation formerly
known as Aerocell Structures, Inc. ("Aerocell"), TRIAD INTERNATIONAL MAINTENANCE
CORPORATION, a Delaware corporation ("TIMCO"), AIRCRAFT INTERIOR DESIGN, INC., a
Florida corporation ("Design"), TIMCO ENGINE CENTER, INC., a Delaware
corporation ("Engine Center"), and XXXXX MANUFACTURING COMPANY, INC., a
California corporation ("Xxxxx") (Aerocell, TIMCO, Design, Engine Center and
Xxxxx being collectively referred to as the "Borrowers"), and TIMCO AVIATION
SERVICES, INC., a Delaware corporation ("Parent"), AVIATION SALES DISTRIBUTION
SERVICES COMPANY, a Delaware corporation ("Distribution"), AVS/M-2, INC., a
Delaware corporation ("Xxxxx-Xxxxx"), WHITEHALL CORPORATION, a Delaware
corporation ("Whitehall"), AVS/M-3, INC., an Arizona corporation ("Apex"),
AVS/CAI, INC., a Florida corporation ("Caribe"), AVIATION SALES LEASING COMPANY,
a Delaware corporation ("Leasing"), AVIATION SALES PROPERTY MANAGEMENT CORP., a
Delaware corporation ("Property Management"), AVS/M-1, INC., a Delaware
corporation ("Manufacturing"), AVSRE, L.P., a Delaware limited partnership
("AVSRE"), HYDROSCIENCE, INC., a Texas corporation ("Hydroscience"), TIMCO
ENGINEERED SYSTEMS, INC., a Delaware corporation ("Engineered Systems") (Parent,
Distribution, Xxxxx-Xxxxx, Whitehall, Apex, Caribe, Leasing, Property
Management, Manufacturing, AVSRE, Hydroscience and Engineered Systems being
collectively referred to as the "Guarantors"), the "Lenders" (as defined in the
Credit Agreement identified below) a party hereto and Citicorp USA, Inc., in its
capacity as agent for the Lenders and the "Issuing Banks" (as defined in the
Credit Agreement identified below) (in such capacity, the "Agent"). Capitalized
terms used herein without definition are used herein as defined in the Credit
Agreement.
PRELIMINARY STATEMENTS:
WHEREAS, Borrowers, Parent, the Agent and certain financial
institutions, as Lenders and Issuing Banks, are parties to that certain Fifth
Amended and Restated Credit Agreement dated as of July 12, 2002 (as amended,
supplemented or otherwise modified through the date hereof, the "Credit
Agreement");
WHEREAS, the Borrowers have requested the Agent and the
Lenders to extend the Revolving Credit Termination Date and the maturity date
for the Term Loan to 5:00 p.m. (New York time) on February 4, 2004 and to
provide other amendments to the Credit Agreement, all as more fully set forth
herein; and
WHEREAS, the Lenders are willing to amend the Credit
Agreement, in each case on the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Amendments to the Credit Agreement. Upon the "Amendment
Effective Date" (as such term is defined below), the Credit Agreement is hereby
amended as follows effective as of the Amendment Effective Date:
1.1 The definition of "Revolving Credit Termination Date" in
Section 1.01 of the Credit Agreement is hereby amended to delete the date
"January 31, 2004" appearing therein in its entirety and to replace such date
with "5:00 p.m. (New York time) on February 4, 2004".
1.2 Section 2.01(a)(ii)(A) of the Credit Agreement is hereby
amended to delete each reference to the date "January 31, 2004" appearing
therein and to replace each such reference to such date with "5:00 p.m. (New
York time) on February 4, 2004".
1.3 Section 2.01(d) of the Credit Agreement is hereby amended to
delete the date "January 31, 2004" appearing therein in its entirety and to
replace such date with "5:00 p.m. (New York time) on February 4, 2004".
1.4 Section 3.01(a)(iii) of the Credit Agreement is hereby amended
to delete such section in its entirety and to replace such section with the
following section:
"(iii) if the expiration date therefor is later than
the earlier of (A) the date one (1) year after the
date of issuance (without regard to any automatic
renewal provisions thereof) or (B) the Business Day
next preceding the scheduled Revolving Credit
Termination Date; provided, however, any Letter of
Credit that is issued and outstanding as of the Fifth
Amendment Effective Date may have an expiration date
not later than January 31, 2005;"
SECTION 2. Conditions Precedent. This Amendment shall become effective
as of the date hereof (the "Amendment Effective Date") upon the Agent's receipt
of a facsimile or original executed copy of this Amendment executed by the
Parent, each Borrower, each Guarantor, each Lender and the Agent. After giving
effect to this Amendment,
2.1 no "Potential Event of Default" or "Event of Default" shall
have occurred and be continuing under the terms of the Credit Agreement other
than certain Events of Default arising from the failure of TIMCO, Parent and
Xxxxx to deliver to the Agent certain landlord waivers required in connection
with the Fourth Amendment; and
2.2 all of the representations and warranties in this Amendment
shall be true and correct in all material respects.
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SECTION 3. Representations and Warranties; Reaffirmation.
3.1 Parent and each of the Borrowers hereby represents and
warrants that:
(a) This Amendment and the Credit Agreement as previously
executed and delivered and as amended and supplemented hereby
constitute legal, valid and binding obligations of the Parent and the
Borrowers and are enforceable against the Parent and the Borrowers in
accordance with their terms.
(b) Except as described in Section 2.1 above, no Event of
Default or Potential Event of Default exists or would result from any
of the transactions contemplated by this Amendment.
(c) No event of default or default has occurred and is
continuing under the terms of (a) any of the TROL Documents, (b) under
any of the agreements and documents executed with respect to the Senior
Subordinated Notes or under which the Senior Subordinated Notes have
been issued, (c) under any of the agreements and documents executed
with respect to the BofA Note, (d) under any of the agreements and
documents executed with respect to the Junior Subordinated Notes or
under which the Junior Subordinated Notes have been issued or (e) any
of the LJH Note Documents.
(d) None of the holders of the Senior Subordinated Notes,
the trustee under the Indenture under which the Senior Subordinated
Notes were issued, the holders of the Junior Subordinated Notes, the
trustee under the Indenture under which the Junior Subordinated Notes
were issued, the obligees under the TROL Documents (or Person acting on
any such obligee's behalf), the obligees under the BofA Note (except in
connection with the repayment by LJH, Ltd. under its Shareholder
Guaranty executed in connection therewith) or any of the agreements and
documents executed in connection therewith, the obligees under the LJH
Note Documents or any other agent or lender under any credit facility
for the Borrowers or Guarantors shall have commenced the exercise of
any remedies with respect to any default or event of default with
respect thereto.
(e) All obligations under the BofA Note Documents have
been satisfied.
3.2 Parent, each of the Borrowers and each of the Guarantors
hereby reaffirm all covenants, representations and warranties made by it, and
all Obligations owing by it, pursuant to the Credit Agreement (to the extent the
same are not amended hereby), the Notes and the other Loan Documents to which it
is a party and agree that all such covenants, representations and warranties
shall be deemed to have been remade as of the date this Amendment becomes
effective (unless a representation and warranty is stated to be given on and as
of a specific date, in which case such representation and warranty shall be
true, correct and complete as of such date).
SECTION 4. Reference to and Effect on the Credit Agreement.
4.1 Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import shall mean and be a reference to the
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Credit Agreement, as amended hereby, each reference to the Credit Agreement in
any other document, instrument or agreement executed and/or delivered in
connection with the Credit Agreement shall mean and be a reference to the Credit
Agreement as amended hereby.
4.2 Except as expressly set forth herein, neither this Amendment,
nor any actions taken by any Lenders or the Agent shall be deemed or construed
as an amendment of the Loan Documents, or a waiver with respect to any Potential
Event of Default or Event of Default, whether now existing or occurring after
the date hereof, known or unknown, under the Loan Documents. Except as
specifically amended or agreed above, each of the Parent, the Borrowers and the
Guarantors hereby agree that the Credit Agreement, the Notes and all other Loan
Documents shall remain in full force and effect and are hereby ratified and
confirmed.
4.3 The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any Lender or
Issuing Bank or the Agent under the Credit Agreement, the Notes or any of the
other Loan Documents, nor constitute a waiver of any provision contained
therein, except as specifically set forth herein.
4.4 No course of dealing on the part of the Agent or any of the
Lenders, or any such party's officers or representatives, nor any failure or
delay in the exercise of any right by any Lender or the Agent shall operate as a
waiver thereof, and any single or partial exercise of any such right shall not
preclude any later exercise of such right. Further, any failure by any Lender or
the Agent at any time to require strict performance by the Parent, any Borrower
or any of their respective Subsidiaries of any provision of the Loan Documents
shall not affect any right of any Lender or the Agent thereafter to demand
strict compliance and performance thereunder.
SECTION 5. Release.
5.1 The Borrowers and the Guarantors acknowledge that they have no
existing defense, counterclaim, offset, cross-complaint, claim or demand of any
kind or nature whatsoever that can be asserted to reduce or eliminate all or any
part of the Obligations. In consideration for the execution of this Amendment,
each Borrower and each Guarantor hereby releases and forever discharges the
Agent and the other Holders and Citicorp USA, Inc., as holder of the
Supplemental Term Loan Warrant, and all of their respective officers, directors,
employees, Affiliates and agents (collectively, the "Released Parties") from any
and all actions, causes of action, debts, dues, claims, demands, liabilities and
obligations of every kind and nature, both in law and in equity, known or
unknown, whether heretofore or now existing, liquidated or unliquidated, matured
or unmatured, fixed or contingent (collectively, the "Release Claims"), which
might be asserted against any of the Released Parties. This Release applies to
all matters arising out of or relating to any of the Loan Documents, the
Supplemental Term Loan Warrant, any Property of any Borrower or any Guarantor,
any extension of credit to the Borrowers and Guarantors by LJH, Ltd. or any
Obligations, commitment letters with respect to other loan facilities, and the
lending and borrowing relationships, and (to the extent any Release Claims
relating to such deposit relationships are now known to any Borrower or any
Guarantor or any of their Subsidiaries) the deposit relationships, between
Parent or its Subsidiaries, and Citibank, N.A., the Agent and the Holders,
including the administration, collateralization and funding thereof. Each of
Parent and each of its Subsidiaries further agrees not to bring any action in
any judicial, administrative or other proceeding against the Released Parties,
or any of
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them, alleging any such Release Claim or otherwise arising in connection with
any such Release Claim. Without limiting the generality of the foregoing, Parent
and its Subsidiaries release any claims they may have for any overpayment of
interest or Rent prior to the date hereof, and agree that any such claim shall
be deemed a Release Claim for the purpose of this Amendment.
5.2 It is the intent of the parties that except as otherwise set
forth herein, the foregoing release shall be effective as a full and final
accord and satisfaction of all claims hereby released and each of Parent and
each of its Subsidiaries hereby agrees, represents and warrants that the matters
released herein are not limited to matters which are known or disclosed. In this
connection, each of Parent and each of its Subsidiaries hereby agrees,
represents and warrants that it realizes and acknowledges that factual matters
now existing and unknown to it may have given or may hereafter give rise to
Release Claims, which are presently unknown, unsuspected, unliquidated,
unmatured and/or contingent, and it further agrees, represents and warrants that
this release has been negotiated and agreed upon in view of that realization.
Nevertheless, Parent and its Subsidiaries hereby intend to release, discharge
and acquit the Released Parties of and from any such unknown, unsuspected,
unliquidated, unmatured and/or contingent Release Claims, which are in any way
set forth in or related to the matters identified above in this Section 5.
Parent and its Subsidiaries hereby explicitly waive the benefits of any common
law or statutory rule with respect to the release of such Release Claims.
5.3 The acceptance and delivery of this Amendment by the Agent and
the Lenders on behalf of the Released Parties shall not be deemed or construed
as an admission of liability with respect to the Release Claims or otherwise by
the Released Parties, or any of them, and the Released Parties hereby expressly
deny liability of any nature whatsoever arising from or related to the subject
of the release contained in this Section 5.
5.4 Each of Parent and each of its Subsidiaries hereby agrees,
represents and warrants that: (i) such party has not voluntarily, by operation
of law or otherwise, assigned, conveyed, transferred or encumbered, either
directly or indirectly, in whole or in part, any right to or interest in any of
the Release Claims purported to be released by this Section 5; (ii) such party
has had advice of counsel of its own choosing in negotiations for and the
preparation of this Amendment; and (iii) such party is fully aware of the effect
of releases such as that contained in this Section 5.
SECTION 6. Execution in Counterparts. 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 to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 8. Miscellaneous. This Amendment is a Loan Document. Section
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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first above written.
Agent and Lenders:
CITICORP USA, INC., CITIGROUP FINANCIAL PRODUCTS INC.
as Agent and as a Lender and as holder of (f/k/a Salomon Brothers Holding
the Supplemental Term Loan Warrant Company, Inc.)
By:______________________________ By:______________________________
Xxxxx X. Xxxxxxx Name:
Vice President Title:
UPS CAPITAL CORPORATION ARK CLO 2000-1, LIMITED
By: Patriarch Partners, LLC,
its Collateral Manager
By:______________________________
Name:
Title: By:______________________________
Name:
Title:
Borrowers and Guarantors:
TMAS/ASI, INC.(formerly known as Aerocell TRIAD INTERNATIONAL MAINTENANCE
Structures, Inc.) CORPORATION
By:____________________________________ By:______________________________________
C. Xxxxxx Xxxxxxxx C. Xxxxxx Xxxxxxxx
Vice President and Chief Financial Officer Vice President and Chief Financial Officer
AIRCRAFT INTERIOR DESIGN, INC. TIMCO ENGINE CENTER, INC.
By:____________________________________ By:______________________________________
C. Xxxxxx Xxxxxxxx C. Xxxxxx Xxxxxxxx
Vice President and Chief Financial Officer Vice President and Chief Financial Officer
TIMCO AVIATION SERVICES, INC. AVIATION SALES DISTRIBUTION
SERVICES COMPANY
By:____________________________________ By:______________________________________
C. Xxxxxx Xxxxxxxx C. Xxxxxx Xxxxxxxx
Vice President and Chief Financial Officer Vice President and Chief Financial Officer
AVS/M-2, INC. WHITEHALL CORPORATION
By:____________________________________ By:______________________________________
C. Xxxxxx Xxxxxxxx C. Xxxxxx Xxxxxxxx
Vice President and Chief Financial Officer Vice President and Chief Financial Officer
AVS/M-3, INC. AVS/CAI, INC.
By:____________________________________ By:______________________________________
C. Xxxxxx Xxxxxxxx C. Xxxxxx Xxxxxxxx
Vice President and Chief Financial Officer Vice President and Chief Financial Officer
AVIATION SALES LEASING COMPANY AVIATION SALES PROPERTY
MANAGEMENT CORP.
By:____________________________________ By:______________________________________
C. Xxxxxx Xxxxxxxx C. Xxxxxx Xxxxxxxx
Vice President and Chief Financial Officer Vice President and Chief Financial Officer
AVS/M-1, INC. AVSRE, L.P.
By: Aviation Sales Property Management
Corp. as General Partner
By:____________________________________
C. Xxxxxx Xxxxxxxx
Vice President and Chief Financial Officer By:______________________________________
C. Xxxxxx Xxxxxxxx
Vice President and Chief Financial Officer
HYDROSCIENCE, INC. TIMCO ENGINEERED SYSTEMS, INC.
By:____________________________________ By:______________________________________
C. Xxxxxx Xxxxxxxx C. Xxxxxx Xxxxxxxx
Vice President and Chief Financial Officer Vice President and Chief Financial Officer
XXXXX MANUFACTURING COMPANY, INC.
By:____________________________________
C. Xxxxxx Xxxxxxxx
Vice President and Chief Financial Officer
